Catherine S. Namakula | University of the Free State (original) (raw)

When the Tongue Ties Fair Trial by Catherine S. Namakula

Routledge, 2022

This book examines the best language fair trial practices of the courts in arguably the most mult... more This book examines the best language fair trial practices of the courts in arguably the most multilingual region of the world. It contains an instructive list of standards and approaches to linguistic dynamics, which may be considered a language fair trial rights code.

By way of jurisprudential analysis and scrutiny of constitutional imperatives and examination of legislation among the respective jurisdictions from the Sahel region, to the Horn of Africa, and the Cape, this publication presents peculiar country-specific practices and common standards aiming towards the realisation of a fair trial in a multilingual context. The exceptionally multilingual nature of legal processes in Africa makes the standards in the region instructive in the progression towards a universal language fair trial rights code. The book reveals valuable lessons across jurisdictions, including those outside Africa, and suggests measures that may be taken to improve existing approaches.

It will be a valuable resource for academics, researchers, and policy-makers working in the areas of Law and Language, Legal Linguistics, Forensic Linguistics, Criminal Justice, and Comparative Law.

This article analyses the impact of language diversity on the right to fair hearing in Uganda. Th... more This article analyses the impact of language diversity on the right to fair hearing in Uganda. The jurisprudence reveals historical and systemic language complexities as well as structural deficiencies that inhibit the capacity of the courts to ensure trial fairness. An elucidation of the position of language fair trial rights in the minimum guarantees of fair trial presents an existing and priority framework for promoting, protecting and enforcing linguistic warranties. The language(s) of the people of Uganda is a key dynamic in the exercise of judicial power. It is the means through which the rights of accused persons are secured and exercised hence constituting the core foundation for justice. There is need to foster a professional standard of judicial inte1preting, allocate adequate resources to courts of law, facilitate modern and reliable mechanisms of making the court record, and tackle national language reform

South African Journal of Criminal Justice , 2020

The language in which a criminal case is conducted may significantly influence the verdict, and i... more The language in which a criminal case is conducted may significantly influence the verdict, and impact on the right to a fair trial if the accused does not properly understand the language of the court. The courts of Kenya, therefore, tolerate no compromise of the constitutional imperative that the person on trial must understand the language used in the proceedings. 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 scientific and legal development of local languages in Kenya.

The Human Rights Mandate of a Prosecutor of an International Criminal Trial, 2017

There is no trial that is worth human suffering. This is the secret behind the successful marriag... more There is no trial that is worth human suffering. This is the secret behind the successful marriage of human rights and international criminal law. Whenever there is a right, there must be a guard. The prosecutor, as the driving force of international criminal proceedings, must ensure that a case is investigated and proceeds to trial with respect and protection of the rights of persons involved, especially the accused. The autonomy and discretion accorded to the prosecution is functional and tactical in as far as it enables it to lead the course of justice. Following its exclusive control of investigations, the prosecution determines whether and when to commence a trial. It decides which material is to form part of the deliberations and may seek that an incompetent trial is suspended or strike a plea bargain. This article explores the components of the obscure human rights mandate of the prosecutor.

EAJPHR, 2018

Expert evidence is inherently ‘opinion’ and not ‘fact’ but is accorded subjective factual status ... more Expert evidence is inherently ‘opinion’ and not ‘fact’ but is accorded subjective factual status following judicial scrutiny. A fair verdict results from a fair rating of the evidence. Evaluating expert opinion is problematic because the courts are required to master the unknown and prevail upon it. The gap in knowledge that such evidence seeks to fill accords it apparent ‘privileged quality’ that poses a risk of disproportionate influence. Pursuant to statutory law, the courts of Uganda have regulated the role of expert opinion in proceedings while setting standards for expert opinion that may be admitted into evidence. Expert opinion is not evidence in itself. Evidence is judicially qualified proof or disproof. This article explains the criteria of 'expert evidence' that distinguish it from expert opinion. The jurisprudence of Ugandan courts is juxtaposed with the jurisprudence of other common law jurisdictions and observations of scholars, which offer a trajectory for the criminal justice system of the East African nation.

Inadequate formulation of human rights provisions is idle endowment that promotes idle entitlemen... more Inadequate formulation of human rights provisions is idle endowment that promotes idle entitlement and idle expectations. The law must accord structure to a legislated right. This piece distinguishes human rights as species of law from human rights rhetoric, by examining the internal structure of the former. It emphasises the significance of adequate formulation of human rights provisions while highlighting the elements that accord justiciability or legal force to an otherwise moral appeal. There is a subtle but significant distinction between human rights and human rights law. The rights discourse has to find premise within the legal discourse in order to profit from the long established compelling attributes of the law. The article also makes a case for severance of human rights norms from morality, and reveals how the state of entitlement is obliging in itself.

