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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 celebrates Madiba’s legacy with coin-laying ceremony on 18 July 2013
2013-07-15

 

Photo: Johann Roux
08 July 2013

The University of the Free State (UFS) will once again join South Africans as well as the broader international community on Thursday 18 July 2013 in celebration of the enduring legacy of beloved former statesman, Nelson Mandela.

The UFS aims to stay true to the spirit of giving and selflessness epitomised by Mandela Day, focusing on the university community as well as the city of Bloemfontein.

This year’s event will strive to eclipse the success achieved during the 2012 event which featured Archbishop Emeritus Desmond Tutu as special guest.

The festivities on 18 July 2013 will kick off with university volunteers cleaning various areas of Bloemfontein. Departing from the Bloemfontein Campus at 09:00, the volunteers will clean areas in Heidedal and Mangaung with the help of the Mangaung Metropolitan Municipality.

In Heidedal, the volunteers will clean the crèche on the corner of Parish and Lackay roads as well as the old clinic on the corner of Parish and De Vries. In Mangaung, the volunteers will tackle the bustling Free Square on the Dewetsdorp road.

The larger celebration will take place on the Red Square of the Bloemfontein Campus at 12:00. Long-time Madiba confidant, Zelda la Grange, will deliver a message, followed by a R5 coin-laying ceremony.

La Grange will be joined by the motorcycle riders affiliated to the Bikers for Nelson Mandela Day, OFM presenter Johrné van Huysteen who will conduct proceedings, UFS Vice-Chancellor and Rector Prof Jonathan Jansen as well as UFS students, staff, other dignitaries and special guests.

The programme also includes a lucky draw with winners standing the chance to win restored bicycles. Tickets can be purchased through Annelize Visagie at 051 401 3258 or at visagiea@ufs.ac.za. The winners will be announced during the ceremony on the Red Square.

All proceeds of the coin-laying ceremony and lucky draw will be contributed towards the university’s No Student Hungry (NSH) Programme.

The NSH Programme was established in 2011 to help ensure needy students are supplied with a food bursary which provides them with the necessary nourishment to excel in their academic studies. The initiative has since become a university-wide endeavour and currently serves more than 100 students daily on the Bloemfontein and Qwaqwa Campuses.

Rag Community Service will also cater for the specific needs which the harsh Free State winter causes – especially to the poor. Close to 500 blankets will be donated on Mandela Day to five different charities, including Mosamaria Aids Ministry, Choc House and Freshly Young Minds.

For further information, please contact Marissa van Jaarsveld on 051 401 3834 or at nostudenthungry@ufs.ac.za.

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