§ 28. Dr. Stross
asked the Secretary of State for the Colonies how many of the eleven men who died following the use of physical violence in the Hola camp were suffering from scurvy; and to what extent this deficiency disease contributed to their death.
§ Mr. J. Amery
The magistrate, who heard evidence from a number of medical witnesses, found that it was impossible to say affirmatively that the deceased, or any of them, were suffering from scurvy, although the evidence suggested that some 347 or all of them may have been suffering from ascorbic acid deficiency at the time of death.
§ Dr. Stross
Is not the hon. Gentleman aware that ascorbic acid deficiency means scurvy? As these men were suffering from scurvy, is it not true to say that they would be unable to walk, let alone to work? Because they could not work, they were beaten to make them work, and died as a result of their beating. May we know what is being done to ensure that there is no ascorbic acid deficiency in future among these prisoners?
§ Mr. Amery
I do not think that the hon. Member's analysis of the facts is strictly accurate. Before the incident, arrangements were made for anti-ascorbic acid pills to be made available in the camp. I think that there was some doubt whether sufficient care was taken to make sure that they were consumed. The detainees were taking their meals in their own huts because they did not like collective feeding. Since collective feeding was introduced to ensure that there was no ascorbic acid deficiency, there has been a hunger strike in protest against this move, but we are taking steps to make sure that there should be no further deficiency of ascorbic acid in the diet of the detainees. Precautions against it were taken before the incident, but whether they were sufficiently fulfilled is an open question.
§ 29. Mr. K. Robinson
asked the Secretary of State for the Colonies if he will now make a full statement on the decision of the Attorney-General of Kenya not to institute criminal proceedings in connection with the deaths of eleven Africans at Hola.
§ Mr. J. Amery
The reasons given to the Governor by the Attorney-General of Kenya for his decision not to institute a criminal proceedings in this case were the subject of a Question in the Kenya Legislative Council on 2nd June.
I am circulating the Attorney-General's reply in the OFFICIAL REPORT.
§ Mr. Robinson
Did not the Attorney-General also say that he was satisfied that the majority of the force used in this incident was illegally used? Would the hon. Gentleman care to say why, in 348 the cases where there were no identification problems—that is, concerning the camp commandant and his deputy—disciplinary charges were thought to be more appropriate than criminal proceedings?
§ Following is the reply:
§ "Reply given by Mr. D. W. Conroy (Acting Attorney-General) in the Kenya Legislative Council on 2nd June concerning the reasons of the Attorney-General of Kenya for his decision not to prosecute.
§ Following the conclusion of the inquest proceedings, the Attorney-General, with his advisers, gave careful consideration to the question whether or not the available evidence warranted the preferment of criminal charges against any person or persons.
§ 2. All the witnesses from whom statements were obtained by the Criminal Investigation Department in its full and thorough investigation were made available at the inquest. In the absence of identifying witnesses, identification parades could not be held. No further or other evidence is available to sustain any criminal proceedings.
§ 3. The Attorney-General was satisfied that the evidence available established that the deaths of the eleven deceased detainees resulted from the use of force and that the greater Dart of the force used was illegal force. He concluded, however, that the evidence was insufficient to warrant the framing of any criminal charges in respect of the causing of death or injury to the detainees, or in respect of the orders given regarding the use of force in the operation or in respect of a combination or conspiracy to use illegal force.
§ 4. Much of the evidence was patently unreliable, but even if the question of credibility were disregarded and the evidence were taken at its face value, it was inadequate, particularly in regard to identification, to sustain criminal charges.
§ 5. The detainees had refused to co-operate in the C.I.D investigation or to identify warder staff or even to identify the bodies of the dead detainees (which had, therefore, to be identified by fingerprints). Some were eventually persuaded to testify at the inquest but their evidence was dismissed by the Magistrate as valueless.
§ 6. In any criminal proceedings the onus of proof lies on the Crown, the standard of proof required being that beyond a reasonable doubt. That onus has to be discharged in respect of both the commission of the alleged offence and the identity of the alleged offender. In any such proceedings in this case the evidence of the detainees would be worthless, and the evidence of any members of the Prison staff who were present when violence was used and who were not accused would at least be suspect and possibly, in some cases, of the nature of accomplice evidence which would 349 require to be adequately corroborated in a sense connecting the accused with the commission of the offence.
