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Publicly Available Published by De Gruyter Mouton May 19, 2016

Communication of an interpreter and fair trial under Nigerian criminal justice system

C. Ogwezzy Michael EMAIL logo

Abstract

It is established that certain constitutional safeguards are enshrined in the Constitution of the Federal Republic of Nigeria, 1999 to ensure the fair trial of accused persons in criminal matters. A breach of any of the constitutional safeguards will vitiate a trial and may consequently nullify the entire proceeding depending on the degree of breach. It is argued in this paper that, English language is the official language of all the courts in Nigeria and if the language is not understood by the accused person standing trial in a criminal matter, an interpreter should be provided, failure upon that, their right to a fair trial would have been breached. Though the failure to provide an interpreter has always been treated as a matter of procedure and a conviction would not be disturbed on appeal except it can be shown that the failure to provide an interpreter led to miscarriage of justice. The author therefore intends of examine the “Communication of an interpreter and fair trial under Nigerian Criminal Justice System”. In this academic inquiry, a doctrinal approached involving the review of relevant scholarly literatures is adopted.

1 Introduction

According to Waterhouse, “language, law and crime are connected in basic ways: law exists through words and is made possible by language, which is a basic human characteristic; crime is part of the human condition, and communication constitutes a vital part of the criminal process, which is made up of language events from beginning to end. Some of these events include encounters with the police, testimony at trial, legislation making specific speech acts illegal and so on” (Waterhouse 2009: 42). [1] She further posits that, “the language and behaviour used by professionals within the criminal justice system is not always easy to understand for the average layperson, partly because such people have spent their entire working lives “immersed in the complexities of the law” (Mikkelson 2000: 106) but also because the language of law is a product of tradition and uses grammatical features and archaic expressions that are far removed from the English of everyday life. Lawyers and judges usually spend large amounts of time engaged in linguistic analysis like interpreting legislation, and thus tend to be excellent language users”. Waterhouse is of the view that linguistic and socio-cultural barriers are even more difficult to penetrate for those with a different language and culture from that of the criminal justice system. Goodrich considers that legal doctrine takes an “explicitly exclusory stance … toward all other linguistic communities and usages” (Goodrich 1987: 435–436). The Supreme Court in the US has described as “meaningless”, [2] “incomprehensible ritual”, [3] “invective against an insensible object”, [4] “guaranteed confusion” [5] and “Kafka-like” [6] the application of criminal justice to those without fluency in English, yet interpreters are increasingly needed in the courtroom; multiculturalism, modern communication, and international borders increasingly being crossed by criminals, prohibited substances and people…, combine to create a space where crimes can be committed and justice systems need to react in an increasing range of languages” (Storey 1998: 5). In the light of the foregoing exposition by Waterhouse, this article takes a look at the communication by an interpreter in the context of fair trials under Nigerian criminal justice system.

2 Interpreter and fair trials under a criminal justice system

It is a trite law that where an accused person does not understand the official language of the Court, [7] an interpreter must be provided for him without any expense. [8] The interpreter must interpret correctly to the accused person anything said in the language he does not understand. Simultaneously, there should be adequate interpretation to the Court anything said by the accused person. The value and importance of interpretation of proceedings to an accused person are not in doubt. Indeed, interpretation is the only means of ensuring proper understanding by and participation of an accused person in the trial proceedings where the proceedings are being conducted in the language he does not understand and enabling justice (Akpambang 2007: 298–299).

Ruth Morris, stated that “historically, overall attitudes to court interpreting vary over time, certain issues are perennial: in particular, an individual’s right to interpretation, deciding whether a need for interpretation exists, and interpreter competence. She argued and spoke in parables that “across the centuries and the oceans, the voices speak to us”. They are seldom the voices of those who needed a competent interpreter when their liberty, property and happiness were at stake in legal proceedings involving them in one way or the other for by definition, these are the voiceless ones. Rather, they are mainly the voices of those members of the judicial system who were presumably, according to their own lights, doing their best to administer justice at the time” She opined that “justice must not only be seen to be done – it must be heard, too”. And ever since the first individuals were brought to court to face charges in a language which they did not speak or understand properly, if at all, there has been a need for justice to be heard to be done in not just one, but two or more languages, which sometimes means resorting to the services of interpreters. Or so the enlightened members of the human race maintain. The degree to which this need has been satisfactorily addressed in different countries over the centuries in specific cases has varied widely, as evidenced by the law reports (Morris 1999: 1–2).

