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Why language must be understood by parties involved in a trial

THE use of a language which is well understood by the parties in court proceedings, especially to an accused person in criminal proceedings, is very essential.

Failure to observe such procedure as provided for under the law is a pertinent irregularity and renders the whole proceedings into a nullity, as happened in a murder trial involving two residents of Buk oba Region. Staff Writer FAUSTINE KAPAMA more reports…

It was announced recently that the government is in the process of translating all Tanzanian laws written in English into Kiswahili language to enable more people understand the laws of the land.

The Attorney General (AG), Dr Adelardus Kilangi, told the National Assembly in Dodoma that though the undertaking was facing some major challenges, notably poor funding and lack of enough and qualified translators to maintain the meaning without misleading, the process has begun with great precaution.

He was responding to a lawmaker’s question as to why the government continued to table in Parliament bills before the august House written in English, regardless of the fact that majority of Tanzanians did not understand English language.

Such Member of Parliament (MP) had explained that the continued enactment of laws in English does not take into consideration different levels of education for the lawmakers in the House and that the move defies President John Magufuli’s efforts to promote Kiswahili as the national language.

The AG was forced to give some clarifications on the matter following statements given by Deputy Minister of State in the Prime Minister’s Office, responsible for Policy, Parliamentary Affairs, Labour, Employment, Youth and the Disabled, Mr Antony Mavunde.

Mr Mavunde had said that Tanzanian Courts conduct court proceedings using both English and Kiswahili Languages depending on the decision of a judge or magistrate.

This is according to the nature of case and the parties involved, with exception of primary courts, where Kiswahili is the only language used.

The deputy minister was, however, quick to point out that with the exception at the primary court level, all judgments are written in English language because Tanzania was following the Common Law System, though the preceding judge or magistrate may deliver the same in Kiswahili.

In this debate, the lawmakers were pushing for the bills to be tabled in the language which is well known to them so that they could understand and properly follow the proceeding in the enactment process of the law during the parliamentary session, as what is required during trial proceedings in court.

Although it appears that official languages that are to be used in the Tanzania’s judicial system are English and Kiswahili, the requirement of section 211 (1) of the Criminal Procedure Act (CPA) must be observed when a judge or magistrate conduct court proceedings.

This is a holding by Justices Mbarouk Mbarouk, Rehema Mkuye and Ferdinand Wambali when determining an appeal by two persons, Dastan Makwaya and Jovith, alias Mtagaywa Jovin, who were sentenced to death by the High Court for killing a village mate, Oscar Martine.

Such provision reads, “Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open court in a language understood to him.”

This means that whenever it appears that an accused does not understand the language spoken during the proceedings of the case, such accused should be provided with an interpreter so as to enable him to understand the proceedings of his case.

For that matter, section 211 (1) of CPA allows any other language other than English and Kiswahili to be used to (or by) the accused person in court for him to follow the proceedings and the omission to comply with the requirement of the law renders the proceedings of the case null and void.

In the case at hand, the justices of the appeals court, which is the highest temple of justice in the country, nullified the whole proceedings as the High Court at some instances did not provide an interpreter to translate from Kiswahili language used during the hearing to that understood by accused.

They noted that the second accused, Jovith, alias Mtagaywa Jovin, was not conversant with Kiswahili language which was used during the entire proceedings.

Instead, the justices observed, the accused understood “Kinyambo” as per his mother tongue. Court records show that from the preliminary hearing stage until the time when he wanted to give his defence, no interpreter was provided to him and the proceedings of the case were conducted in Kiswahili language all the way.

The justices were of the view that such procedural irregularity was fatal even if the accused person was represented by an advocate. They revisited a case involving a Nigerian national, Joachim Ikechukwu Ike, who was tried by the High Court.

In that case, it was learned at an appellate stage that at the trial court though the accused was represented, but no interpreter was provided to him to interpret Kiswahili to the language he understood.

Consequently, the Court nullified the proceedings and judgment of the trial High Court and quashed the conviction and set aside the sentence.

The justices, therefore, found it prudent to emphasize the compliance with the requirement provided under section 211 (1) of the CPA even to those accused persons who are represented.

This is because there may be instances where even the advocate representing an accused person does not understand the language of his client.

“The question is how such an accused person will follow up his case and in such a case would there be a fair trial to him. We think no,” the justices said.

Taking into account the requirement stated in the provisions of section 211 (1) of the CPA together with the authorities from the decision of the Court, they were of the view that the effect of such anomaly renders the proceedings and judgment of the High Court a nullity.

The justices were, thus, constrained to invoke their revisional powers conferred upon them under section 4 (2) of the Appellate Jurisdiction Act to nullify the proceedings and judgment of the trial High Court, quash the conviction and set aside the sentence imposed on Makwaya and Jovin.

They said that as in the absence of an interpreter, Jovith, alias Mtagaywa Jovin might have been prejudiced. The justices, consequently, ordered a fresh hearing of the case expeditiously, considering the two accused persons have been in custody since 2015.

In the High Court at Karagwe, the two accused persons were arraigned for murder.

The prosecution alleged that on June 17, 2013 at Kagenyi Village within Kejerwa District in Kagera Region, the two accused persons murdered one Oscar Martine.

After a full trial was conducted, the two accused persons were found guilty, hence convicted and sentenced to suffer death by hanging. Dissatisfied, the two took the matter to the Court of Appeal for further adjudication.

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Author: FAUSTINE KAPAMA

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