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Dr Catherine Namakula
According to Dr Catherine Namakula, language-fair trial rights are entrenched as constitutional imperatives in many African countries.

Dr Catherine Namakula is Senior Lecturer of Public Law at the University of the Free State and a member of the United Nations Human Rights Council’s Working Group of Experts on People of African Descent. In her latest book, Fair Trial Rights and Multilingualism in Africa, she incorporates a ‘language-fair trial rights code’ – an amalgamation of 31 principles proven by case law and trial practice as best approaches to ensuring language-fair trial rights.

The code advances the minimum language guarantees for vulnerable participants, especially persons with speech and hearing disabilities, sign language users, accused persons making confessions, and victims of gender-based or sexual violence. Bult discussed her research in more depth with her.

Your research spans multiple jurisdictions in Africa, from the Sahel region to the Horn of Africa and the Cape. What country-specific practices have you found regarding fair trial rights in these regions?

Language-fair trial rights are entrenched as constitutional imperatives in many African countries. They are non-negotiable. Nigerian and Kenyan courts have exceeded rhetoric and lip service to language-fair trial rights and actually declared trials absolute nullities due to lack of comprehension of proceedings by accused persons. Indigenous languages are languages of record in Ethiopia, Rwanda, Somalia, and Tanzania.

Rwanda elevates the standard of linguistic competence of an accused to thorough competency, whereas in Lesotho this translates to the mother tongue. In Canada, even jury panellists are subjected to language competency tests, and in South Africa, judges are assigned cases according to their proficiency in the language indicated by the trial participants as the preferred language of trial. Almost all the studied countries express no compromise on the principle that a confession must be recorded in the language used by the person making it.

Multilingualism is a significant challenge in legal processes across Africa. What were some of the most common issues or difficulties related to language that you identified during your research, and how do these impact the fairness of trials?

There is a gap bordering on disconnection between the formal courts and the population they serve – to the extent that legal processes are perceived as elitist and foreign, mainly because of the language question. Trials require unequivocal expressions, whereas African tradition for the most part considers sexual language as pervasive. This constrains the trial and punishment of sexual violence.

Investment in the standardisation of sign languages is limited, making the trial of persons with speech disabilities in their ‘home-made’ languages impracticable. There is heavy reliance on translation and interpreting to propel trials, often leading to resource constraints and recourse to controversial measures, such as engaging police officers as interpreters.

Transplanting African customs from indigenous languages to fit court situations by way of translation leads to loss of meaning and watering down of concepts. African courts battle with evaluating interpretative competency against the backdrop of a lack of training of judicial interpreters on the continent. Measuring linguistic comprehension is an actual challenge for courts, often manifesting in asking people whether they know what they do not know, but this research presents the objective test based on special circumstances advanced by the Supreme Court of Justice of Ontario that would resolve this hurdle.

Your book also mentions the potential applicability of lessons from African jurisdictions to those outside of Africa.

Contrary to popular opinion, the study confirms that African languages are already serving as channels for trials; they are not merely colloquial speech, but carriers of identities and human dignity. They should not be ignored but recognised and promoted. A trial that must proceed in a language that an accused person does not understand is a trial in absentia and the safeguards governing such trials must apply.

As the legal landscape and languages in Africa continue to evolve, what recommendations or measures do you propose to improve existing approaches to ensuring fair trials in multilingual contexts?

Decolonial discourse and reparation to Africa from the legacies of enslavement, colonialism, and apartheid should characterise the rise in esteem of African languages in all spheres of society. The use of intermediaries in Kenya and South Africa to protect and support vulnerable victims – especially children and victims of gender-based violence – in their communication with the courts should be emulated by other countries and extended to persons who are illiterate, in order to mitigate the intimidating sophistication of the courts on our people.

News Archive

Africa's Black Rhino conservation strategy must change
2017-07-10

 Description: Black Rhino Tags: conservation strategy, black rhino, Nature Scientific Reports, National Zoological Gardens of South Africa, extinction, decline in genetic diversity, Prof Antoinette Kotze, Research and Scientific Services, Dr Desire Dalton 

The black rhino is on the brink of extinction. The study that was 
published in the Nature Scientific Reports reveals that the
species has lost an astonishing 69% of its genetic variation. 
Photo: iStock

The conservation strategy of the black rhino in Africa needs to change in order to protect the species from extinction, a group of international researchers has found. The study that was published in the Nature Scientific Reports reveals that the species has lost an astonishing 69% of its genetic variation. 

South African researchers took part 
The researchers, which included local researchers from the National Zoological Gardens of South Africa (NZG), have highlighted the fact that this means the black rhino is on the brink of extinction. "We have found that there is a decline in genetic diversity, with 44 of 64 genetic lineages no longer existing," said Prof Antoinette Kotze, the Manager of Research and Scientific Services at the Zoo in Pretoria. She is also affiliate Professor in the Department of Genetics at the University of the Free State and has been involved in rhino research in South Africa since the early 2000s.  

DNA from museums and the wild 
The study compared DNA from specimens in museums around the world, which originated in the different regions of Africa, to the DNA of live wild animals. The DNA was extracted from the skin of museum specimen and from tissue and faecal samples from animals in the wild. The research used the mitochondrial genome.

"The rhino poaching ‘pandemic’
needs to be defeated, because
it puts further strain on the genetic
diversity of the black rhino.”


Ability to adapt 
Dr Desire Dalton, one of the collaborators in the paper and a senior researcher at the NZG, said the loss of genetic diversity may compromise the rhinos’ ability to adapt to climate change. The study further underlined that two distinct populations now exists on either side of the Zambezi River. Dr Dalton said these definite populations need to be managed separately in order to conserve their genetic diversity. The study found that although the data suggests that the future is bleak for the black rhinoceros, the researchers did identify populations of priority for conservation, which might offer a better chance of preventing the species from total extinction. However, it stressed that the rhino poaching ‘pandemic’ needs to be defeated, because it puts further strain on the genetic diversity of the black rhino. 

Extinct in many African countries 
The research report further said that black rhino had been hunted and poached to extinction in many parts of Africa, such as Nigeria, Chad, Cameroon, Sudan, and Ethiopia. These rhino are now only found in five African countries. They are Tanzania, Zimbabwe, Kenya, Namibia, and South Africa, where the majority of the animals can be found. 

 

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