Safford in his article titled “No Comprendo: The Non-English-Speaking Defendant and the Criminal Process” stated that, the non-English-speaking defendant in a criminal proceeding poses increasing problems for the administration of criminal justice. Minorities for whom English is not the principal language or who speak such unusual dialects of English as to cloud understanding and communication make up a discouraging proportion of offenders’. [9] In areas of large ethnic enclaves where English is not the dominant tongue, officials have estimated that between 30 and 40 % of criminal defendants require the aid of an interpreter fully to understand the proceedings against them. [10] The writer concluded that while recognizing that failure to provide an interpreter might violate a defendant’s constitutional rights to a jury trial or confrontation of witnesses, the Illinois appellate court continues to give such deference to the trial court’s discretion in cases where the defendant speaks little English that appeal is discouraging (Safford 1977: 1, 29).

For Evert-Jan van der Vlis, an important aspect of legal protection is the right to have the assistance of an interpreter and translator, for suspects or defendants who do not speak the language used in court. [11] As a result of the implementation of the EU directives in criminal matters concerning judicial co-operation in criminal matters, because more and more people get involved in criminal proceedings in Member States of which they do not or insufficiently speak the language in which the proceedings are conducted. That weakens their legal position. He posits that in criminal proceedings, language is the communication tool par excellence. Special measures are required if any party involved in proceedings has no or insufficient command of the language in which the proceedings are conducted. In his opinion, if a suspect wants to be able to effectively exercise his rights, he must in any case be able to obtain information on his legal position in a language that he understands. That requires the assistance of an interpreter or translator. Interpreters and translators therefore have a crucial role in safeguarding a fair trial. Decisions in criminal cases are usually taken on the basis of the work done by an interpreter or translator. If the proper performance of the interpreter or translator has not been sufficiently guaranteed, this may have extremely serious implications, and may even result in the conviction of an innocent person (Evert-Jan 2010: 26–28).

According to Aremu, “it is the cardinal principle of criminal justice that an accused person should have a right to an interpreter. ‘An accused person is entitled to have without payment, the assistance of an interpreter; if he cannot understand the language and terms used at the trial of the offence; Criminal trials in Nigeria are conducted in English terms but because there exists a large illiterate population, the services of an interpreter are frequently required or sought for to explain the language in a lucid manner to an accused person” (Aremu 2011: 48–49). To buttress the position maintained by Aremu above, Le Cheng et al., stated that legal terms on their own are conventionally considered to have self-referential, self-closed meaning independent of context a legal term only acquires its meaning within a given context. The ability of a person to understand the context in which a legal term is used depends on his ability to understand the language in which such terms were derived from. In the absence of such understanding, an interpreter is obviously needed. Furthermore in legal discourse, the importance of interpretative function cannot be undermined. In a special language or sublanguage generally known as the language of the law, the Subdivisions of the language of the law in each legal system, jurisdiction, or area of the law has its own language or sublanguage peculiarity which requires the function of an expert interpreter especially when all the parties involved are not versatile in the language of the court in case of legal dispute (Cheng et al. 2014: 167, 169).

Namakula opined that, a trial is a communicative process, language forms its integrity and outcomes and it’s also the means of realising all the rights of the accused. In fact, language is the core foundation for justice. It is the means through which the rights of the accused are secured and exercised. Linguistic complexities such as misunderstandings, translation errors and cultural distance among participants in criminal trials affect courtroom communication, the presentation and the perception of the evidence, hence jeopardizing the foundations of a fair trial. She concluded that language fair trial rights are priority rights situated in the minimum guarantees of fair criminal trial; the obligation of the court to ensure fair trial or accord the accused person a fair hearing also includes the duty to ensure they can understand and be understood (Namakula 2013: 6, 142). In a paper review by Ludmila Stern, She stated that the tension between the accused person’s language rights and translation-related delays arguments of Namakula, impinges on their right to a speedy, fair trial. Attempts to save resources and time through partial translations disadvantage the accused’s case differences between original and translated testimonies cause contentions, and judges struggle to follow and memorise interpreted proceedings, leading to delays in delivering judicial decisions (Stern 2014: 390).