§ 7. It is impossible, as the Magistrate found, to distinguish, on the evidence, which part of the force used was illegal force and which part was justified, or to separate the one from the other in terms of time, injuries caused, and identities of persons involved, whether in the application or in the receipt of force.
§ 8. Such limited independent evidence as was available was inconclusive, and did not afford the means of identification of individuals with the culpable use of force, even in respect of the minor offence of common assault or abetment of common assault. Only two independent witnesses testified to having seen, from a distance of 100 yards or more, assaults on detainees which, as described, appear to have been unlawful, but, understandably, neither was able to identify the assailants. One of these two witnesses referred to the presence of the Commandant, but was unable to say what he was doing.
§ 9. Section 18 of the Prisons Ordinance authorises the use of weapons, where necessary, by prison officers against detainees escaping or attempting to escape, engaged in a combined outbreak or using violence to any prison officer or other person. Prison Standing Orders forbid the striking by prison officers of persons in custody save to the extent necessary in defence or to overcome violence or resistance to escort. The Emergency (Detained Persons) Regulations, 1954, prescribe the circumstances and manner in which corporal punishment may be applied to detainees for offences against discipline.
§ 10. The evidence at the inquest does not establish that in the planning of the operation the use of illegal force was contemplated. The document described at the inquest as the "Cowan plan" was a report submitted to the Commissioner of Prisons by Senior Superintendent Cowan after his visit to Hola for the planning of the operation; no copy of that document was ever in the Possession of those who carried out the operation.
§ 11. The evidence also established that orders given to the warder staff regarding the use of force, which were given in Swahili, in no way established any intention to authorise the use of illegal force or any contemplation that illegal force would be used. They would not, therefore, sustain a prosecution in that respect.
§ 12. While the public interest clearly requires that any person or persons who can be proved to have been criminally implicated in such a shocking and tragic accurrence should be brought to justice, it requires no less that no person should, in this or any other case, he placed in jeopardy on a criminal charge unless there is available sufficient evidence which, if believed, would establish his guilt. In this case the Attorney-General decided that the available evidence was insufficient for this purpose, and he accordingly decided that no prosecutions should be instituted."
§ 30. Mr. K. Robinson
asked the Secretary of State for the Colonies the names of the members of the tribunal appointed to consider the disciplinary charges against 350 the commandant and deputy-commandant of Hola Camp, Kenya.
§ Mr. J. Amery
Mr. D. W. Conroy, the Solicitor-General (Chairman), Mr. R. E. Luyt and Mr. M. N. Evans.
§ Mr. Robinson
What is the normal occupation of these gentlemen? May we take it from the hon. Gentleman's reply that the grounds given by these two officers did not succeed in exculpating them from the charge?
§ Mr. Stonehouse
Is the Under-Secretary aware that the composition of this tribunal gives no cause for faith that there will be a full investigation?
§ Mr. Amery
The tribunal is set up under the normal procedure of the colonial regulations. It has been shown by many other such tribunals in the past that such officers are perfectly capable of exercising independent judgment in a matter of this kind and I resent the implication that these officers are incapable of establishing the facts.
§ Mr. Callaghan
While these gentlemen may be perfectly honourable and capable of carrying out an inquiry into normal disciplinary charges against a civil servant who may be accused of an offence under the Civil Service code, does the Under-Secretary not realise that the question here is whether these officers are the proper people to carry out an inquiry into circumstances in which eleven men lost their lives as the result of illegal violence? Does he not think that a tribunal composed of persons who are independent of the Government would be more likely to reach a proper conclusion?
§ Mr. Callaghan
Does the Under-Secretary or the Attorney-General really believe that, when the disciplinary code was framed, it was ever believed that it should be used to deal with a case of such magnitude and gravity?
§ Mr. J. Griffiths
In view of the gravity of this case, does the hon. Gentleman think that the status of these officers is such as to justify their appointment? Has he considered whether it might have been wise, and, indeed, an advantage, in this case to appoint competent Africans or Asians to serve on the tribunal?
§ Mr. Amery
I think that the right hon. Gentleman misunderstands the position. The purpose of the tribunal is to see whether there was a breach of discipline. All sorts of other issues are, I know, at stake, and I understand that we are to have a debate upon them, but upon the particular matter which has to be straightened out—whether there was a breach of discipline—a disciplinary tribunal appointed under Colonial Office regulations would appear to be the appropriate body. I should not have thought that persons recruited from outside would have been as capable judges of that specific matter.