An expose of the peculiarities of criminal law and special regimes connected to the status of the... more An expose of the peculiarities of criminal law and special regimes connected to the status of the offender

An exploration of supra-statutory and other norms as repositories of criminal law principles

Functions of criminal law, purposes of punishment, and fundamental principles of criminal procedu... more Functions of criminal law, purposes of punishment, and fundamental principles of criminal procedure in Uganda

The court record is everything to the judicial process. Budgetary constraints and administrative ... more The court record is everything to the judicial process. Budgetary constraints and administrative challenges facing judicial services in the African countries studied here leave courts with inefficient modes of generating and maintaining full and reliable court records, hence defeating the ends of justice. Evidence is lost in the process of recording and during the preservation of court records through fires and malpractices. The court record is the basis for a fair trial. Any determination of a court is founded on the material in the record and such decision is placed and preserved on the face of the record. Fair trial guarantees of appeal and review are initiated by the court record. An appeal is a trial of the record. The competence of a court that cannot accurately record its proceedings and preserve the records to guarantee a fair trial is questionable. There is a need to facilitate a reliable mode of producing and maintaining the court record, towards a culture of fulfilling the right to a fair trial in Africa. This analysis focuses mainly on the experiences of the courts of Botswana and Uganda.

A discussion of the development of criminal law in Uganda can be divided into three epochs: the p... more A discussion of the development of criminal law in Uganda can be divided into three epochs: the pre-colonial era, the colonial period, and the age of independence and post-independence characterised by nation-building efforts. James Read rightly notes that the development of the penal system can be divided
into two major phases: first, the introduction of western apparatus that gradually replaced the practices of traditional societies, and second, the testing and modification of the new legal order to apply to conditions in Africa. As Uganda's legal history is long and complex, this chapter will explore only the most significant developments in criminal law, Criminal procedure, and punishment. These legal developments are
intertwined with events in Uganda's political and constitutional history.

The linguistic dynamics of a multilingual trial are significant determinants of fair hearing. By ... more The linguistic dynamics of a multilingual trial are significant determinants of fair hearing. By analysing the jurisprudence of the International Criminal Tribunals, on language and fair trial, this article attempts to situate language guarantees in the framework of the fundamental right to fair trial. If successful, this could raise the profile of the entire debate on language in international criminal trials, and hopefully instigate reform. Notably, the effective participation of a person in his/her trial is a function of language. From the information of charges, through the process of defence, examining witnesses and interpreting the evidence, language is a significant handmaid. Specifically, translation, as an indispensable component of a multilingual trial, enhances the relevance of linguistic forces to the realisation of a fair criminal trial.

Papers by Catherine S. Namakula

African Human Rights Law Journal, 2024

There are no rights without responsibilities in the African context. The reverse is equally true:... more There are no rights without responsibilities in the African context. The reverse is equally true: Responsibility is supported by rights. The African Union declaration of Africa’s diaspora as the sixth (demographic) region of the African continent triggers a critical discussion of the human rights obligations of the regional body to its diaspora. The African diaspora’s invited tactical intervention in the progression of the AU of necessity triggers the expansion of the human rights promotion and protection mandate of the AU to people of African heritage worldwide. Specific human rights guarantees to the diaspora facilitate its envisioned full participation in building the continent. The African diaspora can only make a substantial contribution if its rights are respected, protected and fulfilled in Africa and elsewhere. The 2012 African Diaspora Programme of Action rightly represents the evolving mandate and the nature of the commitment of the AU to embrace it. This mandate comprises the need to address the concerns of African immigrant communities, including recognition of the identity of a person of African descent on the African continent; confronting anti-black racism globally and promoting equality of all races; eradicating political and socio-economic marginalisation of diaspora communities; and advancing Africa’s agenda for reparations. These strategies have their nucleus in Africa-led and Africa-advanced approaches; the momentum commences from Africa to the world, with an evident reciprocal effect.

African Yearbook on International Humanitarian Law

Reparation is meant for effect: to make amends. The offer of EUR 1,100 million by the Federal Rep... more Reparation is meant for effect: to make amends. The offer of EUR 1,100 million by the Federal Republic of Germany to the Republic of Namibia, in an agreement of June 2021, for the genocide committed during the colonial-era occupation encourages debate about the categorisation and effect of the payment in the fields of human rights and international criminal justice. The genocide was characterised by the loss of the lives of thousands of people among the Nama and Herero of Namibia between 1904 and 1908. In a pioneering analysis, this article reiterates the principles of reparation in international criminal jurisprudence as a yardstick for this significant gesture of remorse. Reparations must meet both procedural and substantive requirements: they must be proportional, appropriate, prompt and adequate, and they must culminate from a process that ensures the meaningful participation of victims and judicious regard for all relevant factors and circumstances. Reparations for the sake of ...