Access to justice for Deaf persons under the CRPD

The cornerstone of SL and deafness under international law is the CRPD. The aim of the Treaty is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity”.Footnote ⁶ Article 1 of the CRPD conceptualizes disability as including any long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder the full and effective participation of persons with disabilities in the society on an equal basis with others.Footnote ⁷ Persons with disabilities, including Deaf persons, are considered to be part of human diversity.Footnote ⁸ By emphasizing cultural preservation and protection of the individual identity of each person with disability, the CRPD intertwines linguistic rights with accessibility.Footnote ⁹ Deaf persons are conferred with a dual category status, where they are considered both as persons with disabilities and cultural-linguistic minorities.Footnote ¹⁰

Although the Treaty does not necessarily create new rights, the Committee on the Rights of Persons with Disabilities (CRPD Committee) General Comment No 2 on Article 9 places specific equality duties upon states parties.Footnote ¹¹ The obligation to provide accessibility is an essential part of this new duty to respect, protect and fulfil equality rights.Footnote ¹² In this sense, it must be understood that the obligation “to respect” requires states parties to refrain from interfering with the enjoyment of justice rights of Deaf persons. The obligation “to protect” means that states parties have to ensure that the rights of Deaf persons are not infringed upon by third parties, that includes the duty to protect Deaf victims and witnesses from violations and providing access to redress and reparations where human rights violations occur. The obligation “to fulfil” imposes an ongoing and dynamic duty to adopt and apply the measures needed to secure the development, advancement and empowerment of Deaf persons.Footnote ¹³ SL interpretation is one of the key mechanisms through which the CRPD seeks to address injustices faced by Deaf people, especially in the criminal justice system.Footnote ¹⁴ A number of legal provisions may be construed as explicitly mandating SL interpretation as a means of ensuring access to justice rights of persons with disabilities.Footnote ¹⁵

Deaf witnesses should be treated as legally independent and competent subjects, with a right to be informed about their case and to have their voices heard.Footnote ¹⁶ The CRPD obligates states parties to prohibit all discrimination on the basis of disability and to take appropriate steps to ensure that reasonable accommodations are provided in the criminal justice system.Footnote ¹⁷ Reference to “all proceedings” under article 13 of the Treaty is broad enough, as Mor states, to encompass processes and hearings in all stages of any criminal, civil, administrative and quasi-judicial matters.Footnote ¹⁸ In Tennessee v Lane (Lane), the Supreme Court of the USA held that the obligation to accommodate is largely consistent with the well-established due process principle.Footnote ¹⁹ Simply having access to qualified sign-language interpreters (SLIs) is not sufficient to ensure the ability of Deaf people to enjoy their human rights. What is required is a meaningful opportunity to be heard in court.Footnote ²⁰ The latter entails availing Deaf people an opportunity to express their views in legal or administrative proceedings and giving due weight to those ideas.Footnote ²¹ In order to create a non-discriminatory legal environment and facilitate an inclusive justice system geared towards meeting the diverse needs of Deaf witnesses such as access to qualified SLIs and assistive technologies, a state needs to consider the principles related to universal design, reasonable accommodations, accessibility and individual support measures.Footnote ²²

Reasonable accommodations are individualized measures geared towards meeting the individual requirements of each Deaf person. According to the CRPD, the aim is to move beyond formal equality and achieve substantial equality.Footnote ²³ Article 5 of the CRPD provides that in order to promote equality and eliminate discrimination, states parties must take all appropriate steps to ensure that reasonable accommodation is provided. In other words, the cost of adjustments must be borne by the public entity and not by the Deaf person seeking the accommodation.Footnote ²⁴ This was exemplified in Clarke v Catholic Education Office and another,Footnote ²⁵ where the Federal Court of Australia upheld the decision of the court a quo [following from], which had found that there was discrimination by the authority’s failure to provide an Australian SL interpreting assistance to support a prospective profoundly Deaf person and awarded substantial compensation.

A government is under an obligation to provide SL interpreting services upon request in all its programmes, offices and services.Footnote ²⁶ That was the holding in Eldridge v British Columbia Attorney General,Footnote ²⁷ where the Supreme Court of Canada held that all Deaf persons, including witnesses, have a right to submit documents in SL and receive responses and information in that language be it in court or otherwise. While this case dealt specifically with the right to SL interpretation in the health care system, the principles set out apply more generally to all services provided by governments or non-governmental organizations carrying out specific public objectives. According to the CRPD, the law should be read as requiring instruction in a SL that a Deaf individual is most comfortable communicating in and this should be fulfilled immediately, subject only to certain defences such as unreasonable accommodation and undue burden.Footnote ²⁸

