The trial at Kapenguria and detention

Introduction

From the 20 October 1952 Kaggia would be under some form of imprisonment until 17 November 1961. For the first three weeks he was taken to Marsabit. Then, till April 1953, he was ‘remanded’ at Kapenguria where the trial took place of the ‘Kapengura Six’: Jomo Kenyatta, Achieng’ Oneko, Paul Ngei, Fred Kubai, Kungu Karumba and Bildad Kaggia. Nowadays these Six are also refered to as the ‘founding fathers’ of Kenya. After the trial the Six were imprisoned at Lokitaung, an outpost in the most remote part of Kenya. Except for Oneko, they stayed for six years at Lokitaung. Later they were restricted at Lodwar. Kaggia left Lodwar in 1961. He was the last one of the Kapenguria Six to be freed.

The obvious and proper place for the trial was Nairobi. However, the Government feared arousing public interest and antagonising the mass of Africans and therefore selected Kapenguria, an isolated and ‘restricted’ area. In order to make a trial at Kapenguria legal, on arrival at Kapenguria the Kapenguria Six were released from custody and immediately re-arrested, thus creating jurisdiction for Kapenguria.

KAU had organized a strong international defence team under the leadership of D.N. Pritt, a distinguished British and internationally famous lawyer. Pritt was joined by Chaman Lall (India), H.O. Davies (Nigeria), Davis (Scotland), Dudley Thomson (a Jamaican from Tanganyika), A.R. Kapila (Kenya), Fitz de Souza (Kenya) and Jaswant Singh (Kenya).

Mr Thacker, a Kenyan settler and a former judge of the Supreme Court of Kenya, who had retired on reaching the age-limit, was appointed for the case. He had a reputation for handing down tough convictions and sentences. That must have been why he was called out of retirement and appointed as magistrate for our case. Later it turned out that he had demanded £20,000 for a conviction of the accused. This demand was not passed through the Attorney General, but was accepted by the Governor and paid from the Emergency Fund.

The Kapenguria trial

At the Kapenguria trial the Six were accused of exciting disaffection against the Government, being members of Mau Mau, assisting and managing Mau Mau, and forcing people to take an oath binding them to Mau Mau.

Their lawyers suspected that the Government originally had not intended to bring them to trial. Then, under pressure from the British Parliament and press, it was forced to put together a case hurriedly. When the trial started, the prosecution began in a very loud threatening tone. The Six even started to believe that the Crown had real evidence against them. But they had nothing.

Unusual evidence was admitted in their cases. One issue was whether incidences before the proscription of Mau Mau were admissible in evidence. It seemed ridiculous to suggest that a man can be convicted of managing an unlawful society after it has become unlawful, on evidence that when it was perfectly lawful he had to do something with it. It is like saying that one can be convicted of exceeding the speed-limit on a road because one used to drive fast along that road before a speed limit was imposed, although there is no evidence that one ever did so afterwards. The judge, however, ruled this admissible as it showed, in his opinion, other alleged associations with Mau Mau afterwards ‘highly probable’ and later the judge used it even as prove for establishing the case.

Apart from the fact of admissibility, there was the very important question whether, for instance, this incident was satisfactorily proved. There was only one witness (Macharia) who described an initiation ceremony in March 1950, when Mau Mau was thus still legal. The defense called ten witnesses who had been at the ceremony according to the testimony of Macharia himself and all of them denied there had been an initiation ceremony. Pritt described Macharia in his final submission as ‘utterly untrustworthy and to be wholly disregarded’ and ‘almost pathological untruthful’. In his judgement Thacker said: ‘I disbelieve the ten witnesses for the defence and believe one witness for the prosecution. I have no hesitation whatever in doing so.’ Pritt noted cynically that it was one of the axioms of Europeans life in Kenya, dinned into the ears of every British newcomer that ‘all Kikuyus are liars’, but that he observed in this case that when a Kikuyu by one means or the other was brought into court to give evidence for the prosecution, he was treated as a most trustful person, however improbable his story might be, whereas every Kikuyu who appeared for the defense was considered to be a liar.

The evidence against Kaggia was mainly that someone travelling with him in a car had sold a Kikuyu song book to a police officer, that Kaggia tried to recruit Otto Munguti into Mau Mau (not that he administered any oath to him), that he was a member of the KAU executive committee, and that in one KAU executive committee meeting Kenyatta said that Mau Mau was a religion. Kaggia considered this evidence a joke.

In describing and analysing the prosecution’s evidence Pritt said, ‘What does the Crown case add up to? What do we get? A certain number of police officers who proved very little, a certain number of self-confessed informers, a certain number of accomplices and of these forty-four witnesses, there was not a single one except Meruke (the official records give pseudonyms to protect the witnesses and the real name was Rawson Macharia), who claimed to have attended a Mau Mau meeting since the middle of 1950.’

Judgement

In his judgement Thacker said ‘Kaggia spoke English very well and much of his evidence was taken up in recounting his religious beliefs. Apparently he lived for some time as a Christian, but no longer relies upon the Bible, and is to all intents and purposes a pagan. I do not regard him as a truthful witness.’ Kaggia was left wondering, whether he was being on trial for being a pagan or for being in Mau Mau.

The Six received the same sentence of seven years’ imprisonment with hard labour for ‘managing’ and ‘assisting in the management’ of Mau Mau and three years for membership thereof. Furthermore the judge recommended it to be followed by a lifetime of restriction.

