1.1 Looking Back

The discipline of forensic linguistics is constantly evolving. Although it is not easy to trace its origin, the term ‘forensic linguistics’ was first used in 1968, gaining traction when a professor of linguistics, Jan Svartvik, mentioned it in an eminent analysis of statements by Timothy John Evans (Umiyati, Reference Umiyati2020). The Evans case (1950), reported at Notting Hill police station in the United Kingdom, constituted a serious crime in which Timothy John Evans was convicted of murdering his wife and child. Based on his confession, the court found him guilty and he was executed in 1953. Events associated with the case generated public and media interest, and hence the publication of Evans’s confession by the journalist Ludwig Kennedy. It was at this point that Professor Jan Svartvik, a Swedish linguist, took it upon himself to conduct an in-depth analysis of the confession using forensic linguistics techniques. Based on his analysis, Svartvik concluded in 1968 that Evans had not actually made the statement that the police claimed he had made. Evans was later pardoned posthumously, based on Jan Svartvik’s findings. (For a detailed account, see Olsson, Reference Olsson2008; Dissake, Reference Dissake2021.) It became apparent that a miscarriage of justice could have been prevented by an application of linguistic evidence, and Jan Svartvik, made famous through the Evans case (1950), became forever associated with the field of Forensic Linguistics. Since then, forensic linguistics has begun to establish itself as a discipline, with its application proliferating across the globe, particularly in the Global North. The United Kingdom and the United States of America have the highest numbers of forensic linguistics publications to date. (For a detailed account, see Umiyati, Reference Umiyati2021.)

1.2 Looking Forward to Africa

In recent years, research in forensic linguistics has grown in the Global South, with Africa among the geographic areas in which research has taken place. In southern Africa, particularly South Africa, the use of stylistic methods for authorship identification is well argued by Hubbard (Reference Hubbard1994, Reference Hubbard1995) in his work on linguistic fingerprinting. In the same vein, Kotzé (Reference Kotzé2007, Reference Kotzé2010) examined authorship identification in defamation cases, discussing opposing perspectives on forensic linguistics. A seminal work by Moeketsi (Reference Moeketsi1999a) on court interpreting explores the complexities of courtroom discourse in multilingual and multicultural settings, and her contribution is well noted in scholarship on legal interpreting. In ‘Language Rights, Intercultural Communication, and Law in South Africa’, Kaschula and Ralarala (Reference Kaschula and Ralarala2004) argue that while individual language rights are enshrined in the Constitution, no procedures exist to protect these rights in the public domain. The authors emphasise the absence of intercultural communication in courts, where Afrikaans and the Western cultural paradigm predominate, resulting in linguistic intolerance and communication breakdowns. In South Africa there is now a book series on the topic of forensic linguistics, with Volumes I–IV published from 2019 to 2024, and Volume V, Documenting Forensic Linguistics in the African Context: Perspectives in Language and Legal Practice being the current volume which is being finalised and due to be published in 2025. The series name is ‘Studies in Forensic and Legal Linguistics in Africa and Beyond’ (SF&LLA) (Ralarala, Kaschula, & Heydon, Reference Ralarala, Rodrigues, Ralarala, Kaschula and Heydon2019; Docrat, Kachula, & Ralarala, Reference Docrat, Kaschula and Ralarala2021; Ralarala, Kaschula, & Heydon, Reference Ralarala, Kaschula and Heydon2022; Kaschula, Ralarala & Heydon, Reference Kaschula, Ralarala and Heydon2023). These books are published under the auspices of the University of the Western Cape. This university has also approved the setting up of the African Centre for Applied Research in Forensic Linguistics (ACARFiL), which will begin operations in 2025. This builds on the existing institutional Research Chair in Forensic Linguistics and Multilingualism, which was established in 2022, the only one in Africa. During the last decade, we have witnessed an exponential growth in publications in the field, largely from southern Africa. Research has covered a wide range of specialist areas – courtroom discourse, police interviewing and record construction, hate speech, authorship attribution, and legal or court interpreting, as well as language and crime, among others.