§ 41. Mr. Callaghan
asked the Secretary of State for the Colonies what investigations he is making into the circumstances in which Government servants and Ministers in Kenya authorised the Cowan Plan proposing that physical force should be used to compel unwilling prisoners in Hola Prison Camp to work.
§ Mr. J. Amery
The hon. Member's Question does not correctly paraphrase the relevant statement from the so-called Cowan Plan which was that should the party of detainees refuse to go to the work sitethey would be manhandled to the site of work and forced to carry out the task".These words have, of course, to be read in their context and in the light of the knowledge of those concerned of the Prison Ordinance. This makes it clear that prisoners cannot be forced to do work by beating.
My right hon. Friend is in communication with the Governor of Kenya on all aspects of this matter and I am not in a position to make any further statement at this juncture.
§ Mr. Callaghan
Is not the Under-Secretary aware that the coroner indicated that the beatings were illegal and that the plan, as a result of which the 352 beatings were carried out, was unclear? I am asking what investigations the hon. Gentleman is making into this set of circumstances in which Ministers of the Crown gave their assent to a plan which was both unclear and in its execution unlawful.
§ Mr. Amery
The hon. Gentleman will remember that the written version of the Cowan Plan was not received at Hola Camp before the incident took place. Therefore, it is a little difficult to take a view on the written terms of a plan which was not in the possession of Sullivan and Coutts at the time that the incident took place.
§ Mr. Callaghan
Is the hon. Gentleman aware that I am not pursuing either the commandant of the camp or his deputy, who in some ways are being made scapegoats for a plan unclear and in some respects unlawful, and that the responsibility here rests upon the Ministers and civil servants who initially gave their consent to a plan which could be so construed? What inquiries is the hon. Gentleman making into that?
§ 43. Mr. Brockway
asked the Secretary of State for the Colonies what further decisions have been made arising from the coroner's report on the deaths from violence of eleven Africans in Hola Detention Camp, Kenya.
§ Mr. J. Amery
Disciplinary charges have been preferred against Sullivan as follows:
- (i) That you being a Superintendent in the Kenya Prison Service on 3rd March, 1959, at Hola in the Coast Province, acted with gross dereliction in the performance of your duties as Officer in Charge of Hola Special Detention Camp in that you—
- (a) put to work eighty-five non-co-operative detainees from the said camp in such a way that you were unable to exercise proper control over the said detainees and in a manner contrary to instructions given you by Senior Superintendent Cowan;
- (b) failed adequately to supervise the members of the said Service under your orders in charge of the said detainees;
- (c) failed to prevent members of the said Service under your orders from improper assault in your presence of some or all of the said detainees.
- (ii) That you being a Superintendent in the Kenya Prison Service on 4th March, 1959, at Hola in the Coast Province acted with gross dereliction in the performance of your duties as Officer in Charge of Hola Special Detention Camp, in that you gave misleading information concerning the events which had occurred at the said camp on the morning of the 3rd March, 1959, to the then Acting Deputy Commissioner of Prisons, Mr. W. M. Campbell, and to the Under-Secretary of Defence, Mr. A. C. Small.
Similar charges have been laid against Mr. Coutts. I will not read them in detail. It would take too long. I understand that the inquiry started today. I cannot say precisely when it will finish but I know that it will be conducted with all possible haste. In view of the extent of the tragedy and the public anxiety ensuing therefrom, I shall take the very unusual step of arranging for the proceedings and findings to be published after they have been considered by the Kenya Government.
§ Mr. Brockway
Does not the coroner's report show that the real responsibility is with this Government and with the Kenya Government? Did not the coroner's report, first, condemn the Kenya Government's statement that these men had died following the drinking of contaminated water? Did it not criticise the Cowan Plan? In view of the repeated refusal of the Secretary of State to make an inquiry into the conditions in this camp—which might have prevented this tragedy—would it not be seemly for him to resign his office?
§ Mr. Amery
The hon. Member raises large issues which can be best considered in the debate, but I would remind him that my right hon. Friend has already announced that an inquiry, consisting of Mr. R. D. Fairn and Sir George Beresford-Stooke, would be held into the future administration of the remaining detention camps. I am glad to announce that since the House went into Recess, Canon Bewes has also agreed to join the inquiry as a third member.