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

DF Malherbe Memorial Lecture
2005-05-19

DF Malherbe Memorial Lecture: Language and language activism in a time of transformation (summary)
Proff Hennie van Coller and Jaap Steyn

Language activism necessary for multilingualism
The awareness is growing that language activism will be needed to bring about a truly democratic multi-lingual society. What is quite clear is that a firm resolve must continuously resist the concentrated pressure on Afrikaans-medium schools (and universities) to allow themselves to be anglicised through becoming first parallel medium, then dual medium, and finally English medium institutions.

Proff Hennie van Coller and Jaap Steyn said this last night (Wednesday night) in the 24th DF Malherbe Memorial Lecture at the University of the Free State. Prof van Coller is head of the Department Afrikaans, Dutch, German and French at the UFS. Both are widely honoured for their contributions to Afrikaans and the promotion of Afrikaans.

They discussed three periods of transformation since 1902, and said about the current phase, which started in 1994:  “Besides all institutions and councils having to be representative of South Africa’s racial composition, places of education were required to open their doors. Quite rapidly this policy has had the result that schools and universities may be solely English medium, but not solely Afrikaans medium. Afrikaans medium institutions — if they claim the right to remain Afrikaans — are quickly branded racist, even though their student body may include all races.

“Education departments are presently exerting great pressure on Afrikaans medium schools to become double or parallel medium schools.  Parallel medium education is an equitable solution provided it can be sustained. Established parallel medium schools, such as Grey College in Bloemfontein, have catered even-handedly for English and Afrikaans speakers for decades. But the situation is different in the parallel medium (and still worse in the double medium) schools that spring up usually at the behest of a department of education.

“Afrikaans schools are converted almost over-night into parallel or dual medium schools without any additional personnel being provided. Depending on the social environment, a parallel medium school becomes reconstituted as a dual medium school on average in five to eight years, and dual medium school becomes an English-only school in two to three years. Some Afrikaans medium schools have become English medium in just three years.

“Though the Constitution recognises mono-lingual schools, officials in the provinces insist that Afrikaans schools become dual or parallel medium; English medium schools are left undisturbed. One must conclude that the tacit aim of the state is English as the sole official language, despite the lip-service paid to multi-lingualism, and the optimistic references to post-apartheid South Africa as a ‘rainbow’ nation.”

They said a recent study has shown that the 1 396 Afrikaans schools in the six provinces in 1993 have dwindled to 844. The fall off in the Free State is from 153 to 97; in the Western Cape from 759 to 564; in Gauteng from 274 to 155; in Mapumalanga from 90 to 3; in the North West from 82 to 13; and in Limpopo Province from 38 to 12.

They said the changes at universities, too, have been severe, as university staffs well know. Ten years ago there were five Afrikaans universities. Today there are none. The government demanded that all universities be open to all, which has meant that all universities have had to become English medium. And no additional funding was forthcoming for the changes. The government policy amounts to a language “tax” imposed on the Afrikaans community for using Afrikaans.

“Only when all schools (and universities) are English will the clamor cease. Academics and educationists are beginning to speak openly of forming pressure groups to save Afrikaans schools, and of using litigation as one of their methods. 59% of Afrikaans parents have said they would support strong action if Afrikaans were no longer a medium of instruction at schools.”

 

 


 

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