In practice, there is an intuitive understanding that the interpreter exercises considerable power in legal setting. The presence of an interpreter affects the dynamics both inside and outside the court room and interpreters are frequently co-opted, inadvertently or deliberately by lawyers and other into furthering their own objectives in a legal trial. Competent interpreters are essential if a legal system is to serve the needs of a multicultural, multi-lingual society. Competent lawyers need to understand the issues of culture and language and how to work effectively with interpreters. In criminal cases, legislation granting access to interpreter in criminal investigation and court proceedings, exist … in most Australian jurisdictions. In civil cases, some states however recognised a more broadly based rights, section 14(1) of the Evidence Act 1929 (SA) for example provides that where: (a) the native language of a witness who is to give oral evidence in any proceeding is not English and; (b) the witness is not reasonably fluent in English, the witness is entitled to give evidence through an interpreter. Here, it could be observed that the right to an interpreter extends to any witness in a range of proceedings. (Laster and Taylor 1994: XVI, 81–82).

According to Kremens, the right to an interpreter ensures that the accused who is not familiar with any of the official languages of a tribunal will be able to understand the proceedings and properly defend himself. This right, which seems to be of little importance, involves the more general problem of languages (May and Wierda 2002: 65–59). This right is considered as crucial as the requirement to be informed of the charges. [12] (Kremens 2011. 45), (See Calvo-Goller 2006: 168).

Amy Pearson holds the view that anyone involved in a criminal case without English proficiency or with a disability impairing communications is generally permitted to use an interpreter. Interpreters translate spoken word from one language to another. Using interpreters helps ensure fairness for all involved in criminal court cases. The judge evaluates and determines the need for interpretation assistance for a defendant or other participant in a criminal court case. The judge then selects appropriately licensed and trained interpreters based on discretion. Even if defendants or others involved with criminal court cases are capable of responding to English, a judge might call for an interpreter for non-native speakers who do not process the language as quickly and proficiently as native speakers. The potentially stressful environment of a criminal courtroom might also interfere with a person’s ability to understand what is being said, making interpretation necessary. Attorneys may not serve as their own clients’ interpreters during court proceedings, even if the client and attorney communicate clearly with each other in a different language. Only court-appointed interpreters are allowed to interpret in a courtroom. Witnesses or other people not proficient in the English language might misunderstand a question or testify incorrectly without interpretation assistance. Likewise, hearing impaired individuals might struggle to understand conversations or answer questions incorrectly without sign language interpretation. [13]

At the international plane, the right to a fair trial is a norm of international human rights law which is designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. It is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The fairness of this right cannot be guaranteed if there right to an adequate interpreter is not inclusive where the suspect is not conversant with the language of the court. In express provision of Article 14(3)(f) of the ICCPR, it was stated that “in the determination of any criminal charge against him/her everyone is entitled “To have the free assistance of an interpreter if he cannot understand or speak the language used in court”. [14] The main issue raised by this provision is what interpretation should be given to the words “used in court.” While the phrase could obviously be said to refer to oral proceedings, the right to translation of written documents is not expressly provided for. Both in scholarly writings and in the practice of human rights bodies, however, the view has consistently been held that the right to an interpreter includes the translation of all the relevant documents. [15] The right to an interpreter may also be claimed by a suspect or an accused being interrogated by the police or by an investigating judge in the pretrial phase. The right to an interpreter applies equally to nationals and aliens, but cannot be demanded by a person who is sufficiently proficient in the language of the court. When granted, the right to the assistance of an interpreter is free and can in no way be restricted by seeking payment from the defendant upon conviction (Lawyers Committee for Human Rights 2000: 1, 19). [16]

In the regional context, Article 8(2)(a) of the American Convention on Human Rights 1969 [17] provides that, “the right of the accused person to be assisted without charge by translator or interpreter, if he does not understand or does not speak the language of the tribunal or court”. While the right to interpreter is mentioned in the International Human Rights Instruments, the right to translation is provided for only in the American Convention on Human Rights, 1969. In practice however, the right to translation has been found to be inherent in the right to an interpreter.