In Malawi, studies in forensic linguistics started in 2015 at Mzuzu University, where it was offered as a single module for undergraduate students studying a Bachelor of Education (Language) (Kondowe & Mtanga, Reference Kondowe, Mtanga, Kaschula, Ralarala and Heydon2023). The module was introduced to challenge long-standing traditional approaches to linguistics studies. Later, the University of Malawi started offering some forensic linguistics modules to undergraduate students studying Bachelor of Arts in Law Enforcement and Leadership. A bigger shift was witnessed in 2022, when Mzuzu University introduced a postgraduate programme named Master of Arts in Applied Linguistics (Law Enforcement Discourse) (Kondowe & Mtanga, Reference Kondowe, Mtanga, Kaschula, Ralarala and Heydon2023). The programme has attracted and brought together students from different backgrounds such as linguistics, security studies, law, police, law enforcement, human rights, and communications studies. Wellman Kondowe appears to be one of the leading, if not the leading, scholars in this field in Malawi, having made significant contributions to forensic linguistics research and education in that country (Svongoro & Ralarala, Reference Svongoro, Kondowe, Kondowe, Chimwemwe and Madula2024).

In Namibia, forensic linguistics started through the establishment of Forensic Stylistics as part of a Stylistics module in 2017. In that year, the Department of Communication and Languages at the Namibia University of Science and Technology launched a Master of English and Applied Linguistics (MEAL) programme, with Forensic Stylistics forming part of Stylistics under the programme. Forensic Stylistics was concerned with the use of analytical techniques in legal and criminal matters, and involved a forensic stylistic analysis of written and spoken materials to determine and measure content, meaning, speaker identification, or authorship in Namibian legal contexts. Six MEAL candidates (later graduates) and their supervisors ventured to submit Forensic Stylistics research projects for the first time. A study by Ndatyapo (Reference Ndatyapo2022) titled ‘A Forensic Linguistic Investigation of Witness Statements on Murder Cases at Windhoek Police Station’ is an example of developments in the field in Namibia. Ndatyapo, an emerging forensic linguist in Namibia, is now embarking on her doctoral dissertation at the University of the Western Cape. This is a comparative study with the title as follows: ‘Researching Defamation of Character: A Forensic Linguistics and Comparative Study of Namibia and South Africa’.

There has been a very slow development of forensic linguistics in Zimbabwe, largely because the discipline has not been established as a field of study in the country. Nonetheless, literature on court interpreting has been prolific. Research on this topic in Zimbabwe has focused on five key themes: the evolution of court interpreting and language rights since Zimbabwe’s colonial era; training, employment requirements and the accreditation of court interpreters; the role of court interpreters and their work environment; the language of record and sight translation; and Sign Language interpreting (Svongoro & Kadenge, Reference Svongoro and Kadenge2015; Svongoro & Wallmach, Reference Svongoro and Wallmach2019; Matende et al., Reference Matende, Svongoro and Munyaka2022a; Ndlovu, Reference Ndlovu2023b). Studies in these topics generally concur that the multilingual courtroom in Zimbabwe challenges courtroom communication and potentially affects the administration of justice. The studies further show that Zimbabwe’s linguistic context requires that courts provide interpreters for ChiShona, IsiNdebele, and fourteen other officially recognised languages, to ensure that the rights of all persons are protected. In view of the country’s multilingualism, courtroom interpreting is a crucial aspect of Zimbabwe’s judicial system.

In Mozambique, the notion of access to justice and procedural fairness has been discussed in the forensic linguistics literature, with much of this work focusing on police interviewing as discussed in Section 4 of this Element. Some research concentrates on the narratives of suspects whose Portuguese proficiency is low or non-existent, and the extent to which such people are able to deal with the intricacies of the Mozambican legal system (Mabasso & Heydon, Reference Mabasso, Heydon, Ralarala, Kaschula and Heydon2022). Other studies have examined the linguistic environment in which police and justice agencies conduct interviews in domestic violence cases in the capital city, Maputo (Heydon & Mabasso, Reference Heydon and Mabasso2018). The findings of this research suggest that there is an urgent need for the development of tools to assist agency staff to explain legal terminology and processes in simple Portuguese or in local languages.

