A gift for journalists who often contend with jargon

 

Court reporters often have to contend with, and make sense of, jargon and legalisms, which obscure judgments. To reporters, the BBI judgment was a gift from the gods, if one may be allowed to use a hyperbole. Not that it does not contain jargon and legalisms. Every profession has its jargon. But in law, simplifiable jargon and unnecessary legalisms have no place in a judgment that is intended to communicate to the public.

The BBI judgment has its fair share of jargon and legalisms — such as “res judicata”, “lacuna”, “ab initio”, “inter alia”, “the said”, “hereinabove” and “aforesaid”. It also contains complex sentences, some more than 100 words long. And it is verbose — more than 300 pages long or about 90,000 words (the size of Ngugi wa Thiongo’s A Grain of Wheat ), which can be cut down without losing meaning.

However, unlike most judgments made in Kenya, it is easier for reporters to read and report on because it is written to communicate not only to the litigants and lawyers but also the public. It explains to the public, mostly in plain language, the law and the judges’ reasons for arriving at their decisions.

“A communication is in plain language if it meets the needs of its audience — by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it,” writes Dr Annetta Cheek, a plain language expert, in her article “Plain language” published in Clarity, Number 64 of November 2010.

Memorable judgment

The BBI judgment is clear, digestible and powerful. It communicates to both lawyers and non-lawyers. It’s apparent that the five-judge panel of the Constitutional and Human Rights Division of the High Court took trouble to ensure that the judgment is not a dry and dreary recitation of precedent, procedures, statutory provisions and block quotations from others presented as precedent. They wrote one that reflects clear thinking and analysis. It’s a memorable judgment that is meant to be understood and followed, and may be even to be entertaining.

Lord Denning, a British judge for 38 years from 1944 to 1982, wrote judgments that are not only persuasive but also fun to read. Even those on complex matters read like stories simply and interestingly told. His style commands attention. While every Kenyan judge should develop his own style of writing judgments, court reporters would find it easier to read and report Lord Denning-like rulings.

“At its best, a written judgment is an honest, respectful, persuasive, clear, and memorable explanation why one side won and one side lost, all with a defined statement of the legal rule on which the decision turns,” Gerald Lebovits, a professor of law at Columbia Law School, told Kenyan judges in a lecture he gave in August 2009 to judges at the Kenya Judicial Training Institute.

Dramatic reporting

He added: “Good judgment writing must also be simple writing, free of jargon, in plain, modern English, not archaic or opaque English, Latin, or the romance languages.”

The BBI judgment, formally known as David Ndii & Others v Attorney General and Others (or Petition No E282 of 2020), explains clearly and dramatically why the anti-BBI people won and the pro-BBI people lost. It declares the BBI document that had already been passed by Parliament and county assemblies and supported by more than four million signatures of members of the public as “illegal, null and void”.

The judgment lends itself well to equally dramatic reporting by the media. Paragraph 557 states that “whichever angle one looks at it, the BBI Steering Committee was invalid from the very beginning”. Consequently, the Nation carried the banner headline “BBI bombshell” last Friday, the day after the judgment was read. Others followed: “Fury after the storm” (Saturday Nation), “Uhuru, Raila plot BBI comeback” (Sunday Nation) and “BBI: Ruto’s big moment” (Daily Nation).

Reporting on such controversial issues normally attracts complaints from people who think the Nation is biased against them. This time, nobody that I know complained. It’s clear a well-written judgment is a court reporter’s best friend.    BY DAILY NATION