State parties must provide reasonable accommodation of the individual’s requirements.Footnote ²⁹ Emphasis is on the individual’s and not the state’s chosen language. In other words, a Deaf Person’s needs should be taken into consideration when determining the appropriate accommodations in access to justice. A case in point is Simser v Tax Court of Canada, involving a Deaf lawyer who was seeking to have captioning (CART) available to him during court proceedings. The court settled and implemented a new policy requiring that CART or SL interpreting be made available to any Deaf, deafened or hard of hearing party or witness, lawyer or articling student.Footnote ³⁰ Violation of an individual’s reasonable accommodation measures, especially for Deaf persons, has often been considered tantamount to a denial of access to the courts.Footnote ³¹

Having adopted a rights-based approach, the CRPD’s focus is mainly on the specific prohibition of discrimination against persons with disabilities in all facets of life, including in access of justice.Footnote ³² Every judicial system should ensure that there is equal protection and benefits for Deaf persons under the law, be it when they are reporting a crime, facing criminal accusations, undergoing interrogation or when giving testimony in court.Footnote ³³ For instance, in ZH v Hungary,Footnote ³⁴ the European Court of Human Rights ruled that articles 3 and 5 of the European Convention on Human RightsFootnote ³⁵ had been breached in circumstances where Hungarian police authorities failed to take special measures to address the communication needs of a detainee who was “innately deaf and dumb and has medium-grade intellectual disability”. Given the applicant’s multiple disabilities, the Court was not persuaded that he could be considered to have obtained the information required to enable him to challenge his detention. According to the judges in ZH v Hungary, authorities should take reasonable steps, a notion quite akin to that of reasonable accommodation under articles 2 and 14 of the CRPD, to address the condition of accused Deaf persons, in particular, by procuring them assistance of lawyers or other suitable persons.Footnote ³⁶ Otherwise, any trial without requisite measures being taken within a reasonable time may result in a situation amounting to discrimination.Footnote ³⁷

The CRPD Committee has considered the issue of inclusive justice on multiple occasions in response to communications to the Treaty body by Deaf persons, for example, in Michael Lockrey v Australia,Footnote ³⁸ Gemma Beasley v Australia Footnote ³⁹ and JH v Australia.Footnote ⁴⁰ The CRPD Committee in these cases found the State of Australia to be in violation of articles 3 and 5(1) of the CRPD due to its failure to provide reasonable adjustments geared towards enabling the participation of Deaf people in access to justice.Footnote ⁴¹ Although the communications dealt with Deaf jurors, they are relevant even in access to justice as the principles of ensuring effective participation and equal access to assistive technologies extend to all individuals, regardless of their roles in the criminal system. In other words, the two cases are germane to the broader criminal justice administration, especially where the rights of Deaf people have been adversely affected or is imminent, due to an act or omission by state authorities.Footnote ⁴² The provision of accessible information in the criminal justice sector is a critical aspect of communicating with a Deaf witness. Particularly, article 9 of the CRPD is an essential tool in the fight to acquire greater accessibility to judicial services by Deaf people.

A crucial difference between reasonable accommodation and accessibility is that while reasonable accommodation is an individualized response, accessibility measures are designed to accommodate groups of Deaf persons, such as providing SL interpretation for persons with hearing impairments.Footnote ⁴³ Moreover, in General Comment No 2 on accessibility, the CRPD Committee has emphasized that the obligation on states to implement accessibility is ‘unconditional’, meaning that it is not limited by the defence of undue burden that is used as an excuse for omissions to provide reasonable accommodation.Footnote ⁴⁴ Accessibility requires state parties to ensure the provision of live assistance and intermediaries such as SLIs,Footnote ⁴⁵ accessible signage, including easy-to-read formats,Footnote ⁴⁶ accessible information and communication technologies,Footnote ⁴⁷ and other forms of assistance and support needed to ensure access to information.Footnote ⁴⁸ Some of these measures are discussed in detail in the next two sections.

Evolution of the recognition of SL in Kenya’s criminal justice system

SL refers to any means of communication, involving bodily movements, such as those of the hands and arms, especially in situations where spoken language is impossible or undesirable.Footnote ⁴⁹ Kenya Sign Language (KSL) utilizes visual gestural language as the main form of communication for Deaf people.Footnote ⁵⁰ KSL is believed to have originated with the formation of residential Deaf schools, the first two of which were established in Western Kenya around 1962.Footnote ⁵¹ It is considered to be the mother tongue (MT) of Deaf people.Footnote ⁵² The Gachathi Commission of 1976 is credited, albeit to a limited extent, for putting MT, including KSL, in its rightful place in the country.Footnote ⁵³ Other than that, there were no clear cut policies on the use of KSL as the MT for Deaf people in Kenya.

