Examining the length and breadth of court judgments

Just over a fortnight ago, Kenyans had to bear watching television for an aggregate of about nine hours as each of the seven judges of the Court of Appeal read their individual summaries of reasoned judgments in the case that struck out the proposed amendments to the Constitution of Kenya. This has come to be known as the BBI case judgment.

Soon after the judgment was delivered on television, the actual judgment was released by the court.

If listening to and watching the judgment delivery over that period was daunting, reading the full judgment on paper was even more so. That the judgment was a trendsetter was never in doubt. But it brought a new record into the law books of Kenya. At a total of 1,089 pages, the BBI judgment set the record of being the longest judgment by a court in Kenya!

The issue of length may be novel but was almost a natural consequence of the calls for individual judges in a court to provide their personal reasons for the verdicts they give in cases.

It means, therefore, that the judgments would of necessity be longer in aggregate even if the individuals came to the same decision. This is good for scholars and students to review for academic purposes.

Court judgments

The judgment struck new ground in two respects: on account of its record-setting length and the reiteration of supremacy of the Constitution by providing a pushback against hapless efforts at amendment of the Constitution for mere political purpose.

But at the same time, many legal scholars and even non-lawyers who are interested in understanding the functioning of courts insist long judgments are but a source of confusion and add no value. True, the legal value of a court decision does not necessarily lie in the length of the judicial opinion.

Taking the example of Kenya, many practitioners have expressed concern at the fact that the courts have in the recent past been much more profuse in the length of judgments than was the case barely two decades ago. A judgment of more than 100 pages was a rarity. They claim the duty of the judge to be succinct in identifying the issues in a case and making a direct application of law to the issues is lost.

Public law litigation

There may be a point in this but it also bears mentioning that the long judgments have manifested themselves more in the area of constitutional and public law litigation.

The reason is that the Constitution of Kenya 2010 created a wide scope of law and in turn created an obligation on the part of judges to ensure the right to access to justice is properly exhausted in any given litigation. This comes with the obligation on the judges to explore all legal possibilities in any litigation, hence the long judgments.

This is not only true for Kenya. Public law and constitutional law judgments tend to be long. Suffice it that the Indian decision in the Kesavananda case that was examined deeply in the Court of Appeal BBI judgment on the doctrine of Basic Structure came to 676 pages when it was decided almost 50 years ago. Still in India, the case of Puttasamy on the right to privacy in India is more than 500 pages in length.

This leads me to the question whether there is any link between the length of judgment and the legal essence of the decision. In other words, is a long judgment necessarily a fundamentally sound one?

In my view, the Court of Appeal judgment in the BBI case was certainly a landmark decision that will form a cornerstone of interpretation for years to come, whether or not the appeal against it succeeds at the Supreme Court. The legal worth of the judgment is not necessarily based on its length.

The case that almost all students will recognise is that of Woolmington in England. It established the burden of proof in a criminal trial, which reasoning endures today, more than 85 years later. Here are the enduring words of Lord Sankey: “That throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.”

That judgment is barely 10 pages in all the law reports in which it is published, but it has retained its allure over the decades as a cornerstone of criminal law.

Equally far-reaching but modest in length is the unanimous decision of the US Supreme Court decision in the 1954 case where the court held that the policy of separate but equal which resulted in racial segregation in schools was unconstitutional. The whole judgment comes to about 10 pages printed on an A4 paper on a font of about the same size as that on this newspaper.

It deserves mention, however, that the Miranda case in which the same court established the rights of a person suspected of having committed a crime as including the right to be warned against self-incrimination and on the right to counsel, was much longer at about 100 pages.

But sometimes judgments can be of essence even for judges in dissent – those  whose decisions do not prevail in that particular case. They can distinguish themselves for some reasons.  In the case of Lochner against New York, for example.

Majority decision was wrong

In that case, the US Supreme Court ruled that a New York law setting 60 hours per week as the maximum working period for bakers was unconstitutional.

Oliver Wendell Holmes Jr, in a short dissent of about one page, stated that the majority decision was wrong.

This dissent would eventually be the more persuasive and legally correct decision despite its being far shorter and the sole dissent. It led to a reversal of the majority and adoption of the dissent about 30 years later.

The Kenya Supreme Court decision that annulled the presidential election of August 2017 could also be interesting in terms of records.

One of the dissenting judges wrote a judgment of more than 400 pages, more than twice the majority opinion of the judges who nullified the election.

But in law school, students look with derision and bemusement at the shortest legal opinion in most judgements. It is always by a judge thought to be unwilling or unable to come out by him or herself and explain his reasons for a decision.

The law reports are full of instances of judges agreeing completely with another judge. In the said case of Woolmington on the burden of proof, the four other judges of the House of Lords, simply said “I concur”. Those inclined to a longer concurrence often add the words with nothing useful to add.

Though it is not always possible to have short succinct and easy decipherable judgments, the judges are aware of this need. In 2016, Justice Peter Jackson in England wrote a short judgment in simple language in a case regarding the custody of children.

To ensure the judgment could be read and understood by the school-going children, the judge spoke to the children in their language; He included the digital images used in expressing ideas digitally, commonly known as emojis in the judgment.

Judgments and court rulings will continue to be of interest in length, breadth, language, not to mention even emojis.

The writer is the Head of Legal at Nation Media Group Plc