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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

UFS cracks down on crime on campus
2006-03-15

A comprehensive plan to step up the security on the Main Campus of the University of the Free State (UFS) in Bloemfontein, was approved by the Executive Management (EM) this week.

“The plan briefly comprises of the introduction of reasonable and affordable measures that will promote a safe campus and working environment,” said Rev Kiepie Jaftha, Chief Director: Community Service at the UFS.

“With the plan we want to try and create a user friendly, but safe campus,” said Rev Jaftha.

The plan is the result of an intensive investigation about campus security done by an EM task team.

The following measures will be implemented immediately in phases:

The five current vehicle entrances and exits will remain (i.e. the gate at Nelson Mandela Avenue, the gate at Roosmaryn, the gate at Agriculture, the Wynand Mouton Avenue gate and the Furstenburg Road gate).

The number of smaller pedestrian gates will be reduced and security at those remaining will be increased.
The fences around the campus will remain, upgraded and patrolled on a daily basis.

The security measures at high risk areas (e.g. the Kovsie Church) will be stepped up and the fences in these areas will be electrified.

Vehicle exit control will be stepped up at the gates by means of a mixture of electronic and compulsory visual security control.

Public areas, streets and footpaths will be patrolled and shrubs and trees will be cut and pruned. The streets, footpaths and buildings will also be lit. 

Speed reducing mechanisms will be implemented before and after the security control points at all the gates.
Additional staff will be appointed to facilitate the flow of traffic at the gates.

“Over and above these measures, the EM also approved in principle the installation of electronic equipment at all the entrance gates. This will include the installation of cameras,” said Rev Jaftha.

According to Rev Jaftha the installation of the electronic equipment will be complemented by the compulsory cutting and restarting of engines for all vehicles exiting the gates. The measure has been in force since 1 February 2006.

Last year special measures were put in place to safeguard residences and their inhabitants when security guards were placed at all the ladies residences. These measures will stay in force.

“Regular audits will be done to determine the effectiveness of the strategies and systems. Although crime in and around the campus grounds can never be completely eradicated, we want to strive to create an environment on campus and in the workplace where it can be limited,” he said.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
15 March 2006

 

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