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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

Former top politician talks at UFS School of Management
2007-04-25

Dr Matthews Phosa, the non-executive chairman of EOH and former politician, presented a guest lecture to a group of MBA students at the University of the Free State's (UFS) School of Management. At the lecture were from the left: Mr Tate Makgoe (Free State MEC for Finance), Ms Nontobeko Scheppers (MBA student), Dr Phosa, Prof. Helena van Zyl (Director: UFS School of Management) and Mr Setjhaba Tlhatlogi (MBA student).
Photo: Stephen Collett

Exploring some of the myths and opportunities cyber space offers

Mathews Phosa

Introduction

It is no longer business as usual. Globalisation poses new challenges as well as opportunities to business, education and society in general. Many of these new opportunities are alive with paradoxes and tensions between local sustainability and global market opportunities. The growth in new communication technologies challenges us to critically explore some popular myths, opportunities and define possible responses.

Cyberspace is often described as the new frontier – not only in the race for newer and faster technologies, but also in education. Any user or provider of services who does not explore this new frontier will soon be considered using “outdated” and will be accused of using obsolete methodologies. Cyberspace, like the spaces embodied in continents, is something that should be claimed and conquered.

Cyberspace and specifically access to information, including online education is hailed as the great equaliser. It is now claimed that everyone will have equal access to “Knowledge”. Cyber education  for example is celebrated as “education-without-borders”, but as Bauman states, while it does change borders and access, it creates new “haves” and “have-nots”.

 

To put it in a nutshell:  rather than homogenizing the human     condition, the technological annulment of temporal/spatial distance tends to polarize it.  It emancipates certain humans from territorial constraints and renders certain community-generating meanings     exterritorial – while denuding the territory, to which other people go on being confined, of its meaning and its identity-endowing capacity.
(Bauman 1989:18; emphasis mine).

Virtual environments and the possibilities offered by the World Wide Web are new spaces that are being colonised and occupied by those who have capital (whether economic or academic) and who are looking for new labour or markets.  While the new mediums include and conquer new spaces, it also excludes and “otherises” communities and segments of society (Prinsloo 2005).  Cyberspace provides institutions and corporations with a space to operate without the responsibilities and obligations of locality – as long as you can afford the privilege of operating in cyberspace.

Cyberspace is therefore not neutral.  Spaces are occupied, reoccupied, abandoned, claimed, fortified, secured – contested.  Those with mobility define and map spaces continuously according to their claims.  Those without capital and the mobility it brings, contest these claims, contest the spaces and hack into the space.  Reclaim it.  Recolonise it.

 

Re-Appropriating Cyberspace

A number of authors explores such a re-appropriation of cyberspace.  Instead of seeing the Internet and related functions like online teaching as just accessing and transferring information, cyberspace is explored as political, social, personal and economic space.  Institutions across the spectrum including higher education institutions venturing into cyberspace often think that it offers them a space without the usual socio-cultural complexities. Gunn, McSporran, Macleod and French (2003:14) however indicate that online “interactions that take place through electronic channels lose none of the socio-cultural complexity or gender imbalance that exists within society”.

Instead of cyberspace being a new space where the differences and disparities of non-virtual life on earth cease to exist, “cyberspace is an imagined network layer sitting on top of the physical infrastructure of cities. Cyberspace is an imagined, continuous, worldwide, networked city; the global city that never sleeps, always experienced in real time” (Irvine 1999, Online). Cyberspace therefore not only sits on top of the physical infrastructure, but is also a mirror image of the power structures and disparities of non-virtual life on earth.

Cyberspace is also much more than just a replication of non-virtual reality. New subcultures and new self-defined communities are coming into existence (Irvine 1999, Online).  These new communities in cyberspace resemble communities in non-virtual format, but they are also vastly different.  For example, Grierson (Online) explores the similarities between cemeteries and the communities in cyberspace.  She finds that, although both “communities” are constituted in space, it is a “placeless place” which “links and mirrors society, with all its alter-egos and hidden desires … a virtual site holding up a mirror to physical reality where subjective presence is delineated in imaginary absence”.