Most government policies only recognized the spoken and written English language as the only legitimate means of communication. Some of the policies that entrenched the hegemony of the vocalized English words include Education Department Reports by Beecher, Binn and Drogheda of 1949 and 1952 respectively.Footnote ⁵⁴ These reports provided little alternatives to persons with disabilities. The only report that accorded to Deaf people in Kenya an opportunity to communicate in their MT, which is KSL, was the one authored by the Gachathi Commission.Footnote ⁵⁵ However, despite the latter’s efforts, the society largely failed to recognize KSL as an alternative form of communication to the spoken language.Footnote ⁵⁶ This ignorance, coupled with the stigma associated with being disabled, led to numerous violations of Deaf people’s rights, including in the criminal justice system.

Under the common law, Deaf people were considered to be propter defectum [incompetent on account of or for some defect].Footnote ⁵⁷ There was a presumption that any person born “deaf and dumb” was an “idiot”, a phrase used derogatorily to refer to persons with intellectual disabilities.Footnote ⁵⁸ Such labels and others, including “deaf mute”, proved to be injurious and offensive throughout Kenya’s history because they reinforced the connection between Deaf people, “stupidity” and “speechlessness”.Footnote ⁵⁹ The latter’s intelligence was usually compared to that of infants, in constant need of assistance and therefore unable to participate in any legal transaction.Footnote ⁶⁰ A majority of people with hearing impairment were disqualified from participating in proceedings on account of feeblemindedness.Footnote ⁶¹ Later, however, Deaf persons were allowed to testify in either written or signed testimony, or with the assistance of an interpreter and their testimony was considered credible.Footnote ⁶² An SLI is a person who is able to translate signs into speech and vice versa.Footnote ⁶³

People’s views towards the condition were largely based on the medical model, which considers deafness as a health condition that requires sustained medical care provided in the form of individual treatment by professionals. The model ignores the linguistic challenges that Deaf people experience in the society. These omissions led to the development of oralist policies and the rigid requirement for the use of Signed Exact English (SEE) in Kenya’s criminal justice system. Such procedures may be attributed to confusion between interpretation and translation. The former deals with the transfer of oral messages from one language to another in real time, as opposed to the latter, which deals with conversion of written messages and may occur at any time.Footnote ⁶⁴ Oralist policies consider the oral language as the only legitimate form of communication compared to SL. For example, under section 194 of the Criminal Procedure Code,Footnote ⁶⁵ subordinate courts are required to take down evidence in the presence and hearing of accused persons. Section 126 of the Evidence ActFootnote ⁶⁶ also does not make provisions for Deaf witnesses but instead deems any evidence given by a person with speech disability as oral evidence. This is so despite the fact that such evidence may be given by way of writing or by signs. Although there are exceptions, Kenyan law is largely based on audism and this has in some instances led to the failure of courts to address accessibility issues for persons with hearing impairments.Footnote ⁶⁷

Language is not synonymous with speech. Article 2 of the CRPD defines language to include spoken and signed languages and other forms of non-spoken languages.Footnote ⁶⁸ Thus, SLs are implicitly included in all articles of the CRPD that mention “communication” or “language”. The CRPD adopts both a social and human rights-based approach (HRBA) to disability. The model considers disability as a socio-political construct that is caused by the environment. HRBA also recognizes the existence of Deaf persons rights, including in access to justice. The government, as a duty bearer, is obliged to respect and protect those guarantees. In Kenya, however, the State is yet to adequately define the procedure for dealing with Deaf witnesses.Footnote ⁶⁹ Guidance to determine such procedures has been left to the courts whose decisions have been fragmented as discussed in the next section.

Kenyan law protecting the Deaf in their interactions with the criminal justice system

Kenya’s national SL is recognized by both the Constitution and other kinds of enabling legislation. Generally, the country has adopted both a disability and linguistic rights system to SL. This means that Kenyan laws conceptualizes Deaf people as “disabled” and also views them as part of a marginalized linguistic and cultural community that has historically been, and continues to be, dominated by the surrounding hearing community.Footnote ⁷⁰ Article 54(1)(d) states that a person with any disability is entitled to the use of SL, Braille or other appropriate means of communication. It is also worth noting that the Constitution does not speak of Deaf people but of persons with disabilities. This is significant, as Deaf people are not the only ones who are in need of SL. The converse is also true that not all Deaf persons are necessarily in need of SL.

Kenyan law both explicitly and implicitly mandates the use of interpretation to protect the rights of Deaf witnesses in court. The Constitution recognizes KSL as a language under article 7(3)(b). The latter article obligates the government to promote the development and use of indigenous languages, KSL, Braille and other communication formats and technologies accessible to persons with disabilities.Footnote ⁷¹ It is therefore the responsibility of the judiciary to ensure that they make available their products and services to persons with disability on an equal basis as with other Kenyan citizens. The law prohibits the discrimination of Deaf people on account of disability.Footnote ⁷² However, this has not usually been the case. Under the repealed Constitution of 1969, as amended in 1997,Footnote ⁷³ disability was not listed as a ground for discrimination, a situation that led to the violation of the rights of persons with disabilities generally. For instance, in Duncan Otieno Waga v Attorney-General,Footnote ⁷⁴ the High Court of Kenya held that it could not find for the applicant since disability was not listed in the non-discrimination clause under the then 1969 Constitution.