In East Africa, as in many other jurisdictions, most of the work done regarding forensic linguistics is in Kenya. This includes aspects of courtroom discourse, such as the use of performatives (Tyeng’o et al. Reference Tyeng’o, Kembo-Sure, Lonyangapuo, Satia and Ogada2015); speech acts in the courtroom (Mwangi, Kiguru, & Nthiga, Reference Mwangi, Kiguru, Nthiga, Ralarala, Kaschula and Heydon2022); courtroom interpreting (Odhiambo et al., Reference Odhiambo, Kavulani and Matu2013a; Kiguru (Reference Kiguru2010); and courtroom strategies (Satia, Reference Satia2013; Kamweru, Reference Kamweru2016; Kimani, Satia, & Kembo-Sure, Reference Kimani, Satia, Kembo-Sure, Ralarala, Kaschula and Heydon2022). Work on prison and police discourse remains sparse. On prison discourse, notable work has been done by Satia (Reference Satia2013) in which the author examined the way in which inmates in Kenyan jails use language to construct a positive identity. More recently, this author has examined the ways in which inmates speak about crime (study in press). Although there is no known record of published work on police discourse in Kenya, there is evidence of ongoing research on the subject. Beyond these traditional areas of forensic linguistics, there are works on language as evidence, exemplified by Odhiambo and Orwenjo (Reference Odhiambo, Orwenjo, Kaschula, Monwabisi and Georgina2023), who examine the linguistic features of terrorism notes; Kembo and Satia (Reference Kembo Sure and Satia2017), who explore vocabulary and grammar in hate speech cases in some Kenyan languages, as well as Wambura and Satia (Reference Wambura, Satia, Kaschula, Ralarala and Heydon2023), who examine the ways in which language is used to normalise and legitimate violence against women in Kuria as part of female genital mutilation (FGM) songs. Furthermore, new aspects of forensic linguistics, bringing in unique African concepts and perspectives, are being explored. Key among such studies are Satia and Maritim (Reference Satia, Maritim, Ralarala, Russell and Georgina2022), who examine the ways in which power and meaning are constituted and communicated in traditional African courts among the Arror people of Kenya (Mwangi, Kiguru, & Nthiga, Reference Mwangi, Kiguru, Nthiga, Ralarala, Kaschula and Heydon2022). These authors specifically look at conditions under which provocation may be invoked as a partial legal defence in murder cases involving witch lynching. Ngure and Nganga (Reference Ngure, Nganga, Ralarala, Russell and Georgina2022) examine how male disputants in Agikuyu traditional courts are disadvantaged because of topics referred to by elders in court proceedings, as well as the manner in which the elders preside over matters in the courts.

In North Africa, interest in forensic linguistics in Tunisia continues to grow in different research directions. In fact, Tunisia hosted the first African Regional Conference of the International Association of Forensic Linguists (2014) (12–14 December 2014, Sfax). Triki’s (Reference Triki2013) research on narratorial techniques in Tunisian police and court transcripts comes to mind. The study is foregrounded on the techniques of discourse presentation, using Tunisian police and court transcripts as units of analysis, with a particular focus on the extent to which police reports and minutes are faithful to the original. In this study, one of the findings is that errors in transcription potentially have devastating repercussions for the final verdict.

