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	Kenyan Mau Mau seek legal settlement by Ian Cobain and Jessica Hatcher in Nairobi The Guardian   May 2013   Payments to thousands who were tortured during 1950s insurgency could open door for other victims of British colonial rule.   The British government is negotiating payments to thousands of Kenyans who were detained and severely mistreated during the 1950s Mau Mau insurgency in what would be the first compensation settlement resulting from official crimes committed under imperial rule.   In a development that could pave the way for many other claims from around the world, government lawyers embarked upon the historic talks after suffering a series of defeats in their attempts to prevent elderly survivors of the prison camps from seeking redress through the British courts.   Those defeats followed the discovery of a vast archive of colonial-era documents which the Foreign Office (FCO) had kept hidden for decades, and which shed new and stark light on the dying days of British rule, not only in Kenya but around the former empire.   In the case of the Mau Mau conflict, the secret papers showed that senior colonial officials authorised appalling abuses of inmates held at the prison camps established during the bloody conflict, and that ministers and officials in London were aware of a brutal detention regime in which men and women were tortured and killed.   As a handful of details began to emerge last week from the confidential talks between lawyers for the government and the Mau Mau veterans, the FCO said it acknowledged the need for debate about Britain"s past, and added: "It is an enduring feature of our democracy that we are willing to learn from our history." Up to 10,000 former prisoners may be in line for compensation, if the talks result in a settlement. Although the individual amounts will vary greatly, the total compensation is likely to run into tens of millions of pounds.   The British Foreign Office knows that compensation payments to Mau Mau veterans are likely to trigger claims from other former colonies. Any such claims, if successful, would not only cost the British Government many millions of pounds; they could result in testimony and the emergence of documentary evidence that would challenge long-cherished views of the manner in which Britain withdrew from its empire.   Former Eoka guerrillas who were imprisoned and allegedly mistreated by the British in 1950s Cyprus are already considering bringing claims against the British government.   The archives of the International Committee of the Red Cross show that its inspectors documented widespread use of torture in British prisons during that insurgency, with some individuals being waterboarded, with kerosene mixed into the water.   Historians and personal injury lawyers believe strong claims could be made on behalf of individuals who were imprisoned during the 1960s insurgency in the colony of Aden, now part of Yemen. Papers from the time show abuses inflicted upon prisoners were carefully documented by British officers, and that senior colonial officials kept the FCO informed.   Documentary evidence could also support compensation claims from Swaziland in southern Africa and British Guiana, now Guyana, in South America. However, as a result of a number of rulings in the House of Lords, no damages claims arising from events before 1954 can be brought in the English courts. During the process of decolonisation, the eight-year insurgency known as the Mau Mau uprising was possibly the most bloody conflict in which the British became embroiled, with up to 30,000 Kenyan deaths, both insurgent and loyalist.   Thousands of people – estimates vary from 80,000 to 300,000 – were detained in a network of camps that were described in one Pulitzer-winning history of the conflict as Britain"s gulag.   Official papers from the time confirm that prisoners suffered appalling abuses. Some died under torture, with colonial officials writing about prisoners being "roasted alive". In one of the few prosecutions brought against the torturers, in December 1954, a Nairobi judge, Arthur Cram, compared the methods employed to those of the Gestapo.   One of those abused was Hussein Onyango Obama, the grandfather of Barack Obama. According to his widow, British soldiers forced pins into his fingernails and buttocks and squeezed his testicles between metal rods. Two of the original five claimants who brought the test case against the British government were castrated.   It was not until the Kenyan government lifted the ban on the Mau Mau in 2002 that survivors of the camps began to consider legal action, however, and it was a further six years before they asked the high court in London for permission to sue the British government for damages.   Government lawyers argued that the claim should not be heard, initially arguing that under the legal principle of state succession, the Mau Mau veterans should be suing the Kenyan government and not the British. A number of historians, called as expert witnesses in the case, realised that the government"s disclosure of documentation was incomplete. This in turn led to the disclosure of the existence of the enormous secret archive at Hanslope Park in Buckinghamshire, a repository for more than 8,000 files from 37 former colonies.   