Leiden Law Blog

The Babylonian confusion of tongues in South Africa’s criminal justice system

The Babylonian confusion of tongues in South Africa’s criminal justice system

“Does not the sun shine equally for the whole world? Do we not all equally breathe the air? Do you not feel shame at authorizing only three languages and condemning other people to blindness and deafness?” wrote Greek philosopher Constantine the Philosopher in the 9th century as a critique against church leaders who only wanted to have the Bible translated into three languages. His critique still applies, but nowadays it concerns the South African government that allows only English and Afrikaans to be used in criminal proceedings and court reports. This policy is still in place despite the fact that the South African Constitution acknowledges eleven different official languages. This blog focusses on South African’s social inequality in the criminal justice system due to low-quality language policies.

A rainbow with too many colours

Emeritus Archbishop Desmond Tutu is credited for labelling South Africa the ‘Rainbow Country’. Tutu’s term refers to South Africa’s diverse population, different languages and colourful flag. This diversity can also be found in the nation’s constitution, which respects cultural differences and eleven different languages. But in one field of governance - Criminal Justice - precisely this recognition of (eleven!) different languages constitutes a problem and leads to inequality: only English and Afrikaans are officially allowed in courts and criminal proceedings. This means that a large proportion of the population depends on an interpreter to get a grasp of what’s going on. The UN International Covenant on Civil and Political Rights, of which South Africa is a state party, makes clear that “Everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; […]” (article 14). The Covenant leaves no room for policy makers to act differently.

Court interpreters and inequality

But reality in South Africa is different to what is prescribed by the Covenant.
English and Afrikaans are the two languages spoken by the urban elite; these are the languages in which law is taught at universities and in which it is practised by lawyers and judges. 38% of  South Africans don’t live in cities and 76.9% of South Africans speaks another first language than English or Afrikaans – be it one of the official indigenous languages or a non-official mix. This leads to social inequality in access to courts and lawyers and, as a result, also to inequality in receiving justice – South Africa’s Ministry of Justice and Constitutional Development faces a problem and court interpreting could, in theory, solve it. South Africa has a tradition of state-funded court interpreting where full-time state officials translate all communications for the defence as well as for the public prosecutor and the judge. Unfortunately, as Lebese (2014) shows, these interpreters are often poorly trained, lack detailed case instructions, and are unequally distributed across the country. This raises questions: the poor quality of South African court interpreters has been discussed by Hlophe (2004) and Moeketsi & Wallmach (2005) and policies to improve are being implemented, such as (advanced) courses in court interpreting. But the role of a court interpreter is a more general topic of scholarly discussion. Therefore court interpreters, though there are success stories, are not a solution for the deeply rooted language problem In South Africa – resulting in the unsolved inequality, even after the abolishment of Apartheid.

Language education is the solution

In the long run education offers the solution. Better language education increases the accessibility of the South African judicial apparatus: if more South Africans could speak English or Afrikaans, they could better understand what their trial is about and even participate, reducing the need for the (doubtful) services of a court interpreter. According to the most recent available census figures (2011) approximately 20% of the population speaks English or Afrikaans as a first language. When studied in detail, it appears that this 20% mainly lives in urban areas. In the rural provinces the indigenous languages dominate. In these same rural provinces, court interpreters are more scarce than in urban areas. 7.1% of South Africa’s population, in addition, is illiterate and can’t fill in (census) questionnaires or court documents. Better language education is, as we see, needed! In 2011 Van der Berg and colleagues published an extensive report on improving the quality of education in South Africa, including a paragraph concerning language difficulties. In 2012 there were still complaints about the level of language education. Until now, no significant policy improvements are mentioned on the Ministry of Education’s website. In the short term, I would bluntly propose the following improvements: clearer case instructions for interpreters and an alternative judge-appointment system based on the languages the judge speaks to enhance cultural understanding of the different trial parties.

The problem remains unsolved

What does all this tell us? Despite the promising hybrid legal system and courts South Africa has and the good quality it has compared to its neighbouring countries, justice deficits can be identified. Language policy remains a difficult issue in South Africa, especially in judicial spheres. In 2010 the South African High Court ruled that “the country had eleven official languages, which meant that officials in the government could be addressed in any of those languages”. This also applies to the courts, as is written down in the Constitution. This ruling initiated a government response to better regulate the use of the official languages. Soon after a counter-proposal was issued by PANSALB, an interest group for the development of all South African languages, because the government’s proposal lacked an efficient solution to the problem. The status quo: a new plan has been developed to improve legal aid, but without (!!!) mentioning the language problem. So far, nothing has changed yet, language-wise. And in addition, new problems are surfacing. Social inequality in the South African criminal justice system is and remains a daily concern. As far as I’m concerned, South Africans should first learn to communicate with each other before they adjudicate each other.

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