In similar situation, Article 6 (3)(e) of the European Convention on Human Rights and Fundamental Freedoms of 1950 [18] provides that the accused is entitled to free assistance of an interpreter if he/she cannot understand or speak the language used in court. The right to an interpreter is understood to extend to deaf people where the normal method of communication is for instance by sign language. It should be noted that, in contrast to the right to free legal assistance under Article 6 (3)(c) which is subject to a means test, the right to free interpretation applies to everyone charged with a criminal offence. [19] In the case of Oztürk v. the Federal Republic of Germany, [20] the issue of whether the act in question was or was not a criminal charge arose because the German authorities wanted to make the applicant pay for his interpreter. The Court held in Luedicke, Belkacem and Koç v. the Federal Republic of Germany[21] that the provision absolutely prohibits a defendant being ordered to pay the costs of an interpreter since it provides “neither a conditional remission, nor a temporary exemption, nor a suspension, but a once and for all exemption or exoneration”. The Court further stated that this principle covered “those documents or statements in the proceedings instituted against him which is necessary for him to understand in order to have the benefit of a fair trial”. In Brozicek v. Italy[22] a German national was charged in Italy. The Court held, in relation to Article 6 (3)(a), that documents constituting an accusation should be provided in German “unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand … the purport of the letter notifying him of the charges brought against him”. However, in Kamasinski v. Austria[23] the Court adopted a more restrictive approach and held that although Article 6 (3)(e) applied to documentary material disclosed before trial, it did not require written translations of all such documentation. The Court noted here, however, that the defence counsel was competent in the applicant’s mother tongue. The Court held that the assistance “should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events”. The competent authorities’ obligation is not limited to the mere appointment of an interpreter but may also extend to exercising a degree of control over the adequacy of the interpretation, if they are put on notice of the need to do so. Two recent contrasting decisions are of interest. In Lagerblom v. Sweden[24] the Court found no violation as the Finnish applicant had been resident in Sweden for some years and the Court was satisfied that he could communicate with his Swedish lawyer sufficiently to participate in the proceedings and he did have the possibility to use Finnish for many parts of the proceedings. In contrast in Cuscani v. the United Kingdom[25] the applicant, an Italian also with some years of residence in the United Kingdom was denied official court interpretation and had to rely on his brother’s “untested language skills”. Importantly the Court noted that once it had been established that interpretation was required it was unlikely that informal and unprofessional assistance would be sufficient. One might speculate that, as with the right to legal representation, the quality of interpretation provided must ensure that the individual’s ability to understand and follow the case against him practically and effectively is assured and does not remain theoretical and illusory (Mole and Harby 2006: 68–69).

3 Constitutional safeguard on the right of an accused to an interpreter in Nigerian legal setting

The right to be provided with an interpreter is enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 36(6)(e) provides that, “every person who is charged with a criminal offence shall be entitled to have, without payments, the assistance of an interpreter if he cannot understand the language used at the trial of the offence” (Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act, 2011). Where an accused person who is arraigned before a court cannot understand the language of the Court which is English language, it is the duty of the court to provide him with an adequate and competent interpreter who will explain every step taken and interpret everything said at his trial to him in the language that he understands which is the indigenous language of the accused person. Failure to comply with this requirement will nullify the entire trial of the accused person.

The above section should also be read together with Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) [26] provides that: “every person who is charged with a criminal offence shall [27] be entitled to: (a) “be informed promptly in the language that he understands and in details of the nature of the offence”. It is the practice procedure that when a person is accused of a criminal offence and charged before any Court with requisite jurisdiction to hear the matter, he has an unfettered right to have a full knowledge in the language he understands of why he is being charged. In this regard, the constitution mandates the Court before which he is charged to explain in material details the elements of the offence with which he is charged and in the language the accused person understands [28] if the accused person does not understand English language. Also, the word promptly must be construed to mean at the commencement of the trial that is, upon his arraignment before a court of law.