The Internet as “sites for power and knowledge” is further explored by a number of authors, amongst othersNewman and Johnson (1999), Usher (2002), Walmsley (2000) and Borer (Online). Jordan (1999, Online) investigates culture and politics in cyberspace.  He explores three “intertwined levels”, namely cyberspace as “playground of the individual”, as “social space, a place where communities exist” and as “being a society or even a digital nation”.  In each of these three levels, power is played out and claimed in a “sociological, cultural, economic and political battle between the individual and a technopower elite”.

The so-called impact of the Internet on society is discounted by Bennet (2001:197).  He suggests rather that the Internet “should be regarded as a “form of life – whose evolving structure becomes embedded in human consciousness and social practice, and whose architecture embodies an inherent valence that is gradually shifting away from the assumptions of anonymity upon which the Internet was originally designed” (2001:197).

We started by stating that it is no longer business as usual. We can no longer afford epistemologies of ignorance and politeness. Cyberspace and the opportunities it offers for business, society and education in particular need to be interrogated using a hermeneutics of suspicion, confronting certain myths, exploring opportunities and defining appropriate responses.

It is evident that the impact of the cyberspace stretches across the total spectrum of the human experience and condition.  Due to the complexity of discussing the total spectrum of options this discussion focuses on Higher Education as one entity to demonstrate the implications and level of reflection required.
To come to terms with some of theses realities it is necessary to address some of the typical myths. The following aspects provide an indication of some of the myths:

  • Myth 1 - Access. The Internet and online education is not the great equaliser. Access to the Internet on a sustainable and affordable basis is still for the rich and the privileged. There is good reason to celebrate the widening access citizens have to the Internet. In the last number of years the so-called “digital-divide” has indeed decreased. It is however still disputable that having access to the World Wide Web changes lives for the better. For the World Wide Web to deliver on its promise of changing society into more just and compassionate communities, the other divides in society have to be addressed as well.
  • Myth 2 - Quality of information available. Even when/if sustainable and affordable access to the Internet would be available to all; the overwhelming quantity of information on the Internet would require participants to have critical information literacies. Such literacies will be crucial in allowing the “having access to more information” to really allow participants to live differently. Bauman (1989) and others warn of the increasing commodification and consumerisation of knowledge; the immense amounts of information available on the Web, results in information and knowledge becoming “cheap”, and un-validated.  
  • Myth 3 – The role of race and gender. Current research indicates that the unequal socio-economic gender relations are perpetuated in cyberspace. Females have less access and often less frequent access due to prescribed and patriarchally perpetuated life-roles. Research also indicates that males frequently dominate online discussions, often relegating female participants to roles of quiet observer. In this “neutrality” of cyberspace the assumption often is that gender should not matter in a space where identity is often just a name and a short introduction. There is however enough research to validate the role identity and specifically race and gender play in online learning environments.
  • Myth 4 – Guaranteed success as learning platform. International research indicates that very few students opt for fully online learning. Even in countries where access to online environments are either state-sponsored or very cheap, learners do not prefer online learning to more face-to-face learning environments. Students seem to prefer a range of blended learning experiences, rather than fully online. This has impacted on several world-class universities forcing them to cancel fully online offerings. Fully online learning and interaction require specific literacies and personality traits of participants. Online learning is not a “one size fits all”.

 

Research in South Africa indicates that many learners use computers at work to access their learning environments. Not only does this impact on productivity, but learners therefore do not have access to their online learning environments over weekends and when they prepare for the examination. Employers also increasingly block mass-generated electronic correspondence from universities and limit learners’ access to the Internet. This results in learners experiencing growing frustrations with “fire-walls” that do not allow an effective learning environment.

Very few learners are sufficiently prepared to engage and sustain their own learning in a fully online environment. Institutions offering online learning are often inundated with requests for more support, often face-to-face.