The Kenyan Constitution 2010 aims to ensure that guarantees of inviolable rights and the promotion of human dignity for persons with disabilities are geared towards the latter’s inclusion and removal of obstacles that limit their participation in all aspects of their lives. Article 27(4) of the Constitution entrenches a concept that does not always equate equal treatment with identical treatment. In Gichuru v Package Insurance Brokers Ltd (Gichuru), the Supreme Court of Kenya, while determining the meaning of the terms “direct and indirect discrimination” held that discrimination may occur when a person is treated differently from other people in similar situations on the basis of one of the prohibited grounds.Footnote ⁷⁵ Kenya’s laws forbid unjustified discrimination towards Deaf persons on account of their disability. According to the Court in Gichuru, reasonable accommodation is one of the mechanisms, which may be used to avert or avoid both direct and indirect discrimination.Footnote ⁷⁶ The general duty to accommodate arises from the moment the need for such accommodations is identified.Footnote ⁷⁷ A failure to accommodate a Deaf witness in court may amount to a violation of article 27 of the Constitution.Footnote ⁷⁸

Kenya’s legislative and policy provisions do not expressly provide for SL as a way of ensuring equal justice access for Deaf people. Under the law the right to a SLI is not automatic but is left to the discretion of the presiding judicial officer. In practice however, the right is readily accorded to Deaf persons due to the nature of their impairment, which most times has led to their non-comprehension of judicial proceedings. The Kenya Sign Language BillFootnote ⁷⁹ provides for the protection and promotion of the right to justice and fair administration action with respect to persons who are Deaf and hard of hearing. However, this Bill has never been passed into law. As at the time of writing this paper, implicit recognition of SL is found in legislation separate from that which is dedicated to language laws. An example of implicit recognition in Kenya is the Persons with Disabilities Act (PDA),Footnote ⁸⁰ which provides for SL interpreting services.Footnote ⁸¹ The PDA explicitly states that SL interpretation under Kenyan law should be provided for, without any charge, regardless of a witness’ means or whether they are otherwise entitled to free legal assistance.Footnote ⁸² A number of courts have also held that Deaf accused persons have a constitutional right to SLIs as discussed later in this section.

The downside to achieving greater linguistic accessibility under the PDA is the negative connotation associated with disability. The Act defines disability to mean any physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation.Footnote ⁸³ This definition is based on the medical model of disability whose aim is curing the individual rather than embracing diversity by addressing the agency or the inaccessibility of the judicial environment by Deaf persons.Footnote ⁸⁴ Concerns exist that correctional methods will be imposed on Deaf people as opposed to accepting their distinctive physical constitution, mores, attitudes and values.Footnote ⁸⁵ For example, such legislation could include forced implantations without the provision of SL.

The PDA seeks to promote accessibility of information and communication for persons with disabilities. In reality, however, lack of physical access to the courts and other accessibility barriers remain a significant challenge for disabled persons.Footnote ⁸⁶ The CRPD Committee has also acknowledged several other challenges to the participation of Deaf persons in court, the primary one being the absence of suitable accommodations during court proceedings.Footnote ⁸⁷ According to the CRPD Committee, the lack of availability of information in accessible formats, additional costs to access SL interpretation services and the lack of free legal aid have the potential of impeding effective access to justice for persons with disabilities in the country.Footnote ⁸⁸ Although Kenyan courts have directly addressed the issue of inaccessible court infrastructure, little further progress has been made in this area and there remains a lack of clarity regarding the enforceability of the accessibility provisions of the PDA.Footnote ⁸⁹

Article 14(3) of the International Covenant on Civil Political Rights (ICCPR)Footnote ⁹⁰ informs article 50(2)(b), (j) and (m) of the Kenyan Constitution and protects the rights of Deaf persons to an interpreter. In Bernard Wachira Kamonye v Republic,Footnote ⁹¹ the Court of Appeal of Kenya stated that all accused persons, including Deaf people, have a right to the services of an interpreter. The latter facilitates the effective participation of Deaf witnesses in court.Footnote ⁹² These cases and provisions are critical to the importance of interpreters, including SLIs in access to justice. Particularly, courts have held that it is mandatory to avail interpreters in criminal trials where necessary and that all proceedings must be interpreted in a language which is understandable by an accused person.Footnote ⁹³ SLIs play a similar role to that of spoken language interpreters. Thus, the former is required to interpret in the language of the Deaf witness, which may take the form of signs and gestures familiar to the person with hearing impairment.Footnote ⁹⁴