Again, Section 35(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that “any person who is arrested or detained shall be informed in writing of the offence within twenty-four hours (and in a language that he understands) of the fact and ground for his arrest or detention”. These are essential ingredients of criminal justice administration which are precedent to fair trial in Nigerian legal setting. Section 36(6)(a) of the Constitution guarantees the right of the accused to be informed promptly in the language that he or she understands and in detail of the nature of the offence alleged to have been committed. Under the Criminal Justice system in Nigeria, the twin policy of natural justice must prevail for a trial to be free and fair and for the judgment to be confirmed as being in compliance with due process as expressed under the rule of natural justice. So while Section 35(3) of the Constitution deals with the pre-arraignment right to information of crime alleged to have been committed, Section 36(6)(a) relates to the accused person’s right of information of crime upon his arraignment in a language that he understands. While the former deals with communication in writing the later provision proceeds or deals with verbal communication to a greater extent.

The issues enunciated under this sub-heading form the main trust of this paper. It is the argument of the author that the right of an accused person to a fair trial in Nigerian legal setting will be in jeopardy if he is not provided with an interpreter where he does not understand the official language of the court or where he has hearing impairment, a sign language interpreter has to be provided to enable him follow the proceedings in logical manner in other to avail himself the right to fair hearing under the principles of rule of law which is applicable in all democratic societies. Furthermore, being able to understand the language used in a legal proceeding is very instrumental in the success of an accused person charged with criminal offence in a legal setting. The inability to understand the language of the court could mar the chances of a litigant in criminal proceedings. This is because he will not be able to respond favourable to issues and questions put forward to him by the jury or prosecuting counsel in a case. Therefore using interpreters will ensure fair trial for everyone who is involved in criminal cases where the accused lacks proficiency in the language used in the court room.

4 Case law on the right of an accused person to an interpreter in Nigeria

Nigerian Courts over the decades have made judicial pronouncements on the right of an accused person to an interpreter. These pronouncements were made to give effect to the provisions of section 36(6)(e) of the Constitution of Nigeria 1979 and 1999 (as amended) respectively which were discussed above. Some of the cases were the courts have emphasized the right of the accused person to the right of an interpreter will be discussed hereunder.

In Umaru v. Federal Republic of Nigeria, [29] it was stated that, inherent in the requirement of a valid arraignment is Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which makes it mandatory in all criminal trials that an accused person who is standing trial for an offence and do not understand the language of the court shall be entitled to have, without payment, the assistance of an interpreter. Fair trial is not limited to ensuring compliance with the rules of natural justice, the twin pillars of which are audi alteram partem – meaning the other party must be heard and nemo judex in causa sua – meaning “never be a judge in your own case”. Fair hearing in our context also entails compliance with the whole provisions of Section 36 of the 1999 constitution.

The right to an interpreter is not applicable in every case; it only becomes applicable where the accused person cannot understand the language used at the trial of the offence. Hence it is the obligation of the accused person or his counsel to inform the court promptly of his inability to understand English language for which his trial is being conducted. Where he or his counsel fails in this duty, he cannot be heard on appeal that he was not given a fair trial because he was provided with a sworn interpreter. This point of law was buttressed in the case of Onyia v. State, [30] where Niki Tobi J.S.C said “It is a common spontaneous human reaction in Court for an accused person who does not understand the language used to say so openly in Court or protest that he needs interpretation to the language that he understands”. It is the duty of the accused person to inform the Court that he does not understand the language at the trial. Unless it appears clearly from record that the accused person does not understand the language used and that his request for an interpreter was refused, the presumption in favour of regularity applies and an appeal against the proceedings of the trial Court cannot be sustained on this ground. [31] To clarify this point of law, the decision in Anthony Nwachukwu v. State, [32] could be relied upon. In this case, the appellant and some of the witnesses testified in Igbo language at his trial. The appellant was represented by a counsel. Neither the appellant nor his Counsel complained about the witnesses who testified in English language which led to the presumption that he understands English language. He was convicted. His appeal to the Court of Appeal was dismissed. On further appeal to the Supreme Court, he contended that his right to fair trial was breached in that he was not provided with a sworn interpreter. The Supreme Court while dismissing his appeal again held that having failed in his duty to inform the Court that he needed an interpreter; he could not be heard to complain.

