Mind your language: Maintaining the solemnity of the language of the law

The recent ruling by the High Court of Kenya in the case involving the Owners of Motor Vessel Haigui (Ann’s Import and Export Enterprises Limited) against Galana Energies Limited and others has raised eyebrows, particularly regarding the court’s choice of language. In paragraph 45 of its decision, the court bluntly stated that the documents presented by the claimant failed to provide any evidence of purchasing, importing, or requisitioning oil. The court went further, suggesting that based on the evidence, no oil could have left Saudi Arabia.

The language used by the court to describe the claimant’s case was particularly striking, likening it to an “amateurish attempt on a heist” and advising the claimant to stop watching too many movies, especially the popular series “Money Heist”. This choice of words, while colourful, raises questions about the professionalism and impartiality of the court in its judgments. Such language could be seen as disrespectful to the parties involved and undermines the seriousness of the legal process.

Judicial decisions are the cornerstone of a fair and just legal system. They should be characterized by a language that reflects the gravity of the court’s role and maintains the dignity of the proceedings. In the recent past in Kenya, where courts have been on the spot over the use of disparaging language in their judgment, serves as a reminder of the importance of using civil language in judicial decisions. The furore generated by the Supreme Court’s ‘hot air’ berating of pleadings is still fresh with us. There are important nuggets that must be remembered by those who preside over the solemn act of judicial decision-making.

Firstly, the use of respectful language is crucial to maintaining the credibility of the judiciary. Courts are respected institutions that play a vital role in upholding the rule of law. When judges use language that is disrespectful or demeaning, it undermines the public’s confidence in the judiciary and can erode the legitimacy of the legal system.

Secondly, civil language is essential for ensuring fairness and impartiality in judicial decisions. Judges are expected to adjudicate cases based on the law and the evidence presented, without bias or prejudice. Using inflammatory language can create the perception that the judge has already made up their mind about the case, which can be detrimental to the parties involved.

Moreover, the use of civil language is a sign of professionalism and respect for the individuals involved in the case. Litigants, witnesses, and other stakeholders deserve to be treated with dignity and respect, regardless of the outcome of the case. Using derogatory language can harm the reputation and standing of the individuals involved and can have long-lasting effects on their lives.

The impugned use of language in judicial decisions raises concerns on several fronts. To begin with, the language employed can be seen as disrespectful and offensive, potentially violating personal dignity as enshrined in legal provisions such as Articles 19(2) and 28. Additionally, there are broader implications for communal dignity, as outlined in Articles 10 and 19(2) of the Constitution.

Secondly, the introduction of American popular culture references into judicial rulings is a troubling trend. Judicial decisions are meant to be solemn expressions of state authority, and the inclusion of such references can undermine the seriousness and professionalism expected of the judiciary.

Thirdly, the use of such language raises questions about the judicial temperament of the presiding officer. Judicial temperament is crucial for maintaining impartiality and ensuring that the principle of the natural judge, who applies the ordinary law of the land, is upheld. When language that is unbecoming of a judicial officer is used, it raises concerns about whether the judge is fully in control of their temperament. Civil language is essential for maintaining the credibility of the judiciary, ensuring fairness and impartiality in judicial decisions, and treating individuals involved in the case with respect and dignity. Judges must remember that their words carry weight and can have a lasting impact and should therefore use language that reflects the seriousness and importance of their role in the legal system.

The legal field is vast and multifaceted, encompassing various forms of regulation, including constitutional, statutory, administrative, and judicial rules. These regulations are designed to govern society’s behaviour in different roles and for various purposes. The majority of legal content is created through enactments by legal authorities, and the primary means of conveying this content is through natural, solemn language. Language is essential to lawyers, much like a piano is to a pianist—it is the tool of their trade. While some may use it more skillfully than others, no lawyer can effectively conduct their business without it. Law’s life is a life of language, and it is therefore particularly important for the courts to be careful about the language used and how that language is communicated. After all, Socrates identified four key qualities of a good judge: one that listens courteously, responds wisely, deliberates soberly, and decides impartially. These qualities have been seen in renowned judges such as Marshall, Bhagwati, Moseneke, Ismail, Chaskalson, Madan, Aaron Barak and many others.

It remains to be seen how this worrying trend will be perceived within the legal community and its impact on the image of the judiciary generally.

 

Ours is in conclusion, to remind judicial officers that the recent developments regarding language in judicial decisions highlight the need for the judiciary to uphold the highest standards of professionalism and dignity. Judges must be mindful of the impact their language has and strive to maintain impartiality and respect for all parties involved.