Although Kaggia was a high official of the Mau Mau Central Committee, and although he did in fact take part in Mau Mau oaths and ceremonies, he never accepted the Kapenguria conviction. The prosecution had not a single piece of evidence against him. Nothing was produced in the Kapenguria trial which connected him or anyone of them with Mau Mau. So there could be no basis for conviction. There was no legitimate evidence about oath ceremonies or about any Mau Mau meetings. All the concrete evidence given was falsified.

After the judgement there were a number of appeals. Although the Six won one of them, in the end it did not make much difference and five of them ended up again at Lokitaung. The exception was Oneko and he was acquitted in one appeal on the ground that he didn’t know the Kikuyu language. Consequently, the judge was doubtful that he would have participated in Mau Mau ceremonies which were conducted in Kikuyu. It made no difference for Oneko: he was rearrested outside of the court-room and put into detention at other places.

Life in detention

Life at Lokitaung was tiring and unpleasant. It was a lifeless place of sand storms and hellish heat. Average rainfall was less than an inch per year. The days were filled with work generally of the nonsense sort. There was a chronic lack of water. The government wanted the prisoners to dwell in utter discomfort. This purpose was definitely achieved.

Towards the end of 1958, news reached the prisoners that Rawson Macharia, the Crown’s principal witness at Kapenguria, had confessed in a signed affadit that all his testimony at the Kapenguria trial was false. He gave factitious evidence because he had received money from the Government. The prisoners were on the verge of completing their sentences, so his confession meant very little to them. they had already suffered. Yet, the prisoners were glad to know that at last the lies and fabrications of the Colonial Government were exposed. Nowadays the Kapenguria trial is seen as a textbook example of a political case and no serious lawyer will defend that there was ever a ‘case to answer’.

April 1959 Kaggia, Kenyatta, Kubai, Ngei and Karumba were released from Lokitaung. Earlier, however, the detainees had already received deportation orders, which would become effective as soon as they completed their sentences. The five were moved to Lodwar where each of them stayed in a two-roomed cottage. They were allowed to visit shops and had to report twice every day at the DC’s office. After a short period their wives were allowed to join them. December 1960 Kubai and Karumba left Lodwar. In the first half of 1961 Ngei left and around the same time Kenyatta was moved to Maralal and became a free man in August. Kaggia expected to stay for a long time, but later in the year Kaggia was removed to his home area, where he was served with a restriction order. When arriving a huge crowd awaited Kaggia. He barely recognized the area as so many things had changed. Late 1961 the restriction order was lifted.

During the years in prison a new crop of politicians had taken over from the Kapenguria Six. The new leaders (e.g. Kiano, Gichuru, Mboya, Odede, Kiprotich to mention a few), supported by the Colonial Government, came to see themselves as the modern, educated and only leaders of Kenya. Propaganda contrasted the good modern leadership with the old, tribalistic and barbaric leadership of the Mau Mau era. These politicians forgot the struggle which had gone on for years before they were even heard of. Some of them even thought that it was because of them and not because of KCA, KAU and Mau Mau that the Colonial Government had agreed to many concessions. In this period the Colonial Government accelerated the pace of constitutional advance so as to hand over to the new generation before the Mau Mau fighters were released. The Colonial Government and the new leaders their hope was shaken by Oginga Odinga in 1958 when he said in the Legislative Council (Legco): ‘These African prisoners at Lokitaung – and maybe even in other areas – were, when they were arrested, the political leaders of the African people, and the African people respect them as such. As the leaders of their community they deserve that, when they are in prison, they should be treated with some respect. When I say these people are the leaders of the African people, I do not take into consideration the recent violence in Kenya; I take into consideration the past deeds of these people in fields of politics, economics and social advancement. Until you realise this, you can never get the cooperation of the African people.’

Odinga was ruled out of order by the speaker, but his speech set the tone for the political debate and put the release of the Kapenguria Six in the centre of all discussions. Politicians who initially did not support the release of the Kapenguria Six feared to loose support and joined Odinga. Without Odinga it is likely that we would have been restricted for a long time at Lodwar or another remote place. In Kaggia’s opinion Kenyatta would never have become president if Odinga had not campaigned for his release and the release of the other five Kapenguria detainees. The Colonial Government would have loved to leave to leave them anguish in a remote part of Kenya till well after independence.

Sources:

Kaggia, B.M., Leeuw, W. de and Kaggia, M.

2012 The struggle for freedom and justice; the life and times of the freedom fighter and politician Bildad M. Kagga (1921-2005). Nairobi Transafrica.

Kenyatta, Jomo

1968 Suffering without bitterness; the founding of the Kenya nation. Nairobi: East African Publishing House

Macharia, Rawson

1991 The truth about the trial of Jomo Kenyatta. Kenya: Longman.

Murray-Brown, J.

1972 Kenyatta. London: George Allen & Unwin

Pritt, D.N.

1966 The defence accuses; the autobiography of Dennis Pritt. Lawrence&Wishart.

Rosberg, C.G. and Nottingham, J.

1966 (1985) The Myth of Mau Mau; Nationalism in Colonial Kenya. Nairobi: Transafrica.

Slater, M.

1955 The trial of Jomo Kenyatta. London: Secker and Warburg.