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No compromise: Language-fair trial rights

16 January 2024 | Story Valentino Ndaba and Dr Cindé Greyling | Photo Sonia Small

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

SA cannot sustain momentum - Boesak

2010-09-02

Photo: Stephen Collett

South Africa finds it increasingly difficult to live up to the challenges facing it as a nation because of its failure to meet its democratic ideals and possibilities, peace and lack of self-belief.

This was according to renowned cleric and former political activist, Dr Allan Boesak, who recently delivered the CR Swart Memorial Lecture, the oldest memorial lecture at the University of the Free State (UFS). His lecture was on the topic Creating moments, sustaining momentum.

He said South Africa had plenty of opportunities to show the whole world what was possible if all the people of this country joined hands and worked together to build a truly united society. However, he said, the country somehow invariably contrived to find its way out of these wonderful possibilities.

He cited events of historical significance like Codesa, the inauguration of Nelson Mandela as the first democratic president of South Africa, the assassination of South African Communist Party leader, Chris Hani; and the rugby and soccer world cups.
To drive his point home about this dismal failure of the country to “sustain momentum”, he alluded to the current public servants’ strike that is gradually crippling public service.

“The public servants’ strike was neither unexpected nor is it completely unjustifiable. Most of us have understanding for the frustration of teachers and health workers. Their demands resonate with most of us, and I think that it is scandalous of SACP fat cats to tell workers to “stop crying like babies,” he said.

He also added to the criticism of the much-maligned decision of the government to spend billions of taxpayers’ money to purchase weapons when there was “no discernible military threat” to the country. He said the greatest threat to the security of the country was poverty, inequality and social cohesion.

“As for the argument that arms sales bring in foreign exchange – how can we be instrumental in killing the poor elsewhere with the intention of feeding our poor, and then our ill-gained profits feed only the already well-fed?” he asked.
“Can we see the hopeless contradiction, the total impossibility of being both the apostle of peace and a merchant of death?”

He also lambasted the Black Economic Empowerment (BEE) policy of the government which he said benefited only those connected to the political aristocracy.

“It couples with the unashamed, in-your-face display of wealth by the privileged elite in this country, the crass materialism of the so-called “bling generation”, and the casual carelessness with which promises to the poor are given and treated. It is only the public symptom of the deep-seated scorn our political elites feel for the poor,” he said.

He said the government’s disdain to the poor was “setting fire to our future”.

“The anger of people on the ground can no longer be denied or ignored, and little by little, the leadership articulating and directing this anger is being estranged from politically elected leadership, and even more disturbing, from our democratic processes,” he said.

He concluded that the country’s difficulty in dealing with race and racism was putting the reconciliation process kick-started by Mandela just over a decade ago, under a threat.

Complete Lecture

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