It’s not what the Chief Justice said, but how he said it that really hurt

By RASNA WARAH rasna.warah@gmail.com

Posted  Sunday, April 21  2013 

IN SUMMARY

• These are some of the reasons why so many Kenyans are deeply hurt by the manner in which Chief Justice Willy Mutunga delivered the Supreme Court’s judgment on the election petition filed by presidential candidate Raila Odinga and civil society organisations
• The Chief Justice was abrupt and abrasive — bordering on arrogant — both when he announced the initial judgment the first time, and also when he delivered the detailed judgment last week
• The Chief Justice took less than three minutes to issue the judgment and then asked those present to go on the Internet to read the full text. It was very insensitive on his part, considering that the case was a first for Kenya

In most African, Arab and Asian cultures, it is not what you say but how you say it that matters. Great care is taken not to offend or upset people with carelessly chosen words.

Bad news is delivered with a prelude that puts the receiver at ease. Niceties about the family or work are exchanged before alarming or hurtful information is conveyed.

Requests are often not rejected outright; they are accompanied by elaborate explanations, (sometimes lies), so that the ego of the one making the request is not injured. The building of trust and goodwill is paramount and considered essential for any transaction.

Entire economies operate through the way people communicate and the level of faith they have in each other. That is why when someone in these societies says, “You have my word”, it is as good as a legally-binding obligation. Not keeping one’s word is akin to betrayal.

Many Westerners get confused and frustrated by these modes of communication. In legalistic societies where the written word is given more weight than the spoken word, deciphering the communication labyrinth can be daunting.

In Africa, which until recently was largely an oral society, the spoken word has special significance. Verbal and non-verbal cues are particularly important in societies where communities survive under customary laws and harsh environmental conditions — the cues indicate whether a person can be trusted, whether he or she is a genuine friend or an enemy.

(Women too are good at picking up non-verbal cues, partly because their maternal role demands it, and also because to survive in a male-dominated society, they have to be sensitive to the moods and whims of the opposite sex.)

Trust is essential for survival in such conditions, and communication builds trust. The grip of the handshake or the duration or intensity of a hug can communicate levels of friendship, trust and commitment between two or more parties.

What is said afterwards is not so important; it is important that it is said in the right way. In this regard, respect for the other person’s feelings becomes an important indicator of whether the relationship will go further.

These are some of the reasons why so many Kenyans are deeply hurt by the manner in which Chief Justice Willy Mutunga delivered the Supreme Court’s judgment on the election petition filed by presidential candidate Raila Odinga and civil society organisations.

The Chief Justice was abrupt and abrasive — bordering on arrogant — both when he announced the initial judgment the first time, and also when he delivered the detailed judgment last week.

Many Kenyans I have spoken with say that while they accept the Supreme Court’s judgment and the reasons for the dismissal of the petition, they cannot accept the hasty way in which it was delivered.

The Chief Justice took less than three minutes to issue the judgment and then asked those present to go on the Internet to read the full text. It was very insensitive on his part, considering that the case was a first for Kenya.

I am not suggesting that the Chief Justice should have read the entire 113-page document, but he might have made the judgment more palatable by stating, for the record, that the election was flawed, but that the Bench found that even if the anomalies had been taken into consideration, the outcome of the election results would not have changed significantly.

He could have quoted parts of the judgment that explain the decision to reject the counting of spoilt votes. He might have embellished the judgment with some oratory that assured Kenyans that the Supreme Court is fair and transparent, and can be trusted with future election petitions.

Many judges around the world have become famous for their use of inspirational and convincing words during judgments.

As a champion of social justice movements, Chief Justice Mutunga should know that words carry weight and can move mountains. The announcement of this landmark judgment deserved more than a cursory statement
.