The Supreme Court on September 5 rendered an abridged decision on the consolidated presidential election petitions, following it up later with an elaborated version after 21 days.
The decision by the Supreme Court, as a consequence of its constitutional placing as the highest court in the land and by virtue of the fact that its decisions bind all other courts, will have effect on electoral processes and its ripple consequences will be felt in the entire justice system.
The commentary on the judgment are being made and will continue to be made. Public commentary is important as it is an important capacity of civic engagement. Public commentary is important for the reason that citizens are able to scrutinise and hold offices to account, including offices in the Judiciary. It has emerged in social media commentary and public discourse that the public was not impressed by the Supreme Court in terms of the language it employed in sections of its judgment.
The Supreme Court used unprecedented terms to express its displeasure against counsel and certain witnesses. The impugned words include hot air, wild goose chase and fool’s errand. The use of such terms in the context of a bitterly contested election, anger looming large in the aftermath, left casual observers worried and the Court should have used more circumspection in its use of language bearing in mind the raw emotions that characterised the 2022 presidential elections.
Law Professor Harold Berman in a text first completed in 1964, Law and Language: Effective Symbols of a Community, defined language as a set of symbols for expressing thoughts, or as a mechanism for transmitting information. Language, therefore, has communicative and institutional importance and through words, a judge may exude self-worth and purpose. Judicial decision-making is after-all a solemn enterprise, laden with history and dignifying rituals.
The uncalled-for language by the Supreme Court not only detract from the court’s substantive arguments but also fundamentally and materially assails the Constitution, which demands that that court and indeed all judicial officers behave in a manner that hoists the dignity of the office above personal ego and frailties.
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The office of judge under the Constitution of Kenya 2010 departs from the old Judiciary which exerted its power so heartlessly. The judges of old were unbending in demeanour and some ran their courts like gulags. The Judiciary under the Constitution today is expected to act in a humane, dignified and respectful manner. The importance and solemnity of the office of judge demands temperate language and the appropriate judicial temperament.
Language is particularly important in any institutional setting. The analysis of language cannot be divorced from the analysis of the purpose and functions of language in human life, let alone the judicial setting. The choice of words and how these words are spoken impacts on the very image of any institution. Strong language employed to berate counsels and their pleadings can easily be construed to mean that the Court is communicating its animus with regards to the matters it is adjudicating upon. In a highly volatile election environment, the Court bore special responsibility to not only be impartial but to be seen to be impartial.
Accountability and fairness
There are certain principles that underlie the normative values that is justice, impartiality, accountability and fairness, which are always in play when judicial determinations are made. Value 2 on Impartiality of the Bangalore Principles of Judicial Conduct require that a Court conducts itself in deed and in terms of perception in an impartial manner.
The Bangalore Principles urge that, ‘a judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.’
Article 5 of the Universal Charter of the Judge states that, ‘the judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved,’ again emphasising the importance of impartiality and the appearance thereof. The Latimer House Principles on Parliamentary Supremacy and Judicial Independence equally states that ‘an independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.’
In a nutshell, temperament in language and character is fundamentally important for a judicial officer. The American Bar Association defines temperament as ‘having compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.’ Judicial temperament is certainly not displayed by a Court when incendiary and demeaning language is used. Judges must show respect and respect is shown when everyone is treated with dignity, by paying attention and listening carefully to submissions, by exhibiting patience, by being polite and courteous and by the judge conveying an attitude that he/she will decide on a matter fairly and objectively, based on the evidence availed and the applicable law.
Judges awe by the weight of intellectual heft and certainly not by wielding the stick of draconian habits that may be read to compromise their impartiality. Justice Dikgang Moseneke, former Deputy Chief Justice of South Africa in his text, All Rise: A Judicial Memoir states that the norm demands that a judge must not appear to be nursing a fixed notion or be seen to be partial. A judge should not allow impression be formed that he or she is partial towards a cause, person or organisation.
The Supreme Court in a liberal democratic setting plays several significant roles; it is the authoritative interpreter of the law, a role that Swedish Professor of Jurisprudence states that requires the court to be in an intermediate position on the institutional map of a democracy based on the rule of law. This fundamental role of a Supreme Court truncates into legal and political dimensions, where in its legal sense, the Supreme Court is the ultimate authority on what constitutes valid law.
With regards to the political dimension, depending on the intellectual and situational awareness of the Court, the Court will limit and/or expand the operating space of the political actors and their legislative tools. Socially, the Court will impact on constant changes in a society’s socio-economic realities. A court hearing and decisions emanating therefrom must be alive of the solemn fact that these are a scarce public amenity with severe outcomes.
The Constitution places overreaching duties on wielders of public power including Justices of the Supreme Court. The Supreme Court is expected to generate works imbued with textured richness and discussion about the Court’s jurisprudence should centre around the qualitative aspects, the pulsating vibrancy of intellectual output and not the nature of language used.