Among them was a damning memo from the colony"s attorney general, Eric Griffith-Jones, a man who had described the mistreatment of the detainees as "distressingly reminiscent of conditions in Nazi Germany or Communist Russia". Despite his misgivings, Griffith-Jones agreed to draft new legislation that sanctioned beatings, as long as the abuse was kept secret. "If we are going to sin," he wrote, "we must sin quietly."   When the claimants gave evidence at the high court in London last year, Wambugu Wa Nyingi told how he was detained on Christmas Eve 1952 and held for nine years, much of the time in manacles. He was beaten unconscious during a particularly notorious massacre at a camp at Hola in which 11 men died.   "I feel I was robbed of my youth and that I did not get to do the things I should have done as a young man," he said. "There is a saying in Kikuyu that old age lives off the years of youth, but I have nothing to live off because my youth was taken from me."   Faced with the secret archive evidence and the expert witnesses, government lawyers conceded that the allegations made by Nyingi and the other claimants were true, but continued to oppose their attempt to bring their case, arguing that too much time had elapsed for there to be a fair trial.   That was rejected by the high court last October, with the judge ruling that a fair trial remained possible. "The documentation is voluminous," he said. "And the governments and military commanders seem to have been meticulous record keepers."   The FCO announced that it would appeal against a judgment that had "potentially significant and far-reaching legal implications", and a hearing was due to be held later this month. The government also faced considerable international political pressure, with the United Nations special rapporteur on torture, Juan Méndez, calling publicly on the government to "provide full redress to the victims, including fair and adequate compensation", and writing privately to David Cameron, along with two former special rapporteurs, to warn that the government"s position was undermining its moral authority across the world.   "In our view the response of the British government to vulnerable and elderly victims of (acknowledged) British torture is shameful," they wrote.   Last month the FCO told the claimants lawyers, Leigh Day, that it wished to adjourn the appeal and start negotiating a settlement.   In Nairobi, the Kenya Human Rights Commission compiled a list of around 50,000 people whose claims to be Mau Mau veterans were confirmed by a government committee. This list has since been divided into five categories. George Morare, senior programme officer with the commission, said that any compensation agreed would be paid only to members of one category: "Those who can show they suffered personal injury and grievous bodily harm, such as castration or rape."   Tom Mboya, a former political adviser to the British high commission in Nairobi who now runs the Kenyan civil rights group Inuka, said: "Symbolically, a payout by the British government might provide further validation for the younger generation of the role the Mau Mau played in the struggle for independence in this country. Recent struggles often obstruct our ability to look at how far we have come as a country, and indeed, where we have come from. It is critically important that younger Kenyans understand this history."   Dan Leader, a partner with Leigh Day, said: "The parties are currently exploring the possibility of settling the claims brought by our clients. Clearly, given the ongoing negotiations, we can"t comment further."   The Foreign Office also said that it would be "inappropriate" to discuss the talks. In a prepared statement, however, it added: "We believe there should be a debate about the past. It is an enduring feature of our democracy that we are willing to learn from our history.   "We understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the Emergency period in Kenya. It is right that those who feel they have a case are free to take it to the courts.   "Our relationship with Kenya and its people has moved on and is characterised by close co-operation and partnership, building on the many positives from our shared history."   http://www.guardian.co.uk/law/human-rights Visit the related web page