However, communication gaps still exist. For example, lack of access to information, language barrier, limited access to interpreters and inadequate interpretation play a major role in preventing Deaf witnesses from effectively participating in Kenya’s criminal justice system.Footnote ⁹⁵ Absence of interpreters may lead to unnecessary delays of criminal trials involving Deaf defendants as was highlighted by the Kenya National Commission on Human Rights (KNCHR) in a case where they were forced to intervene and avail an SLI in order to ensure expeditious disposal of a court matter.Footnote ⁹⁶ In Thomas Menya Olum v Republic,Footnote ⁹⁷ the court held that the non-availability of a SL translator in the trial court automatically renders the entire trial a nullity as was the case. Apart from that, the court also acknowledged that there was a challenge in Kenya when it comes to obtaining the assistance of SLIs in court. The appeal for example, had to be adjourned severally before securing the attendance of a SL translator. On the flipside, the presence of interpreters does not guarantee access to justice as some Deaf accused persons may be unfamiliar with the workings of formal interpreters.

Deaf individuals communicate in different ways, depending on their background, cognitive competences and context. The communication means involved may include national SL, diverse regional alternatives or idiosyncratic and socio-lectal variants depending on age, ethnicity or gender. The signs constituting a particular language may be as a result of a specific cultural trait of a specific Deaf community. For example, it has been demonstrated through research that only 20 per cent of KSL and American Sign Language (ASL) are identical compared to the differences, which account for 55 per cent.Footnote ⁹⁸ It is therefore probable that a single sign used in two different languages may have several distinct meanings. Relatedly, one image, concept or object may be expressed by different signs in more than one dialect. These similarities and differences have been found to be among the causes that have inherently limited communication in SL, especially in terms of difficulties in comprehension.Footnote ⁹⁹ The latter occurs in situations where a Deaf person and the interpreter are speaking different dialects of SLs. The latter, as in the case of spoken languages, has its own peculiarities.

In People v Guzman Footnote ¹⁰⁰ it was held that Deaf persons are as capable as anyone else of understanding legal jargon or any other technical verbiage used by legal and non-legal expert witnesses.Footnote ¹⁰¹ This may be true, especially in cases where formal SLs such as KSL are being used. However, in most countries, including Kenya, many Deaf people live in isolation, surviving only on rudimentary home signs.Footnote ¹⁰² These casual multimodal communication techniques, although useful in everyday life contexts, may not be a good fit for “legalese” and complicated courtroom procedures.Footnote ¹⁰³ Such variations in language have mainly resulted in barriers to the interactions between Deaf and hearing people, especially in court.Footnote ¹⁰⁴ This was the situation in Macharia Kiama v Republic,Footnote ¹⁰⁵ where a Deaf appellant had difficulty following his appeal proceedings despite being provided with an SLI, who was a relative. Home or idiosyncratic signs apply to Deaf people who have not received SL education and do not have linguistic fluency in any signed or written language, lipreading or diverse manual signed systems.Footnote ¹⁰⁶

Kenya’s approach to SL is largely monolingual, meaning that the country officially recognizes only one SL.Footnote ¹⁰⁷ However, according to the law, all Deaf people are entitled to communicate using a language that they best understand and through a platform, which they can do so effectively.Footnote ¹⁰⁸ Section 31 of the Sexual Offences ActFootnote ¹⁰⁹ empowers the court to declare a witness, other than the accused, a vulnerable person on account of language. This provision envisages a multilingual courtroom. It means that forbidding the use of alternative SLs in the courtroom does not only constitute linguistic genocide but also amounts to a denial of justice as was the case in NAO v Republic. The latter matter brought to light some of the challenges that Deaf accused persons face in Kenya’s criminal justice system especially with regards to their inability to participate effectively in court due to the complexity of different dialects of SLs.Footnote ¹¹⁰

Courts should avoid settling on KSL as the sole official language of record. The people of Kenya expect judges and magistrates to resolve disputes in a manner that is user-friendly, practical and cost-effective. In order to achieve these objectives, other formal and informal SLs should be used equally alongside KSL. The High Court in Kenya has stressed the need for a linguistic assessment in circumstances where there is any communication barrier between a Deaf witness and an interpreter.Footnote ¹¹¹ However, the judiciary should not rely only on expert reports which focuses on the language-related barriers between Deaf persons and the court, but reflect on the possible means of overcoming such obstacles.Footnote ¹¹² They should envisage measures more adapted to a witness’ disability, such as obtaining expert evidence from specialists familiar with the solutions to challenges faced by those with hearing impairments.

