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 criminal case is conducted may signicantly

inuence the verdict, and impact on the right to a fair trial if the accused

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

therefore, tolerate no compromise of the constitutional imperative that the

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

paper examines the language-based requirements of fair trial as revealed

by the jurisprudence on core trial processes such as judicial interpreting,

plea taking, and confessions. A competent court safeguards a fair trial

by ensuring that trial participants express themselves in the language(s)

of their ability. This may require the provision of effective interpretative

assistance. There is need to professionalise judicial interpreting and to

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

1 Introduction

Kenya is a multilingual society with approximately 42 spoken

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

least three languages.2 The Constitution requires that a trial be

conducted in a language that the accused person understands.3 This

is a fundamental requirement for a fair trial. Language is a component

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

entrenching language guara ntees, the constitutional agenda is to ensure

a fair trial at all times by eliminating false convictions on account

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

Rights and Criminal Justice, Global Humanistic 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, Kikuria, Kimeru, Kipokomo, Kipsigis, Kisomali, Kiswahili, Luhya, Maa,

Mijikenda, Nandi, Orma, Pokot, Taita, Turkana, and Kenya sign language, 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: The High Court and Court of Appeal of Kenya 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 inability of the accused to understand the language(s) used

whenconducting their case and to facilitate their full participation

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

that the accused understands enables them to comprehend the nature

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

their defence if need be.6 Participation in a trial 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 trial 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 trial.7

The right to a fair trial is one of the 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 translators

and interpreters to bridge the linguistic and communicative gaps

in multilingual proceedings. The issue is whether such interpreting

interventions meet the standards required for justice to be achieved.

Translation and interpreting raise both substantive and procedural

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

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

examines the fair tr ial principles and practices of interpretative support

to criminal adjudication. Part three discusses the effect of language on

legal representation, and the fourth part investigates the key language-

based processes of criminal procedure that inuence trial 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 English and Kiswahili as 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 Republic [2018] eKLR; Wilson Kipchirchir Koskei v Republic

[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 and facilities to enable them to prepare their defence and challenge

the prosecution’s evidence at the 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.

10Wilson 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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