	Despite progress significant challenges to address adverse business impacts on human rights by Michael Addo, Puvan Selvanathan UN Working Group on business and human rights   May 2013   The United States still faces significant challenges to address the adverse impacts of business activities on human rights, despite progress and innovation in key sectors of the economy, a United Nations expert group said at the end of a ten-day mission to the country.   “The US Government has committed to the UN Guiding Principles on Business and Human Rights, and established a number of key initiatives in this regard,” said human rights expert Michael Addo, member of the UN Working Group on business and human rights delegation.   “It is now facing the challenge of putting them into practice, across all departments, ensuring that this is done in a coherent and effective way, and in a way that makes a real difference to people on the ground,” he stressed.   From the low wage industries in the services sector, the UN experts heard allegations of significant and widespread labor practices that, if correct, would be both illegal under US laws, as well as fall below international standards.   “Despite innovative initiatives to address this problem, these seemed insufficient, and the legal and regulatory framework provides weak deterrents to illegal behavior, too many loopholes to avoid compliance and little incentive for companies to behave responsibly, according to the allegations we heard,” warned rights expert Puvan Selvanathan, the other member of the Working Group delegation who visited the US.   In the extractives sector, the experts noted the allegations of significant human rights impacts of surface mining, particularly the rights to health and water, and the deep divisions between stakeholders on the most effective ways of assessing and addressing the impacts.   They also heard allegations of impacts from a range of business activities on the rights of Native Americans, particularly as regards the lack of free, prior and informed consent for projects affecting them and sites of cultural and religious significance to them, as well as issues of discrimination.   “With a few exceptions, most companies still struggle to understand the implications of the corporate responsibility to respect human rights. Those that do have policies in place, in turn face the challenge of turning such policies into effective practices,” Mr. Selvanathan said.   “Much more awareness-raising and education needs to take place,” Mr. Addo underscored. “Effective implementation of the Guiding Principles by companies requires first and foremost a good understanding of the processes involved, mobilization of significant buy-in and commitment from the top of a company.”   The UN expert group noted the extensive range of efforts by federal, state and local authorities, as well as by Congress, companies, trade unions, civil society, academia, professional organizations, and multi-stakeholder initiatives to prevent and address human rights impacts of business in the US and overseas.   Examples include Government efforts to promote better business practice through disclosure requirement, marshaling efforts against human trafficking, forced and child labor, and raising awareness of the Guiding Principles.   Other stakeholders also had innovative approaches to address some of the governance gaps that allow such abuses to happen – from collaboration between trade unions and companies in California to address US labor law violations, to buyers, growers and workers operating a market based and independently monitored mechanism to pay a living wage for tomato pickers in Florida, and enhance their working conditions, thereby addressing long standing endemic abuses.   During its visit, the Group’s delegation met stakeholders in Washington D.C. as well as in Florida, California, West Virginia, New York and Arizona. The Working Group will present detailed observations and recommendations from its visit in a report to be presented to the Human Rights Council in June 2014.   May 2013   UN finds “Little Appreciation” for Human Rights among US Businesses, by Carey L. Biron. (IPS)   A United Nations expert group is warning that too many gaps remain in implementing new safeguards among businesses based in the United States, both in terms of their domestic and international operations, to ensure the protection of human rights of workers and communities affected by those operations.   Two members of the U.N. Working Group on Business and Human Rights wrapped up a 10-day fact-finding mission to the United States this week, at the end of which they released initial observations. Ultimately, these will be expanded upon and finalized for presentation to the U.N. Human Rights Council in June 2014.   “With a few exceptions, most companies still struggle to understand the implications of the corporate responsibility to respect human rights,” Puvan Selvanathan, the current head of the Working Group and one of the two members on the U.S. trip, said at the end of the mission “Those that do have policies in place, in turn, face the challenge of turning such policies into effective practices.”   Selvanathan and his colleague, Michael Addo, focused on gauging U.S. adherence to and regulatory changes following the 2011 adoption of the U.N. Guiding Principles on Business and Human Rights. These principles offer the first international standards aimed at ameliorating the negative rights impacts of global business.   Although the United States is a signatory to the Guiding Principles, Washington has not yet come up with a national plan for their implantation, a gap highlighted by the Working Group and long emphasized by civil society.   “We were pleased that the Working Group engaged with civil society organizations, including human rights, environmental, labor and indigenous groups,” Amol Mehra, director of the International Corporate Accountability Roundtable (ICAR), a Washington-based coalition, told IPS.   “We believe that the U.S. government has much farther to go in fulfilling its duty to protect human rights under the Guiding Principles … and we also note the Working Group’s call to the U.S. government to develop a National Action Plan for implementation of the Guiding Principles.”   Both Mehra and the Working Group also noted the recent U.S. Supreme Court decision known as Kiobel vs. Royal Dutch Shell. That case, decided just weeks ago, will now “significantly limit access to judicial remedy for victims of corporate-related human rights abuse,” Mehra said.   The Working Group, meanwhile, noted that further analysis was still necessary to understand the “full implications” of the judgement.   In late April, ICAR and a group of civil society groups sent a brief to the U.S. State Department outlining a series of recommendations to bring the country closer in line with the Guiding Principles and to strengthen related indicators.   The brief’s three central recommendations, in addition to developing a national implementation plan, include strengthening remedies for human rights violations. It also calls on regulators to mandate that U.S. corporations incorporate human rights into their “due diligence”, the legally mandated inquiries that companies must take ahead of a business sale or agreement.   Currently, such a step regarding human rights impact is not required.   “Our overall concern is that quite a bit more needs to be done on this issue in the United States, and we’re looking for regulatory mechanisms that can hold businesses to account on human rights,” Corinna Gilfillan, head of the U.S. office of Global Witness, a watchdog group, told IPS.   “In particular, we’re asking that the U.S. government mandates human rights due diligence, looks into how laws can be structured around this issue. And, of course, we’re also asking that U.S. government institutions themselves act in accordance with human rights norms.”   The early notes from the Working Group do offer positive reports on local-level engagement in line with the Guiding Principles, as well as on important strengthening of U.S. policy and regulation, including bolstering disclosure standards. Movement towards broad implementation, however, appears to be taking place only slowly.   “The U.S. government has committed to the Guiding Principles, and established a number of key initiatives in this regard,” the Working Group’s Michael Addo stated Wednesday, when he and Selvanathan unveiled their early observations here in Washington.   “But it is now facing the challenge of putting them into practice, across all departments, ensuring that this is done in a coherent and effective way, and in a way that makes a real difference to people on the ground.”   Selvanathan and Addo pointed to “significant gaps” in oversight, regulation and enforcement in the context of U.S. attempts to conform to the Guiding Principles. Yet they said the responsibility goes beyond government officials.   “There is negligible awareness of the Guiding Principles generally among U.S. stakeholders,” they note in an eight-page concluding statement seen by IPS, “and, it seems, little appreciation of human rights being material to the conduct of business in the U.S.”   Speaking with reporters and civil society on Wednesday, the Working Group voiced particular concerns regarding low-wage agricultural workers, lack of free and prior informed consent for Native American communities engaging with big business, and harmful practices by the domestic extractives industry.   Indeed, Selvanathan and Addo reserved some of their strongest language for these issues. For instance, they reported having heard “allegations of labor practices in low-wage industries with migrant workers, particularly within the services sector, that would be illegal under both U.S. laws and international standards.”   Such violations reportedly include violations of minimum wage requirements, wage theft and “chronic disregard for minimum health and safety measures”.   The two also singled out the extractives industry, traveling to the state of West Virginia, in the Appalachian Mountains, to talk to communities living near strip mines and so-called “mountaintop removal” mining operations.   There, they were told of “significant adverse human rights impacts, most notably related to the enjoyment of the rights to health and water”, and also heard allegations of intimidation and harassment by those opposed to surface mining.   “I am hopeful that our visit from the United Nations is a sign that they’re starting to take notice of the human rights atrocities being committed in Appalachia today,” Junior Walk, a campaigner with Coal River Mountain Watch, a local advocacy group, said in a statement.   “It’s a sad thought that our politicians are so crooked that we have to ask the United Nations for help, but no one else will listen.” Visit the related web page
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