Simplify the language used by lawyers

NAIROBI: All our laws are written in the English language and centuries old English laws still apply in the country.

Legal language or legal English is influenced by both French and Latin. It should be differentiated from legal jargon which is a characteristic language of a particular group. The group comprises judges and lawyers.

It should also be distinguished from legalese which is a style that uses the abstruse technical vocabulary of the law.

In order to counteract the complex nature of legal language and the negative effects of legalese, some people have advocated for the use of ‘plain English’ or ‘simple language’.

This language is simplified to make it readily understandable by the average person. It is language stripped of unnecessary complexity, but not stripped of style.

It is perhaps language at the lowest common denominator and is reader-focused language that targets a larger audience other than those with legal training.

This can be seen in criminal cases where the charge sheets should be written in a language that is simple so as to be easier for the accused to understand. It goes further to have the charge read out to the accused in a language they are conversant with.

It is also important to note that in our country where 38.5 per cent of youth and adults lack the minimum literacy levels required to participate in national development, the use of plain English is important.

Interpretation of the law is a key element in implementing it. The use of simple English enables more people to understand the law and there is no need to always go to court.

This role of the court was reiterated by Lord Denning, the eminent English jurist and judge when he said, “Where parliament leaves a gap in legislation it is the role of a judge to make it feasible”.

A recent local example of failure in interpretation is, the policy of former Inspector General of Police David Kimaiyo in May 2014. In his adaptation of Rule 54 A (1) of the Traffic (Amendment) Rules, 2009.

This clearly stated PSVs, but the IG proceeded to give directives that covered private vehicles as well. Plain English is not the only resolve to simplifying legal language.

The use of politically correct, gender and racially sensitive language is also important. As children, most people learnt the nursery rhyme ‘baa baa black sheep’. Well, in the UK a school has changed the nursery rhyme to delete the word “black” and added “little” in place of it.

The rhyme is now ‘baa baa little sheep’ in order to make it racially correct.

Even the word ‘brainstorming’ has been discouraged by groups that campaign for the mentally challenged. Let us look at what is happening in other countries where common law prevails.

In the US, as early as 1978, then President Jimmy Carter issued an executive order allowing all federal law to be drafted in plain English.

This position was later revoked by President Ronald Reagan in 1981.

But the federal rules of civil procedure, criminal procedure, and appellate procedure are now being drafted according to plain-language principles.

In 2010 President Barack Obama, himself a lawyer, signed the Plain Writing Act which required federal executive agencies to put all new and revised covered documents in plain language.

In Australia, plain language is used not only in legislation but in various other documents, including communications between lawyers. This has reduced the error rate in documents as well as processing time.

The Takeovers Code of Australia is a good example, the law was redrafted using plain language and was reduced to 60 per cent of the original length, but still remained accurate and effective.

In England, the Timeshare Act 1992 was rewritten in plain language, which reduced the act by 25 per cent and improved the comprehensibility of the statute.

In New Zealand the government is rewriting the Income Tax Act.

The new act will be written in plain language, this will include everything from a better structure to use of formulas, tables, and flowcharts as a way to save administrative costs and compliance costs.

In Kenya, an attempt must be made to simplify legal language. This could be achieved by translating the law to local languages.

The common ‘mwananchi’ is the addressee of these laws enacted by parliament or county governments, but many do not understand the laws.

Article 7(1) of the Constitution states that Kiswahili is the National language. Kiswahili so far has been neglected by the draftsman, unlike in Tanzania where translation of laws to Kiswahili commenced in 2008.

An interesting example of simplifying the law came from the very experienced jurist Justice Aaron Ringera who in a decided case, summarised up the Latin phrase ‘ex debito justitiae’ to ‘bila maneno!’

I cannot perceive Kenyan laws being written in Kiswahili ever, but simplifying the language of the law should become a national priority. But who will get the ball rolling?

Is it the Law Reforms Commission, Attorney General, the Law Society or the lawyers in the National Assembly or Senate? Simplifying laws in my view is an important matter that should be made a national issue.