5 English language as the official language of Nigerian courts

The lingua franca of Nigerian Superior Courts of record is English language, [33] hence in the case of Ogunye v. State, [34] Iguh, J.S.C stated that, “I cannot over-emphasis the fact and it is a matter of common knowledge and notoriety of which judicial notice, ought now, to be taken, that the lingua franca in this country is English and that this is the official language employed in all proceedings before the superior courts of records throughout Nigeria”. In Damina v. the State, [35] it was stated that, “all communications between the Courts of(sic) the one part and counsel or litigants, of the other part, are always in the official language of the court, namely English. It is only in cases where litigants do not understand English that the Courts communicate with them in the English Language but through the medium of a Registrar of Court or an Interpreter who understands the language of both the litigant and as well as English. Where an illiterate litigant, accused person or witness speaks to the Court in vernacular through a Court interpreter, the proceedings are always conducted in English for the benefit of the presiding judge, all learned counsel present, the court officials and the general public in court …”. Hence, there is the necessity to read over the charge to the accused person in his language where he/she does not understand English, but brought before the Court in a criminal trial. The charge must not only be read over but also explained to the accused person in a language which he fully understands before he is called to plead thereto (guilty or not). Failure to do this will amount to a most flagrant breach of the mandatory provision of both section 215 of the Criminal Procedure Act and Section 33(6)(a) of then Constitution of the Federal Republic of Nigeria, 1979 which would render the arraignment and any subsequent trial to no effect. The need for the interpretation of a charge to an accused person will not arise if the accused person understands the language of the court which is English. [36]

In Ojengbede v. Esan, [37] it was argued that where the official language of the court is English, what is the duty of a party seeking to rely on a document not written in English language, it was answered that the official language of Superior Courts of record in Nigeria is English. Therefore, if documents written in any other language are to be tendered and properly used in evidence, they must be translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court. A Court cannot on its own engage in the translation or interpretation of a document written in a language other than English since it is precluded from performing the role of a witness and the arbiter at the same time in the same proceeding. In the instant case, the trial judge is a Yoruba speaking person and must have made use of his private and personal knowledge of Yoruba language to translate the minutes of meeting in which the issue of partition was discussed by the respondents’ family. This exercise, however, he was not entitled in law to engage in. The said minutes of meeting was not written in the language of the Court and there being no translation of it into English in the course of the proceedings, the trial Court was in error to have taken any notice of it in its judgment. [38]

6 Practice procedure on pre-trial right of an accused person to information

As a procedure, the breach of the pre-trial right information communicated in writing will not affect the trial of the accused person but a breach of the accused right to oral information of the crime with which he is charged in the language that he understands upon his arraignment may nullify the trial (Hambali 2012: 400–405). The issue whether a Court must record the fact that the charge was read over to the accused person and to the satisfaction of the Court was dealt with in the case of Ogunye v. State. [39] The position of the Court is that “although it is a good practice, and indeed desirable, that a trial Court specially records that a charge was read over and explained to an accused person, to his satisfaction in a language that he understands before he plead thereto. It is not the law that unless the Court so expressly records, such an arraignment automatically becomes invalid and therefore null and void. The law which enjoins a trial Court to be satisfied with the explanation of the charge to the accused person before he pleads thereto is subjective and not objective. In this case there is nothing on the record to suggest that the trial Court was not satisfied with the explanation of the charge to the appellants. In the case of Uwaekweghinya v.State[40] the Supreme Court per Dahiru Musdapher JSC said thus: now by the provision of Section 36(6)(e) of the 1999 constitution, the law requires that there shall be adequate interpretation to the accused person of anything said in a language which he does not understand: the formal Federal Supreme Court in the case of Queen v. Equabor[41] stated that if the accused does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter has led to a miscarriage of justice and that if the accused is represented by counsel the objection must be taken at the trial in the first instance and not on appeal. In the case of Ajayi v. Zaria N.A. [42] The court allowing the appeal held that an appellant discharges the burden of showing that a failure of justice has taken place for want of interpretation or adequate interpretation by showing ‘that a reasonable person who was present at the trial might have supposed that the interpretation was defective to such an extent as to deny the appellant a fair trial’. When the presence of an interpreter is recorded at the beginning of a trial, it is not necessary to continue to record at every stage of the proceedings that he interpreted when the whole trial was conducted on the same day.