The ability to understand proceedings and ensure interpretation is of a high quality contributes to the process of ensuring that justice is attainable for Deaf people and hearing abled persons. A Deaf witness is entitled to have any argument interpreted as long as an interpreter is present in the courtroom.Footnote ¹¹³ An interpreter is expected to interpret “word by word” or “sentence by sentence” and remain faithful and accurate to the original message.Footnote ¹¹⁴ Otherwise, the translation will be deemed as hearsay.Footnote ¹¹⁵ This is a misconception, as KSL cannot be interpreted word-for-word and any requirement for a verbatim record should be a cause for concern.Footnote ¹¹⁶ In the alternative, courts should carefully consider any existing biases, animosity, or allegations made by a party with regard to an interpreter’s obstruction of justice.Footnote ¹¹⁷ In Hamisi s / o Salum v R Footnote ¹¹⁸ (Hamisi) the East African Court of Appeal (EACA) criticized the method of interpretation that was used for being crude and not free from bias. In that case, a sister of a “Deaf and dumb” witness acted as an interpreter to the latter party who spoke through signs and noises. The EACA held that where there is need for interpretation, an expert should be called and not a relative due to the possibility of bias. In MM v Republic (MM), the Court of Appeal defined the role of an intermediary, including SLIs as provided for in section 31(7) of the Sexual Offences Act, as involving the conveying of the substance of any question to the Deaf witness, informing the court at any time that the witness is fatigued or stressed and requesting the court for a recess.Footnote ¹¹⁹ These roles are akin to that of an ally, whose focus is ensuring equal access to court proceedings.Footnote ¹²⁰ According to the court in MM, the thinking behind the enactment of section 31 of the Sexual Offences Act was to moderate the traumatic effects of criminal proceedings.Footnote ¹²¹

In Hamisi, the interpreter spoke on behalf of the Deaf complainant as the latter was deemed unable to testify on account of mental disability. This procedure was upheld in the case of David Muchiri Njue v Republic (Njue),Footnote ¹²² with slight modifications.Footnote ¹²³ According to the court in Njue, the interpreter has to lay a basis for his / her ability to interpret what the Deaf witness is telling the court.Footnote ¹²⁴ Section 2 of the Sexual Offences Act defines an intermediary to mean among other things, a person who gives evidence on behalf of a vulnerable witness.Footnote ¹²⁵ Further, in section 31(1) of the Sexual Offences Act, a Deaf accused person should not be convicted solely on the uncorroborated evidence of an intermediary.Footnote ¹²⁶ The Kenyan Court of Appeal in MM held that the evidence presented in a case involving a Deaf person is not that of the SLI but that of the witness with hearing impairment relayed to court through the interpreter.Footnote ¹²⁷ The court based its argument on article 50(7) of the Constitution, which allows intermediaries, where it is in the interests of justice to assist a Deaf complainant or an accused person to communicate with the court. This is also the case in South Africa, where the law allows for certain witnesses, including Deaf witness to testify through an intermediary, rather than directly in situations where they are prevented from doing so on account of language or disability.Footnote ¹²⁸

With regards to the issue of conflict of interest, for instance where the Deaf witness and the SLI are related, the approach seems to be that of adopting appropriate measures to adequately facilitate the ability of the witness to tender intelligible evidence without compromising the opposing party’s fair trial rights.Footnote ¹²⁹ A father who participated as an interpreter during the investigation stage, particularly when the Deaf complaint’s statement was being recorded, has been considered an interested person.Footnote ¹³⁰ The test seems to be of evaluation of any conflict of interest on the part of the intermediary or interpreter, rather than mere affiliation.Footnote ¹³¹ Section 2 of the Sexual Offences Act defines an intermediary to include a parent, relative, psychologist, counsellor, guardian, children’s officer or social worker.Footnote ¹³² Thus, as long as an interpreter is not biased and able to understand a Deaf person’s method of communication, the court will allow the use of that intermediary despite the relationship. An oath must be administered to the interpreter so as to impress upon him or her the duty of speaking the truth.Footnote ¹³³ The trial court also has discretion to delineate the extent of the SLI’s participation in the proceedings.Footnote ¹³⁴

The other challenge that the country has experienced when implementing the right of Deaf witnesses to access justice includes inaccurate translation of testimonies by interpreters. This occurs especially in instances where Deaf witnesses in court converse in writing and gestures.Footnote ¹³⁵ According to Geer, certain gestures such as nodding by a Deaf person may connote effort, rather than understanding.Footnote ¹³⁶ In Kenga Hisa v Republic (Hisa),Footnote ¹³⁷ the court dealt with the issue of quality of interpretation accorded to a Deaf accused person in Kenya. According to the court, an interpreter must have sufficient command of SL.Footnote ¹³⁸ In other jurisdictions, “somewhat inaccurate” translations do not amount to a violation of the right to access justice as long as an accused has understood the “gist” of the proceedings.Footnote ¹³⁹ Overall, it is clear that there is an overreliance on SL interpretation as a way of ensuring the right to a fair trial of Deaf persons in Kenya’s criminal justice system. Section 28(3) of the PDA requires the chief justice to adopt regulations providing for free SL interpretation, Braille services, other communication formats and technologies accessible to persons with disabilities, physical guide assistance and intermediaries. Although this is yet to be done, Lavigne and Vernon have argued that the use of SL interpretation alone cannot instantly and perfectly convert spoken words to an appropriate language for Deaf witnesses in court.Footnote ¹⁴⁰ In order to ensure meaningful communication between Deaf and hearing persons, there is need for more accessibility requirements and inquiries as discussed in the next section.

