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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

Founding meeting of the Advisory Panel of the International Institute of Diversity
2008-11-21

The University of the Free State (UFS) today (20 November 2008) successfully convened and hosted the founding meeting of the Advisory Panel of the International Institute of Diversity.

In the wake of the Reitz video incident, the UFS wishes to establish an institute that will study and promote transformation on the campus as a microcosm of the much broader socio-political challenges facing South Africa. It is hoped that in due course the UFS and the institution will develop the expertise and experience to help other organisations and societies in transition.

The institute will work closely with the Transformation Cluster – one of six strategic academic clusters already created as part of the university’s long-term strategic plans.

Given the transformation climate in which it finds itself, the university recognises that the guidance, support and direct involvement of thought leaders and other specialists in the field of transformation are critical to the design and operation of the proposed institute. To this end, the university has established an advisory panel for the institute. The Advisory Panel will give guidance to the Executive Director (to be appointed) in helping with the conceptualisation, design, and development of the institute, and the compilation of its business plan.

Brian Gibson Issue Management facilitated the meeting and is also responsible for the reporting on the meeting. The International Institute for Development and Ethics (IIDE) co-hosted and provided the secretarial support for the meeting.

 


The members of the advisory panel:  

(Click here to read more about the Panel Members)

External panel members:

Dr Clint Le Bruyns, Senior Lecturer in Public Theology and Ethics at the University of Stellenbosch .

Dr Sebiletso Mokone-Matabane, Chief Executive Officer, Sentech Limited.

Dr Andries Odendaal works in the field of conflict transformation with international agencies such as the United Nations, DANIDA and GTZ.

Prof. Lungisile Ntsebeza, National Research Foundation (NRF) Research Chair in Land Reform and Democracy in South Africa in the Department of Sociology, University of Cape Town.

Mr Roger Crawford, Executive Director for Government Affairs and Policy South Africa, Johnson & Johnson.

Prof. Jonathan Jansen, Dean of the Faculty of Education, University of Pretoria 2001 to 2007.

Ms Zandile Mbele, Director of Plessey (PTY) Ltd. and the Transformation Executive for Dimension Data.

Dr André Keet, Director: Transdisciplinary Programme at the University of Fort Hare in October 2008 and part-time Commissioner with the Commission for Gender Equality.


Dr Reitumetse Obakeng Mabokela is an associate professor in the Higher, Adult, and Lifelong Education Program in the Department of Educational Administration at Michigan State University.

Dr Mpilo Pearl Sithole is a senior research specialist in the Democracy and Governance Research Programme at the Human Science Research Council.

Professor Steven Friedman, D.Litt. is Director of the Centre for the Study of Democracy at Rhodes University and the University of Johannesburg.

Representatives from UFS:

Prof. Teuns Verschoor, Vice-Rector: Academic Operations at the University of the Free State, and currently Acting Rector and Vice-Chancellor.

Prof. Piet Erasmus, Interim Co-ordinator for the Cluster Transformation in Highly Diverse Societies.

Prof. Lucius Botes, Director of the Centre of Development Support and Programme Director of the Postgraduate Programme in Development Studies.

Prof. Philip Nel, Former Director of the Centre for Africa Studies at the UFS.
 

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