In Bayo Dada v. Federal Republic of Nigeria, [43] it was stated that the procedure may however be dispensed with where the accused so wishes and trial judge is of the opinion that the accused does not require any interpretation of the proceedings. The right of the accused to an interpreter cannot however be raised on appeal unless he claimed the right during his trial and was denied it.

The law in Nigeria requires that the communication of an interpreter in criminal trial can only be valid and judgment emanating there from be said, to be fair, if the interpreter was sworn on oath or solemnly affirmed and a note of this must be made in the records of the Court. However, once a Court reflects this note, it needs not reflect in the record that the interpreter was present at every sitting of the Court in the case. [44] With the amendment of section 242 of the Criminal Procedure Code by the Law of Northern Nigeria No.12 of 1964, Criminal Procedure Code has been complied with. Section 242 makes it mandatory for the record of any criminal proceeding for which an interpreter has been used, to state the name of the interpreter and the fact that he has been bound in accordance with the provision of subsection (1) to state the true interpretation of the evidence. [45] This provision states that “when the service of an interpreter is required by any Court or Justice of the Peace for the interpretation of any evidence or statement, he shall be bound by oath or solemn affirmation to state the true interpretation of the evidence or statement”. Subsection (2) provides that whenever the services of an interpreter is required, the Court or Justice of the Peace shall include in the record or any evidence or statement so interpreted a certificate that the evidence or statement was interpreted by an interpreter duly sworn in accordance with the provision of subsection 1. [46]

7 Qualification and competency of an interpreter

Interpretation is the oral conversion of information from one language to another. It is related but different from translation which involves converting a written document from one language to another. [47] There is no legal provision under Nigerian laws as to the measure of the adequacy of an interpreter who will communicate the proceeding to the accused person in the language that he will understand and to the Court in English Language on the other hand. It is implied that the interpreter must be versatile in the indigenous language of the accused person and English language which is the language of the Court in Nigeria. It is said, that the interpreter must be competent. He must be proficient in the language understood by the accused person as well as the language he is engaged to interpret to the accused person. There must not be an unfair or inadequate presentation of facts (Hambali 2012). In Ajayi v. Zaria Native Authority, the proceeding was in Hausa language and was interpreted by five different interpreters at successive stages of the proceedings to the appellants who were Yorubas and who were not proficient in English language. Two interpreted into English and one into Yoruba, it did not appear how they be qualified to be called on, to interpret or who they were, except that one was a school boy who spoke English but not Yoruba. When the appellants appealed against their conviction to the High Court, it was found that in at least two instances the ability of the interpreter to interpret satisfactorily might be questioned but however, held that the whole proceedings has been interpreted correctly.

On appeal to the defunct Federal Supreme Court, it was held inter alia that on the High Court’s findings, the ability of the interpreters to interpret satisfactorily might in at least two instances be questioned, the appellant had discharged the burden of showing that a failure of justice has been occasioned. [48]

In Anthony Nwachukwu v. the State, [49] in a judgment delivered by Ibrahim Tanko Muhammad. JSC, citing the provisions of section 33(6) (a) and (e) of the 1999 Constitution [50] and section 215 of the Criminal Procedure Law (CPL) of Imo State, he stated that the learned counsel for the appellant submitted in the main; that the appellant did not understand the English Language which was the language of the trial court, and that there was an abiding need to ensure strict compliance with the above provisions in order to ensure fair trial. He contended that there was failure by the trial Court to read the charge and explain to the appellant in Ibo language which he understood. That failure, as argued by the learned counsel, vitiated the entire proceedings. [51]

