Language as a facilitator of the right to a fair trial in Kenya

• Date: 03 November 2020
• Pages: 382-401
• Published date: 03 November 2020
• Citation: 2020 SACJ (2) 382
• Author: Namakula, C.S.

Language as a facilitator of the

right to a fair trial in Kenya

CATHERINE S. NAMAKULA*

ABSTRACT

The language in which a c riminal c ase is conducted may signica ntly

inuence the verdict, and i mpact on the right to a fair tr ial if the accused

does not properly understand t he language of the court. The cour ts of Kenya,

therefore, tolerate no compromise of the const itutional imperat ive that the

person on trial must u nderstand the language used in the proceedi ngs. This

paper examines the la nguage-based requ irements of fair tr ial as revealed

by the jurisprudence on core t rial processes such as jud icial interpreti ng,

plea taking, and confessions. A competent cou rt safeguards a fa ir trial

by ensuring that tr ial participa nts express themselves in the l anguage(s)

of their ability. This m ay require the provision of effect ive interpretative

assistance. There is nee d to professionalise judicial i nterpreting and to

foster the scientic and legal development of loca l languages in Kenya.

1 Introduction

Kenya is a multilingual societ y with approximately 42 spoken

languag es.1 In that context, a single trial may be conducted in at

least three languages.2 The Con stitution requires that a tr ial be

conducted in a language that the accused person under stands.3 This

is a fundamental requi rement for a fair trial. Language is a component

of a fair trial that is jea lously guarded under the Constitution.4 By

entrenching language guara ntees, the constitutional agenda is to ensure

a fair trial at all ti mes by eliminating false convict ions on account

* LLB (Makerere) PGDLP (LDC) LL M (Nottingham) PhD ( Wits), Professor of Human

Rights and Cri minal Justice, Glo bal Humanist ic University, Curaçao & Senior

Lecturer, Facult y of Law, University of Fort Hare.

1 NO Ogechi ‘On language r ights in Kenya’ (2003) 12 Nordic J Afr Studs 277, 279. They

include English, Embu, Gi kuyu, Gusii, Dawida, Dholuo, Ekegu sii, Idakho, Kiborana,

Kikamba, K ikuria, K imeru, Kip okomo, Kipsigis, Kisom ali, Kiswah ili, Luhya, Maa,

Mijikenda, Nandi, O rma, Pokot, Taita, Turkana, and Kenya sign lang uage, among

others.

2 Josphat Njue Solomon v Re public [2010] eKLR: English, Kiembu and K iswahili.

3 Article 50( 3) of the Constitution of Kenya 2 010.

4 John Ouma Awino v Republic [2014] eKLR p ara 21; Joseph Maina Kariuki v Republic

[200 8] eKLR: T he High Court a nd Court of Appeal of Ke nya have held that the

language in which pr oceedings are conducted is not a mere tech nicality as it has its

roots in the Cons titution; John Mugo Thiaka v Republic [2018] eKLR p ara 1: the issue

of language used dur ing trial is an issue of the right to a fai r trial.

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(2020) 33 SACJ 382

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of the inabilit y of the accused to understand the lang uage(s) used

when conducting their case and to facilit ate their full par ticipation

in the proceedings of the case agai nst them.5 A trial in a language

that the accused u nderstands en ables them to comprehend the nat ure

of the charge and the evidence to allow them to prepare and make

their defence if need be.6 Participation in a tri al is a communicative

process involving perceiving information, processing content, forming

responses and conveying such responses appropriately. Language,

therefore, goes to the very roots of the proceedings; if a tr ial is

conducted in a language(s) that the person does not understand and

the proceedings are not interpreted for them, the process would not

be tantamount to a fair tri al.7

The right to a fair trial is one of t he cornerstones of a just society.8 It

is an absolute constitutional right.9 Under no circumstances can it be

jeopardised.10 The courts, therefore, engage the services of t ranslators

and interpreters to bridge the ling uistic and communicative gaps

in multilingual procee dings. The issue is whether such interpreti ng

interventions meet the standard s required for justice to be achieved.

Translation and interpreting raise both subs tantive and procedural

questions relating to their efcacy. This paper explores the debate

on the language of trial in Kenya in t he rst part. The second par t

examines the fair tr ial principles and practices of interpretative support

to criminal adjudication. Par t three discuss es the effect of language on

legal representation, and the fourth par t investigates the key language-

based processes of crimi nal procedure that inuence tri al fairness,

including plea taking and confession.

2 The language of trial/language of court/language of the

record

The languages of court in Kenya are Engli sh and Kiswahili a s these

are the two languages commonly spoken and understood by a wide

5 James Maina Wanjiru v Republi c [2008] eK LR.

6 John Mugo Thiaka v Repub lic [2018] e KLR ; Wil son Kipchirchir Koskei v Rep ublic

[2019] eKLR para 9: the sole purpos e is to ensure that an accused at all st ages (with

emphasis) of the trial un derstands the case ag ainst them and avail the acc used person

sufcient time a nd facilities to enable t hem to prepare their d efence and challenge

the prosecution’s evidence at t he opportune ti me both in cross-examin ation and in

their defence.

7 Gilbert Kipr uto Korir v Republic [2017] eKLR; Wilson Kipchirchir Koskei v Re public

[2019] eKLR para 10: it can only be g uaranteed in circumsta nces where the accused

understands t he language used in the proceedings.

8 Joseph Ndungu Kagiri v Re public [2016] eK LR.

9 Article 25 of the Con stitution; Samuel Githua Ngari v Repub lic [2014] eKLR.

10 Wilson Kipchirchir Koske i v Republic [2019] eKLR para 11.

Language as a facilitator of the right to a

fair trial in Kenya 383

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