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Write shorter, simpler rulings to fight off 'weak link to justice' tag

Monday February 11 2019

The role of the Judiciary in the fight against corruption has, of late, faced stiff criticism from state organs in the justice system — namely, the Director of Public Prosecution and the Directorate of Criminal Investigations.

Most notably, President Uhuru Kenyatta, in his end-of-the-year chat with the nation, expressed his concern that the Judiciary was slowing down the fight against graft by giving suspects orders that derail and undermine the resolve to stem the vice.

But in an apparent rebuttal at the recent anti-corruption conference, Chief Justice David Maraga urged the investigative agencies to present watertight cases if they expect convictions. And rightly so. The strength of a case lies in the quality of evidence at the disposal of the court.

With the media fanfare surrounding the arraignment of graft suspects, the temptation for the Judiciary to secure conviction only but comes naturally. But the temptation by the media to disregard legal thresholds and reasoned long, complicated rulings of the judicial officers in securing a criminal conviction or acquittal is at an all-time high.

However, some of the criticism that the courts have are self-inflicted. While they should not dance to the public gallery, the courts should take into account possible distortion of facts by the public in respect to its decisions.

The court should, therefore, avoid arcane words, language or communication. At the conclusion of a trial, long, obscure judgments always get drowned in the noises of politics, which shape public opinion.

In Kenya, where 38.5 per cent of youth and adults lack the minimum literacy levels required to participate in public discourse, the use of plain English and shorter judgment is critical.

Article 7(1) of the Constitution underscores Kiswahili as the National language but, so far, it has been neglected by the in judicial decisions — unlike in Tanzania, where translation of laws to Kiswahili began in 2008.

An interesting example of simplifying the ruling came from the very experienced jurist, Justice James Wakiaga, who, in the Jacque Maribe case, summarised the archaic phrase ‘flight risk’ to ‘male slay queen’. It was controversial language, to say the least, but the there was no doubt in the public as to the reasoning of his ruling.

Another example came from Justice (Rtd) Aaron Ringera, who, in a decided case, summarised the Latin phrase ex debito justitiae to ‘bila maneno’!

Justice means a lot of things to many people but, for the court, it’s about the truth. The Judiciary is placed in a fairly disadvantageous position in shaping public opinion, which is mostly shaped by our prejudices and biases.

Strong, simple, quiet but forceful rulings leave little or no space for distortion. Clarity, simplicity and perspicuity in communication from the Bench will help to fight off the claim that the Judiciary is not supporting the war on corruption.

JAY SIKUKU, lawyer. [email protected]