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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

Spring Graduation
2011-09-12

 

Our university will be awarding altogether 91 diplomas/certificates and 624 degrees during the Spring Graduation Ceremony on 14 and 15 September 2011. Of these, 23 doctorates and two honorary doctorates will also be awarded.

As with this year’s Autumn Graduation Ceremony, we will be making the ceremony more accessible to students and the public. Two appearances, in particular, can be looked forward to on this occasion: a national concert pianist in Grade 12 from Voortrekker High School in Bethlehem, Caryn Reed, and a continental debating champion and second-year student in our Faculty of Economic and Management Sciences, Sibusiso Tshabalala, as guest speaker.
 
All the master’s and doctoral degrees of the various faculties will once again be awarded during one ceremony on 15 September 2011.
 
Prof. Robert Frater, Emeritus Professor in Thoracic and Cardiovascular Surgery, and Emeritus Professor of Paediatrics, Albert Einstein College of Medicine and Montefiore Medical Centre, New York, will be receiving an honorary doctorate in Medical Science. As a teacher and trainer, Prof. Frater has influenced many surgeons in his training role in the wards, operating room and intensive care facility. Dr Akilagpa Sawyerr, an academic from Ghana, will be receiving an honorary doctorate in Education for groundbreaking work done on the African continent. Dr Sawyerr, who is a member of our International Advisory Council, has visiting appointments at prestigious universities, such as the famous Fletcher School of Law and Diplomacy at Tufts University. He also has visiting status at the Harvard Law School and the Yale Law School.
 
The full programme for the various ceremonies is:
  • Wednesday, 14 September 2011:
At 10:15, the degrees will be awarded to students of the Faculties of Humanities, Education, Law and Theology. Diplomas/certificates up until honours degrees will be awarded. This excludes the Certificate in Education, National Professional Diploma in Education and the Advanced Education Certificate.
 
At 15:15, degrees will be awarded to students in the Faculties of Economic and Management Sciences and Natural- and Agricultural Sciences and Health Sciences. Diplomas/Certificates up until honours degrees will be awarded.
  •  Thursday, 15 September 2011:
At 10:15, a total of 125 master’s and doctoral degrees plus two honorary doctorates will be awarded by all the faculties in a joint ceremony.
 
The Chancellor’s Dinner will also take place on the same day.

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