The protection of Deaf people in criminal courts: the American experience

Quality of courtroom interpretation is a problem facing many jurisdictions when Deaf people come into contact with the legal system. This section discusses SL interpreting in the USA setting. The USA was chosen because it constitutes one of the most developed sign-language interpretation practices and laws in the world, such as the Americans with Disabilities Act (ADA)Footnote ¹⁴¹ and the Federal Court Interpreter Act.Footnote ¹⁴² The section focuses on the use of interpreting modes such as Deaf-hearing interpreter teams and incorporation of accessibility technology such as video remote interpreting. Particularly it deals with requests by Deaf accused persons for multiple interpreters (one to interpret the criminal proceedings and one to interpret conversations between the Deaf accused person and his or her advocate), Deaf-relay interpreters, or consecutive interpretation and simultaneous interpretation.Footnote ¹⁴³ All these forms of interpretation are recognized under the Federal Court Interpreter ActFootnote ¹⁴⁴ whose main object is to ensure that a Deaf accused person is present in both body and mind during any legal proceeding.

Most SLIs involve hearing interpreters. The latter are preferred when both parties understand the same SL. Team interpreting refers to a situation in which two or more hearing interpreters work together for an interpreting assignment.Footnote ¹⁴⁵ The primary function of a hearing team interpreting is to preserve the accuracy and faithfulness of the interpretation.Footnote ¹⁴⁶ Most Codes of Professional Practice across the globe tend to place an expectation on hearing interpreters to indicate the need for a team interpreter.Footnote ¹⁴⁷ The interpreting partners observe, taking turns and holding responsibility in providing support to each other and evening out the workload. The team is normally composed of active and support interpreters. The one directly involved during court proceedings is known as the active interpreter. If the team is working simultaneously, the support interpreter may assist the active interpreter by writing down numbers or listing items, while also researching and providing their teammate with any challenging terminology. This method of interpreting is used in highly complex assignments, or to reduce physical and cognitive fatigue.Footnote ¹⁴⁸

According to New York v Negron,Footnote ¹⁴⁹ all team interpreters must take an oath to interpret accurately. This is also the case in Kenya as discussed in MM v Republic above. Nevertheless, hearing interpreters are not always proficient in all SLs. In Kenya for example, an increase of Deaf immigrants in the country may necessitate the need for interpretation from foreign SLs to KSL and vice versa. One way of accommodating Deaf witnesses with communication difficulties due to dialectical variations in the USA is through the use of Deaf-hearing interpreting teams. In Stanley v Lazaroff Footnote ¹⁵⁰ for example, a Deaf defendant who had previously been released after being found “incompetent” to stand trial, was re-arrested and tried using a Deaf-hearing interpreting team. In People v Vasquez,Footnote ¹⁵¹ a California court described a Deaf-hearing team accommodation and process as follows:

According to the court, one goes from one communication medium to another to another and back through.Footnote ¹⁵³ In People v Rivera, a New York court explained the process as follows: “[T]he interpreter who could hear translated the courtroom’s spoken language into ASL for [the Deaf interpreter], who is herself hearing impaired. She, in turn, transformed the ASL into a more universal, expressive language of communication, including facial expressions and bodily gestures. The reverse process was similarly employed”.Footnote ¹⁵⁴

The court noted that this method is effective as it enabled Deaf parties to understand and communicate effectively through the two interpreters. In Lazaroff, the court further found that apart from understanding, this mode of accommodation also enables defendants to consult with counsel and assist in their defence, despite what has been termed as their “lower level of intellectual functioning”.Footnote ¹⁵⁵

According to several USA statutes, Deaf-relay interpreters are defined as knowledgeable Deaf people who, because of their intimate acquaintance with Deaf witnesses, can be used as intermediaries between a party with a hearing impairment and a qualified interpreter.Footnote ¹⁵⁶ Usually, a hearing party begins by speaking to a hearing interpreter, who interprets what has been said to a Deaf interpreter. The latter then takes the message and reformulates it in a form that a Deaf witness can understand.Footnote ¹⁵⁷ This mode of accommodation is used to solve the challenge of unfamiliarity of communication styles of Deaf witnesses by non-Deaf interpreters.Footnote ¹⁵⁸ The main reasons for the use of Deaf interpreters is to bridge the dialectical differences between Deaf communities. They are normally persons who are intimately acquainted with the communication style or dialect of a Deaf witness.Footnote ¹⁵⁹ Their employment is also used to augment the non-Deaf interpreter’s SL abilities and avoid unnecessary declarations of incompetency against Deaf witnesses.Footnote ¹⁶⁰ There have been cases where Deaf accused persons were being declared incompetent to stand trial based on their limited SL skills.Footnote ¹⁶¹ For example, in People v Lang,Footnote ¹⁶² it was held that a defendant who is unable to understand and participate in legal proceedings due to their inability to communicate should not be subjected to a court trial.

