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No compromise: Language-fair trial rights

16 January 2024 | Story Valentino Ndaba and Dr Cindé Greyling | Photo Sonia Small

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 awards honorary doctorates during its centenary week

2004-10-07

The University of the Free State (UFS) will award 12 honorary doctorates on Thursday 14 October 2004 to a diverse group of outstanding South Africans and international experts.

This will be the last in a group of 18 honorary doctorates that the UFS will be awarding in its centenary year.

The awards comprise of a number of well-known language experts and writers, experts in higher education, first-time awards in community service and development studies, as well as music.

“This reflects quality and also diversity, a spectrum of convictions as well as the recognition of persons who played a major role in changing society in the last couple of decades, “ says Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS.

The awards can be grouped in the following categories:

Language and literature:

Mr Karel Schoeman (D Litt (hc)) – well-known Afrikaans author and former student of the UFS. Some of the awards he has received include the Hertzog prize for prose (1970, 1986 and 1995), the CNA prize (1972 and 1994), the Old Mutual prize (1985 and 1991), the SABC prize for best television drama in 1990, the M Net book prize in 1997 and the State President award (former President Nelson Mandela: Order for Excellent Service – silver) in 1999. It is an honor for the UFS to have this gifted and creative person among its former students. This conferment is a fitting recognition of his status as leading South African writer.

Ms Antjie Krog (D Litt (hc)) – well-known South African poet and former student of the UFS. Her popularity as poet is evident in her piercing honesty and unequalled power of expression. Some of the awards she has received include the Eugéne Marais prize in 1973, the Rapport prize in 1987, the Hertzog prize in 1990 and the RAU prize in 2000. Her writing has been translated into seven languages. She has also received numerous honors for her involvement in and journalistic documentation of the Truth and Reconciliation Commission’s (TRC) proceedings. It is therefore an exceptional privilege for her alma mater to honor her with an honorary doctorate.

Prof Jaap Steyn (D Litt (et phil) (hc)) – recently, Prof Steyn again distinguished himself as biographer whose thorough research is apparent in the published biographies of illustrious writers such as NP van Wyk Louw and MER. The numerous awards, among which the Stals prize from the South African Academy of Science and Art for the Van Wyk publication, are a matter of record. He conducted the research for this great prize-winning work as honorary professor at the UFS.

Prof Jakes Gerwel (D Phil (hc)) – Chancellor of the University of Rhodes and Director of Naspers, Old Mutual, Gold Fields and Brimstone. His doctoral thesis was published in The Netherlands under the title Literatuur en apartheid. Konsepsies van “gekleurdes” in die Afrikaanse roman tot 1948 (1983). He received an honorary doctorate from Clark College ( Atlanta), the City University of New York and Missouri in the USA, the University of the Western Cape, the University of Cape Town, the University of Natal, Rhodes University, the University of Stellenbosch and the University of the Witwatersrand. He is also outstanding professor in the Humanities at the University of the Western Cape, honorary professor in the Humanities at the University of Pretoria, and was the chairman of the Human Sciences Research Council (HSRC).

Development Studies:

Dr Frederick van Zyl Slabbert (D Phil (hc)) – for his academic achievements, his endeavors for bringing about a peaceful transition in South Africa and his demonstration of the social investment role of the corporate sector. Dr Van Zyl Slabbert has received honorary degrees from the University of Natal and the Simon Fraser University in Canada. He has published seven books and various academic articles.

Community Service:

Prof Robert G Bringle (D Phil (hc)) – from the Indiana University-Purdue University Indianapolis (IUPUI) in the USA. He is currently Chancellor’s Professor of Psychology and Philanthropic Studies at the IUPUI and also Director of the IUPUI’s Centre for Service Learning. He is honored for his exceptional contribution to several of the UFS’s community service projects as well as his role in the advancement of a multi- and inter-disciplinary approach to academic development and the integration of service learning within the faculties of the UFS. He has also made a valuable contribution to the conceptual framework of the UFS’s unique community service policy and more recently to the advancement of a research culture regarding community service.

Higher education:

Dr Khotso Mokhele (D Phil (hc)), President of the National Research Foundation (NRF) is honored for his contribution to the South African higher education sector. He has also made a substantial contribution to the development of the research capacity of universities and technikons in South Africa. Dr Mokhele was born in Bloemfontein and matriculated at the Moroka High School in Thaba Nchu.

Prof Saleem Badat (D Phil (hc)), the Chief Executive Officer of the Council on Higher Education (CHE). Prof Badat has devoted himself to transforming and building South African higher education, and has constantly challenged the higher education sector to retain the moral basis of higher education and tackle its challenges with intellectual honesty, ingenuity, creativity and courage. He is honored for his intellectual leadership in the development of a equitable, just and quality higher education system in South Africa.

Law:

Prof HA (Boelie) Wessels (D Legum (hc)) – for his contribution to the fields of Roman Law, Legal History at the UFS. He is currently a part-time lecturer at the UFS’s Faculty of Law.

Medicine:

Prof CJC Nel (D Phil (hc) Posthumous) – for the way in which he strived for the advancement of excellent medical education in the country. Prof Nel also did pioneering work in the field of transformation in higher education. Under his guidance the School of Medicine at the UFS became one of the first medical schools to adopt a parallel-medium system of instruction.

Music:

Prof Leo Quayle (D Mus (hc)) – for the significant contributions he has made to the development of music – not only in Bloemfontein, but also on national level and abroad. His initiative, enthusiasm and dedication contributed to the eventual founding of the Free State Musicon, as well as the first symphony orchestra and the first string quartet in Bloemfontein. Prof Quayle is a former head of the Department of Music at the UFS.

Prof Jack de Wet (D Mus (hc)) – well-known for his exceptional contribution to violin tuition in South Africa. As pedagogue of international stature, he still moulds violinists who compete at national and international level. At an advanced stage of his career, he still actively conveys his knowledge, experience and distinctive insight in his field of speciality to yet another new generation of young violin teachers. Today the symphony orchestras in Bloemfontein and Port Elizabeth also stand on the foundations laid by him.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
7 October 2004

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