8 Need for professional standards to be set for both the interpreters and the translators in Nigeria

It is important to state that there is need for professional standards to be set for both the interpreters and the translators of court proceedings in order to achieve fairness in legal matters addressed by courts. Translation of documents is essential where language barriers exist and it is a translator who is responsible for translating the documents. In Nigerian judicial setting, there is no remarkable distinction between the term translator and interpreter. To be a translator or interpreter means having the ability to understand two languages in a simultaneous manner. In contemporary legal setting, translators work using dictionaries, internet sources and translation memories. By contrast, interpreters work with and through the spoken language … to be an interpreter, it is not enough to speak two languages well. A trained interpreter must be prepared to work in particular fields, such as in the court-rooms by developing a specialised legal …vocabulary (Bacik 2007: 110–111). Legal or Court interpretation is particularly highly specialised. The court interpreter has to be able to deal with complex legal language, ambiguous questions, slang and references and poor interpretation can obviously affect a Court’s perception of an accused person or defendant. An interpreter should, among other things, be chosen for his/her command of the language in which the proceedings will be conducted. When such a person cannot be found the observer should, ideally, be provided with an interpreter who will sit next to him/her in the court room and give a simultaneous translation sotto voce. The selection of an interpreter is important because an observer’s impartiality could be discredited if the interpreter is perceived as being affiliated with the parties or participants in the proceedings. An interpreter should, ideally, have the requisite legal knowledge, be trustworthy and independent (ITIA 2002: 2; Lesnie 2000). [52] It is improper as assumed under the Nigerian system, that there is no special qualification for assessing who is an interpreter and all that he needs is to be versatile in the indigenous language of the accused person and in English language which is the official language of the Court. The reason for this argument is that, research from other jurisdictions like Ireland shows that the error rate of untrained ‘interpreters’ … is sufficiently high as to make their use more dangerous in some circumstances than no interpreter at all; this is because it lends a false sense of security to both provider and client that accurate communication is actually taking place. [53]

The major problem regarding the service of an interpreter in Nigeria Courts remains the lack of any policy or central regulation of interpreting services. Nigeria is a multi-ethnic and multilingual nation with over 250 languages with four major ones: Hausa, Fulani, Yoruba and Ibo. [54] While the Courts service or legal system does not have agencies, that can access interpreters in hundreds of languages and dialects, there is no provision in place where interpreters can be trained and tested in the skill of interpreting Nigerian languages (Bacik 2007: 119). There is no government policy on interpreting skills or guidelines for interpreters; most interpreters have no special training; and there is no testing or independent quality control measures for interpreters (Bacik 2007).

It is important to state that the responsibility of the authorities is not limited to the appointment of an interpreter, but that it also includes the necessity of ensuring that that the interpreter is competent and that his interpretation is of sufficient quality. The reason for this is to guarantee that the right to the free assistance of an interpreter under the constitution of Nigeria will be practical and effective. This is a logical consequence, as the right to the assistance of an interpreter would otherwise hardly be a safeguard (Evert-Jan 2010: 29).

9 Conclusions

This article revealed the importance of involving an interpreter in a criminal matter where the language of communication is strange the accused person. In Nigeria, where someone is suspected of a criminal offence and is prosecuted, the right to the assistance of an interpreter or translator is an essential pre-condition in guaranteeing that a fair trial takes place. It is a fundamental requirement under section 36(6)(e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and any judge that fails to observe this requirement will be deemed not to have complied with the requirement of fair trial and its non compliance will serves as a veritable grounds for appeal. There is need for Nigeria government to set up Translators’ and Interpreters’ Institutes for training interpreters for Nigerian Courts and establish professional bodies for licensing and regulating those deemed to be competent in interpreting several Nigerian languages in Court Rooms situations or during trials in administrative judicial setting like Irish Translators’ and Interpreters’ Association (ITIA) which exist in Republic of Ireland (Phelan 2006: 7) [55] because it will be an aberration if the law did not set standard qualification for an interpreter except the assumption that a competent interpreter must have a versatile knowledge of the mother tongue of the accused person together with English Language which is the official language of Nigeria Courts. The reason is because the act of legal communication through the service of an interpreter should be highly skillful and therefore requires specialist training in an institution. The Court interpreter has to deal with complex legal terms or jargons and poor interpreting can obviously mar or truncate the success of the case of an accused person who does not understand the language of the Courts in Nigeria, which is English.

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Received: 2015-11-11
Accepted: 2016-2-23
Published Online: 2016-5-19
Published in Print: 2016-4-1

©2016 by De Gruyter Mouton

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