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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.

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Qwaqwa Campus opens: Prof. PA Mbati's speech
2005-01-22

Official welcome speech by Prof. PA Mbati for 2005 first year students held on Saturday 22nd January 2005. Program Director, The Chief Director Operations Rev. Kiepi Jaftha, Dean of Students Dr. Natie Luyt, Program Head of the Faculty of Humanities, Dr. Elias Malete, Program Head of Faculty of Natural and Agricultural Sciences, Prof. Riaan Luyt, Acting Program Head of the Faculty of Economics and Management Sciences Prof. Andries Venter, Deputy Director Student Affairs Mr. Teboho Manchu, Coordinator Finance: Mrs. Elizabeth Nchapi, Senior Librarian Mr. Stoffel Kok, Senior Magistrate Mr Saul Mohosho, SRC President Mr. Tello Motloung, members of staff, invited guests, parents, guardians, my dear students, ladies and gentlemen.

It is indeed my pleasure to welcome you to the official welcoming ceremony of the UFS-Qwaqwa Campus 2005 first year students. Our Rector and Vice Chancellor Professor Frederick has requested me to pass to you his warmest wishes and regards on this special occasion. I am confident that the orientation exercise in which you have participated has achieved the desired effect of introducing you to your new way of life here on campus, and that you are now sufficiently prepared to get on with the rigors of being a student at this University.

Following the restructuring of the higher education landscape, the Qwaqwa campus was incorporated into the University of the Free State with effect from January 1 2003 . As a consequence, Management was faced with a whole complex series of challenges including, primarily making the campus financially viable, but also ensuring that it remains relevant in it’s core business as a satellite campus of the University of the Free State in terms of its teaching, learning, research and community service responsibilities.

A whole series of strategic planning workshops were conducted last year with both internal and external stakeholders. Various important strategic objectives were flagged out, and the next level of consultation will take place soon. I know that there is a lot of eagerness, sometimes to the level of impatience to see this process completed as quickly as possible. But again on the other hand, due to the far reaching consequences of any hasty decisions, plus the need for a carefully planned process, we need to be a little more patient before the implementation of the strategic objectives is implemented. You will be kept informed as this important and critical aspect in the evolution of our campus takes place.

As a response to the need for a more effective governance model on the Qwaqwa campus, a review of the governance structure was completed towards the end of 2004 and will soon serve before the Executive of the Executive Management for approval.

Due to the importance that top management attaches to the development of an effective governance on the Qwaqwa campus, the process was facilitated by an internationally acclaimed consultant. Again the contents of the revised governance model will be made known to the campus and the broader community once it is approved.

I am glad to report that in recognition of the need to improve the infrastructure on campus to provide a conducive learning atmosphere to our students, a total of 8.2 million rands was made available towards the end of 2004 for recapitalization of specifically our student residences and lecture venues. The first phase of the residence renovation is completed and residences C, D and E have now been officially handed over to the University by the Contractor. Among the features of the renovated residences is that they will now computer rooms, kitchenettes for cooking, and a redesigned TV room. The rooms have even been fitted with heaters. Our challenge will now be to maintain our newly acquired facilities and to ensure that they do not again deteriorate to an un-acceptable level. The second phase of renovation will start soon.

As indicated in my address during the orientation week, our obligation to you as a campus is to offer you quality training to the best of our ability, and to disseminate this knowledge to you within a conducive atmosphere worthy of good learning. On the other hand, our students have to take advantage of this opportunity to acquire the necessary skills and training in the various academic programs that we offer on campus.

We have a very simple agenda on this campus – our vision is to continuously strive to build and develop the Qwaqwa campus of University of the Free State into a truly quality institution of higher learning in our country. To develop a tradition and culture in which we are proud of who we are, and constantly and tirelessly working towards excellence in our academic programs, and other non-academic but core and important aspects in your growth and development such as sport and community service. To nurture young conscientious citizens who are aware of their duties and responsibilities. Ultimately to produce hard working young people who fully exploit their potentials, and who will serve this country with diligence when unleashed into the real world in effectively managing their roles and responsibilities in society, whether in private or government civil service.

I would like to encourage that the various stake holders of this campus, the students, academic, administrative and support staff, and our broader community, to work together in harmony for the well being of our campus. For this campus to continue to be relevant in the environment that we find ourselves, there is a need for continuous engagement of its various stake holders, and genuinely listening to each other. We must continuously and regularly keep our feelers on alert in order that we can remain relevant.

I am particularly inviting our parents and guardians, the alumni of this campus, and leaders from our community to join hands with us in seeking solutions to the various challenges that we continue to face on campus. I am open for frank and honest discourse on the best way forward for our campus.

The University of the Free State is committed in making tertiary education accessible to as many students as possible. In this regard, students who do not have the required ‘M’ score to gain entry into main stream classes are given an opportunity to study in the highly successful ‘bridging program’ in which learners are integrated with main stream students but with fewer courses to tackle in order to ensure success. This is done on the premise that such students have the potential to pursue a degree course, and that therefore within a well structured program, they can make a success of their lives.

The University is conscious of the fact that in many instances several academically deserving students fail to be admitted into university due to financial reasons. For students who are academically deserving but who because of reasons of poverty cannot pay the requisite fees, the university is able to assist such students through the National Financial Aid Scheme – commonly known as NSFAS, and University Merit Awards. Other incentives such as Sports bursaries are also available.

Please remember that it is important to balance your life on campus and the phrase ‘a healthy mind in a healthy body’ aptly describes this statement. Ensure that you participate in sport and cultural activities of this campus so that you can develop and strengthen the various God-given talents that you have been blessed with.

A second major ingredient for your success on campus is discipline and respect for rules, policies and procedures that govern the University of the Free State , and respect for your fellow students. Good discipline is a major contributory factor to success in life, and more so in your formative academic life at University. This means for example that you must attend all your lectures, complete your assignments on-time and visit the library frequently. Please manage your time wisely and responsibly. Remember that as a university student, you are basically the master and architect of your own destiny.

Think very carefully when you are confronted with difficult situations, be they negative peer pressure, or temptations to indulge in intoxicating drugs, and make the right choice.

The University has well trained personnel including a social worker, a psychologist and counselor, and members of the student affairs division under the leadership of Mr. Teboho Manchu, Deputy Director Student Affairs, who are available to assist whenever you require their help.

Today is also a special day because we have officially inaugurated the SRC President and the rest of the SRC leadership. I am sure that you all join me in congratulating the SRC for being elected to their leadership roles for 2005. Mr. SRC president and your team, please remember that you now have a huge responsibility in carrying out the aspirations of the student body on campus. I want to wish you luck and success as you champion the rights of your constituents, which I believe and trust will be compatible with management’s expectations with regard to quality teaching and learning on campus. As you are aware, Management values the input that the student leadership makes in the operational management of the affairs of this campus, and we look forward to a cordial, non-confrontational working relationship with a view of rendering un-paralleled service on campus.

Mr. Program Director, allow me to wish everyone here a successful and prosperous year. May the good Lord give us the strength and courage to overcome any obstacle that may be placed in our way in the course of our work in 2005.

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