Public acknowledgements of colonial legacy in east Africa by Britain, German and Belgium can be classified under broad framework of transitional justice
On his official visit to Kenya, King Charles III acknowledged Britain’s colonial era “wrongdoings”. He also paid tribute to Kenyan soldiers who had participated in the first and second world wars on behalf of Britain. His visit coincided with Kenya’s 60th independence anniversary.
British colonial rule in Kenya was characterised by injustices. Among these were forceful dispossession of indigenous people’s land, torture, detention and brutal suppression of anti-colonial movements.
An excerpt from King Charles’s speech is useful to decipher the value and implications of his apology, from an international law perspective:
The wrongdoings of the past are a cause of the greatest sorrow and the deepest regret. There were abhorrent and unjustifiable acts of violence committed against Kenyans as they waged, as you said at the United Nations, a painful struggle for independence and sovereignty – and for that, there can be no excuse. In coming back to Kenya, it matters greatly to me that I should deepen my own understanding of these wrongs, and that I meet some of those whose lives and communities were so grievously affected.
The legacy of colonial rule is similarly apparent in other east African contexts. German president Frank-Walter Steinmeier recently extended a similar gesture in Tanzania over the brutal suppression of anti-colonial movements. In 2020, Belgium’s King Philippe expressed regrets about the colonial legacy in the Democratic Republic of the Congo.
Are public acknowledgements like this just symbolic? Or do they have the potential to elicit reparations under international law?
As an academic and practitioner of international law and transitional justice, I have worked (as a visiting professional) in the Office of Public Counsel for Victims at the International Criminal Court.
It is my view that these public acknowledgements of colonial legacy in east Africa by Britain, German and Belgium can be classified under the broad framework of transitional justice, as opposed to mere international relations or politics.
Transitional justice generally implies both the judicial and non-judicial measures aimed at redressing legacies of human rights abuses. It is different from the traditional view on justice as it provides avenues to redress mass atrocity, in this case, colonial legacies. Measures under transitional justice range from the formation of truth commissions to criminal prosecution and reparation programmes. The process of memorialisation through museums and monuments is another important tool in the transitional justice process.
International human rights law provides the standards on transitional justice. It has four pillars: prosecutions, truth telling (truth commissions), reparations and institutional reform.
Truth commissions: These are temporary quasi-judicial inquiries. They are normally commissioned by states to investigate previous wrongdoings and make recommendations.
Belgium, for instance, set up a Special Parliamentary Commission to deal with the country’s colonial legacy. It was the first of its kind in Europe and ended in December 2022. No concrete proposals came out of it. The government did not show serious interest in the work of the commission.
Criminal prosecutions: This is not a real option because colonial crimes are state crimes. The International Criminal Court deals with cases of individuals, not states. And it only considers crimes committed after the Rome Statute came into force, in 2002.
Reparative justice: Apologies and memorials are forms of reparation. But these are incomplete without material aspects like restitution or monetary compensation to a group of victims. International law does not offer specific guidance on reparations for colonial state crimes.
Britain could be guided on reparations by UN’s Articles on responsibility of states (for internationally wrongful acts) adopted by the International Law Commission in 2001. The UN also has a set of basic principles on remedies for victims of human rights violations.
Reparations for state colonial crimes should take full account of individual and collective harm. But this has never been done before.
The governments in the former colonies are politically oriented to maintain friendly bilateral relations with the western powers. Thus the voices of the families of victims of colonial atrocities remain peripheral.
International law and the framework of transitional justice push the envelope beyond symbolism, and offer potential for actual reparations, but also foster reconciliation.
There is a historical background to this admission of guilt and commitment to Kenya. In the past decade, Kenyan groups have filed a series of colonial-era compensation claims in the UK, relating to Britain’s brutal suppression of the Mau Mau insurgency. In 2013, when Kenya was marking its 50th independence anniversary, the UK Foreign Office announced it would be settling claims of Kenyans relating to the Mau Mau events. The British government also promised to fund the construction of a memorial in Nairobi. This was largely a negotiated settlement out of court, and not an outcome of a judicial inquiry.
King Charles III’s recent apology is not an isolated event, but rather a reflection of the progress Kenya has made in seeking redress.
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