  • Myth 5 - Quality in an online learning environment. At present there are no quality indicators specifically focused on online learning environments in higher education. The quality of the current offerings  range from “drop-off and go” experiences where students carry the cost of printing materials with very little continued support and interaction from the side of the institution, to very intensive online teaching which overestimates the time and resources that students have for such learning.
  • Myth 6 - Accountability.  Many overseas institutions offer online qualifications in other countries without any guarantee that the qualifications will be accredited by local institutions of learning or employers. Many students wrongfully belief that because it is offered by an international provider using online, that the learning experience will be of a high quality and that it will be accredited by local education institutions and employers.
  • Myth 7 - Global is better. Though there is a legitimate trend to ensure internationalisation in education, the need for contextual, local and authentic learning remains equally important. The challenges learners face are often context-specific and international tutors in online environments often have very little understanding for the cultural and socio-economic specificities of local contexts. Some metaphors and examples often used in online environments exclude participants from non –western cultures to fully comprehend and apply the learning to their own contexts.
  • Myth 8 - Online teaching and learning is ideologically neutral. All curricula arise from context specific ideological and socio-economic relations and epistemologies. Very few institutions foreground their specific beliefs and assumptions about knowledge and learning. This is even more so applicable in online learning environments where the “designers” of the learning are often even more hidden than in face-to-face contexts.

Opportunities

The Internet does however offer scores of opportunities for institutions of higher learning to seriously consider. The following is but a few of the opportunities that await careful and critical consideration.

  • Opportunity 1 - Reaching the un-reached. Yes, online teaching and learning bring opportunities to many learners who have been previously excluded from training, development and higher education. The reach of higher education does not only entail those who were previously excluded, but also brings into reach qualifications at internationally renowned institutions.
  • Opportunity 2 - Access to information. With the Internet, students have access to the most recent, cutting-edge information. Students will increasingly be able to compile their own curricula and have it validated by institutions of higher learning. Students now have access to the international discourses in the different disciplines at the click of a mouse. While there is a real danger that not all students have (yet) the critical literacies required by the Information age and secondly that they may be overwhelmed and become lost in cyberspace.
  • Opportunity 3 - Communication. With the Internet and other mobile communication technologies, learners can increasingly be in touch with institutions of learning and educators and peers. Learning experiences can be enriched by synchronous and asynchronous communication, between the institution and tutors, tutors among themselves, between tutors and learners and among learners themselves. Online learning really open up a Habermasian “public sphere” for “communicative action”.
  • Opportunity 4 - Mode 3 knowledge-production. Traditionally knowledge production in higher education focused on discipline specific transfer of knowledge, called mode 1 knowledge production. Paulo Freire called this “banking education” (1989). Recent years saw the development of Mode 2 knowledge production where knowledge was applied and arose from practical application to appropriate problem-spaces. Online learning environments make it increasingly possible to move to Mode 3 knowledge production where learners address problem-space from the foundations of a specific discipline but then continue to explore contributions from a range of other disciplines Knowledge production has moved form “knowing-how” to “knowing-in-the-world”. Barnett refers to this change as an “ontological turn” (2005).

The changing role of higher education

It will be naïve and irresponsible for higher education not to interrogate popular notions and epistemologies of online education and the role of the Internet. We have explored a number of myths and (hopefully) created sufficient suspicion to invite further discourse. We have also explored a number of opportunities an online environment offers to business, higher education and society in general.

Higher education has to indeed decrease the “digital divide” not only in the form of broadening access, but also by seriously interrogating the accompanying epistemologies. From the above it would seem as if a responsible and robust response would entail the following:

  • Response 1 - Empower learners with critical literacies for the information age. having access to the information the Internet offers will challenge higher education institutions and learners alike to be able to critically evaluate information and its sources. While addressing access may in fact decrease the digital divide but it is worthless if the decrease in the digital divide does not and cannot result in students’ critical engagement with information and with one-another.
  • Response 2 - Increase access to the Internet through collaborative agreements. Higher education institutions have much more bargaining power than individual learners. It is almost unbelievable that with the “captive audiences” higher education institutions have, that they have not been successful to negotiate more affordable and sustainable access to online environments.
  • Response 3 – Develop quality online learning. Higher education should be very clear about the minimum standards for learning platforms, opportunities for peer and tutor interaction and the sustaining of a teacher presence in Virtual Learning Environments (VLEs).
  • Response 4 – Maintain scholarly online teaching. Higher education should encourage research, individual and collaborative projects to determine the indicators of success of online learning in specific contexts for specific audiences.
  • Response 5 – Higher education as critical praxis.  Higher education traditionally has validated all claims to knowledge and expertise. As Barnett (2000, 2005) has indicated, higher education is no longer the only “producers of knowledge”. However, higher education still has the mandate to validate knowledge, whether claimed or made available in cyberspace. Higher education has the unique opportunity to rise to the occasion and to interrogate knowledge claims. The opportunities should be considered in the context of the realities of cyberspace as discussed.  Fundamental to this is the fact that it requires higher education to increase the capacity of students for critical and compassionate action to assist in the formation and utilisation of the challenges and new opportunities.  Essentially the challenge is to create opportunities and empower students and the broader society to utilise the potential cyberspace towards a more just and equitable society.

In Conclusion

There are a number of myths surrounding online education and the impact of the Internet on business, education and development. Only once cyber space has been demythologised, it is then that our eyes open to the opportunities that it offers. Higher education is therefore called upon to reflexively exploit the opportunities online learning and the Internet offer to engaging one another in learning experiences. Higher education will do well to take both the myths and the opportunities seriously and courageously.

Cyberspace is a new frontier. As previously done with colonial frontiers, this frontier can be exploited ruthlessly. There is however also an opportunity for business and higher education to engage with cyberspace – and use cyberspace to create hospitable, nourishing environments for active learning and a more just and equitable society for all.

References

  • Barnett, R. 2000. University knowledge in an age of supercomplexity. Higher Education 40:409-422.
  • Barnett, R. 2005. Recapturing the universal in the university. Educational Philosophy and Theory, 37(6):785-797.
  • Bauman, Z.1998. Globalization. The human consequences. Cambridge: Polity Press.
  • Bennet, CJ. 2001. Cookies, web bugs, webcams and cue cats: patterns of surveillance on the World Wide Web. Ethics and Information Technology 3:197-210.
  • Borer, MI. The Cyborgian self: toward a critical social theory of cyberspace. Available URL:
  • http://reconstruction.eserver.org/023/borer.htm (accessed on 10/04/2007).
  • Freire, P. 1989. Learning to question: a pedagogy of liberation. Geneva: World Council of Churches.
  • Gunn, C, McSporran, M, Macleod, H & French, S. 2003. Dominant or different? Gender issues in computer support learning. JALN 7(1):14-30.
  • Grierson, EM. From cemeteries to cyberspace: identity and a globally technologised age. Available URL: Click here!
  • (accessed on 10/04/2007).
  • Irvine, M. 1999. Global cyber culture reconsidered: cyberspace, identity and the global informational city. Available URL: http://www.georgetown.edu/faculty/irvinem/articles/globalculture.html
  • (accessed on 10/04/2007).
  • Jordan, T. 1999. Cyberpower: the culture and politics of cyberspace. Available URL:
  • http://www.isoc.org/inet99/proceedings/3i/3i_1.htm (accessed on 10/04/2007).
  • Newman, R & Johnson, F. 1999. Sites of power and knowledge? Towards a critique of the virtual university. British Journal of Sociology of Education 20(1):79-88.
  • Prinsloo, P. 2005. Don Quixote in cyberspace – charging at the invisible. Open and Distance learning in Africa Number 1, 2006: 78-94.
  • Usher, R. 2002. Putting space back on the map: globalisation, place and identity. Educational Philosophy and Theory 43(1):2002.
  • Walmsley, DJ. 2000. Community, place and cyberspace. Australian Geographer 31(1):5-19.

 

 

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