By the time this is published we shall have had the High Court judgment on the BBI. One thing that has worried me is that the form of a Bill to amend the Constitution is not a clear way to communicate intentions to the people – who were asked to sign it.
Article 1 of the Constitution says, “All sovereign power belongs to the people of Kenya”. It recently dawned on me that if the people are sovereign, they have a right to be able to understand the law that is made for them and in their name.
Former US Vice-President Al Gore once said, “Clear writing from your government is a civil right.”
The drafters of the Constitution did make an effort to write a document that people could understand without too much difficulty. They were sometimes frustrated by conservative lawyers (I assume) who were used to law being written in a certain way and did not see why it should change – even for a transformative constitution.
SHALL AND MAYS
As a school student, I learned the difference between shall and will: A man was seen in deep water, and he shouted, “I will drown and nobody shall save me”; and so nobody did.
Why did nobody save him? Because to say “I will” means I intend to. And “they shall” or “nobody shall” or even “you shall” is a direction, not a statement of future fact. The drowning man should have said, “I shall drown and nobody will save me” – and people would at least have tried to save him.
This pedantic (and now rather old-fashioned) use of language is still clung to by lawyers. So students learn that “shall” in law is a direction, while “may” means that someone has a choice of action. But over the years lawmakers have been a bit imprecise in their use of these words, so courts have sometimes decided that in a particular instance a “shall” means “may” and a particular “may” actually means “must”.
In some countries, modern lawmakers are trying to be more precise. It has become quite common to use “must” when a clear duty to do something is intended. Some drafters would have used “must” in the Kenyan constitution. But in the end, conservatism prevailed and it uses “shall”. I would say, however, that the drafters were very clear about what they intended and if they said “shall” they did not mean “may”.
But our Constitution is in this way inferior to the South African. That uses “must” and not “shall” – as in “obligations imposed by [the Constitution] must be fulfilled”. Simple and clear English.
These days Kenyans are surely more confused than ever about these words, because I have noticed a growing tendency to use “shall” in all sorts of contexts – including when it simply means something will happen in the future.
The Star reported, about the BBI Bill, that the Senate Speaker “says the two speakers of Parliament shall correct the same before the document is taken to the President”. Whoever used the word here surely just meant that they would do so (and “will” would have been correct). What would Philip Ochieng have said?
Users of the older English versions of the Bible might be familiar with, and confused by, “And ye shall know the truth, and the truth shall make you free”. Modern translations use “will”.
Maybe some dispute would not have occurred if people realised that where Article 261 says: “If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament” it really means they must.
OTHER CLARITY ISSUES
It’s not just a matter of jargon. Traditionally, lawyers used non-legal words in ways ordinary citizens of any country would probably gulp at. At least “heretofore” – used in three old laws – is not used any longer. But “hereinbefore” was used as recently as the Land Registration Act, 2012. And our laws are riddled with the word “deemed” – including as recently as 2019.
I must say I was disappointed with the Health Act that – reflecting commendable enthusiasm for the project – says: “Every person has the right to the highest attainable standard of health which shall include progressive access for provision of promotive, preventive, curative, palliative and rehabilitative services.” Could it not have been expressed in a more down-to-earth manner?
The length of sentences, and the layout of the law is also relevant for understanding. I found a single sentence in a single block of text in the Land Act 2012 that is 118 words long –.
Our law has some way to go before it is as clear as it could be, but improvement has been made. This includes generally making the law gender neutral (usually by saying “he or she” and so on).
If Parliament took its obligations about public participation more seriously, maybe it could also improve further in producing clear laws.
Maybe if our laws were to be translated into Kiswahili, the original drafters would have to ensure they were simply written. Hong Kong law drafters had to simplify their styles when laws began to be translated from English into Chinese.
NOW FOR THE COURTS
A famous English judge (Lord Denning) once began a judgment “The child sat on the railway line”. He frequently presented the factual background to the cases he was deciding in a way that aroused interest, and made them memorable. It was easier when those facts were striking, of course.
What is interesting is that he clearly did not think of his readership as being merely the lawyers in the case. And that is something that other judges, including Kenyan, might usefully think about.
Actually Kenyan judges are, I respectfully suggest, getting better at bringing out the key issue at the beginning of their judgments. But still rather a lot begin by saying something like, “This is an appeal from such and such a judge in appeal number such and such”, or “The petitioner is a Kenyan citizen of sound mind” or by quoting the legal documents that set out - in tedious language - what the petitioner or claimant wants.
When writing judgments I suspect Kenyan judges (and they are not alone) often fall into one or both of two traps. One is using (cutting and pasting) the language of the parties that is conveniently available now that all documents are filed online. And second is using the researchers whom the Constitution bestows on judges to write the first draft.
No researcher is likely to try anything novel or stylish. So judgments become very long, and boring because they summarise the arguments of each party one by one. If only, I often think, a judge would identify a point to be decided, say what the arguments about it were from each party, and then indicate what his or her decision is on that point before moving on to the next point.
Increasingly worldwide, courts are producing summaries for the public and the media about important cases. The South African Constitutional Court is consistent in doing it - though perhaps too much in “lawyer-speak”.
Yet in our system, judgments are not just decisions on the specifics of one case but are also the law.
NOT JUST ABOUT LAW
Other government communications should be clear and non-technical too (unless the technical cannot be avoided).
Could government not, right from March last year, have communicated more clearly to Kenyans the reality of Covid-19, and what needed to be done? It’s not just lawyers who have communication problems.
Kenya could benefit from plain language movement.
“A communication is in plain language if its wording, structure, and design are so clear that the intended readers can easily find what they need, understand what they find, and use that information.”
It’s an important contribution to the people’s right to seek and receive information and ideas (Article 33) and their true sovereignty.