Although the USA is not a party to the CRPD, their courtrooms are being designed or retrofitted with universal design principles in mind, meaning that all participants, including the Deaf, can take advantage of the technologies offered. Appropriate accommodations are available to Deaf judges, lawyers and witnesses.Footnote ¹⁶³ Section 36 of the ADA obligates all public entities to furnish appropriate auxiliary aids and services where necessary in order to afford Deaf individuals an equal opportunity to participate in and enjoy the benefits of a service, programme or activity conducted by public entities, including in the criminal justice system. This legal provision implies the use of other forms of accommodations, apart from SLIs, that may augment the participation of Deaf persons in access to justice. Such alternative accessibility measures may include the provision of assistive devices whenever required and engaging experts to enhance communication with Deaf persons, depending on the latter’s individual needs.Footnote ¹⁶⁴ One significant development is the advent of real-time transcription services, such as Communication Access Realtime Translation to facilitate communication between Deaf and hearing people in court.Footnote ¹⁶⁵

Realtime captioning is available to Deaf lawyers, prosecutors and accused persons. This was the case in Harrison v Office of the State Courts,Footnote ¹⁶⁶ where the County of Florida agreed, at its own expense, to provide a Deaf lawyer, who was the plaintiff, with ‘Real-time Transcription Services’, including a laptop and all the required connectivity that was required for use in criminal trials across courts with that jurisdiction.Footnote ¹⁶⁷ In Ferrell v Estelle,Footnote ¹⁶⁸ the Fifth Circuit ordered a new trial for a Deaf accused person who was denied stenographers to transcribe the spoken words and was instead given frequent recesses to confer with his lawyer as to what was happening during the trial. A real-time transcription is a near simultaneous written transcript of the proceedings. The provider uses stenography shorthand to capture everything that is said in the courtroom. Computer software, such as LiveNote or CaseView programmes, converts that shorthand into standard English. In order for real-time transcription to work effectively, the court reporter’s stenography machine should be connected to the laptop computer that is being used by a Deaf witness. The technology has the potential of benefiting even hearing judicial officers as they are able to look back at earlier testimonies that may not have been clear, including any examination of witnesses by advocates. Challenges, especially on how to use such machineries, can be overcome by frequent training of all judicial actors.Footnote ¹⁶⁹

Another positive development used to counter the non-availability of SLIs is the use of remote interpreting services. The revised Department of Justice regulations that enforce Title II of the ADA specifically recognizes video remote interpreting as an appropriate auxiliary aid and service for ensuring the participation of Deaf persons in access to justice.Footnote ¹⁷⁰ According to the regulations, any video and audio feed that is used in court must be sufficient to permit high-quality visuals and clear, audible transmission of voices.Footnote ¹⁷¹ Adequate training to operate and set-up the remote video services is also required for those involved. Assistive listening devices, such as cochlear implants, have also been used by Deaf justice actors during court proceedings.Footnote ¹⁷² The technology involves the broadcasting of information into speakers or portable wireless microphones, which then conveys it to an infrared transmitter and then to a portable receiver connected to a speech processor of a Deaf party’s cochlear implant.

The case of Judge Brown, who in 1983 lost hearing in his left ear after undergoing an operation to remove a brain tumour, is an example.Footnote ¹⁷³ It is reported that after receiving a cochlear implant, taking lipreading classes and through assistive technology, the judge was able to pursue his judicial duties with limited barriers.Footnote ¹⁷⁴ In fact, in Strook v Kedinger, the same judge held that where a party makes an application for provision of an interpreter during a trial, the court is required to either act on that request by obtaining such accommodation or set a hearing date to determine the merits of the application.Footnote ¹⁷⁵ Another associate judge of the Superior Court of Delaware, Norman Barron, who lost his hearing completely as a result of Meniere’s disease, used hearing aids, an FM system and real-time captioning when performing judicial duties.Footnote ¹⁷⁶ Currently, Kenya provides very little accommodation of this kind thus, prompting the CRPD Committee to make recommendation for adequate reasonable adjustments in order to ensure the right to access of justice for all persons with disabilities, including Deaf people.Footnote ¹⁷⁷