In Algeria, corpus linguistics has received great research interest, particular in the area of forensic linguistics. Research has examined the fact that Algerian Arabic dialects suffer from a lack of relevant speech corpora for speech recognition, and the need for a rich dialect corpus to deal with Algerian accent recognition. According to Zergat et al. (Reference Zergat, Selouani, Amrouche, Kahil and Merazi-Meksen2023), this area is a crucial feature of the field of Forensic Voice Comparison (FVC) systems in Algeria. In their work, ‘The voice as a material clue: A new forensic Algeria corpus’, Zergat et al. (Reference Zergat, Selouani, Amrouche, Kahil and Merazi-Meksen2023) present a new large-scale forensic Algerian speech corpus called Sawt El-Djazaïr. The language of investigation has been studied by Fares (Reference Fares2023), who analyses the linguistic techniques employed by Algerian investigating magistrates during suspect interrogations. In this study, the author concludes that Algerian investigating magistrates make use of conversational management to obtain evidence from criminal suspects. In Egypt, there is also the work of Marwa Mustafa (Reference Mustafa2020) who analyses terrorist manifestos, particularly those related to the Christchurch massacre in New Zealand.

In West Africa, Ghana, there is research interest in forensic linguistics, evidenced by Ansah and Darko’s (Reference Ansah, Darko, Ralarala, Kaschula and Heydon2019) work, ‘Justice in the mother tongue: The task of court interpreters in Ghanaian law courts.’ The findings reveal that court interpreters face linguistic and non-linguistic challenges that result in poor quality interpretation. According to Ansah and Darko (Reference Ansah, Darko, Ralarala, Kaschula and Heydon2019), inadequate interpretation is potentially detrimental to the outcomes of trials.

In Nigeria, studies in authorship attribution and identification have gained momentum. Machine learning techniques have improved the accuracy of authorship attribution, with contributions to this field made by Ayogu and Olutayo (Reference Ayogu and Olutayo2016), Babarinde and Oku (Reference Babarinde and Oku2020), and Modupe et al. (Reference Modupe, Celik, Vukosi Marivate and Olugbara2022). It emerges that machine learning has helped to ensure fair outcomes in intellectual property disputes. The analysis of language variations and stylistics in criminal profiling and authorship attribution is also essential to justice, as shown by Babarinde and Oku (Reference Babarinde and Oku2020). Other studies examine the level of awareness and application of forensic linguistic services in the Nigeria justice system, with specific reference to police stations and courts. The studies reveal a high level of awareness of forensic linguistics in the Nigerian criminal justice system, and confirm that forensic linguistic evidence is admissible in the Nigerian courts (Oguejiofor & Evbuomwan, Reference Oguejiofor and Evbuomwan2022).

In Central Africa, there is evidence of research in forensic linguistics in Cameroon. Dissake (Reference Dissake2021) wrote a seminal text titled Language and Legal Proceedings: Analysing Courtroom Discourse in Cameroon, investigating language-related problems that arise in courtroom discourse. In a further study on the topic, Dissake (Reference Dissake2022) argues that judicial discourse can potentially grant or deprive liberty to litigants, and that it is essential that the accuracy of courtroom discourse be improved. The findings of the study also reveal that judges’ self-assessment methods do not necessarily follow any standard, which can compromise court hearings. Other works in the field advocate for the legal recognition of national languages in all legal settings, with a view to ensuring linguistic accommodation for suspects and convicts with poor language proficiency in both English and French (Atindogbé & Dissake, Reference Atindogbé and Dissake2019). In this study on terminology development, the authors dismiss the fallacy that African languages have no capacity to handle legal matters.

1.3 Conclusion

The literature reviewed in this introductory section provides an overview of the progress of forensic linguistics in southern Africa, but also in East, Central, and North Africa, covering a total of ten countries. The review is by no means exhaustive. It is apparent that the development and advancement of scholarship and application in forensic linguistics are gaining momentum and that African scholars are contributing to ongoing research in this field. Some regions are ahead of others, but all regions present interesting, well-documented findings and perspectives, revealing uniquely African insights. With regard to southern Africa, the publication of the series by African Sun Press is an important development. The last book that was published is titled Language, Crime and Courts in Contemporary Africa and Beyond (2023). It contains chapters written by scholars from the following southern African countries: Malawi, Zimbabwe, Kenya, South Africa, Tanzania, and the Democratic Republic of Congo.

The next volume, forming part of the book series ‘Studies in Forensic and Legal Linguistics in Africa and Beyond’ (SF&LLA), combines the insights of researchers from all over Africa. This volume on language and the law contributes to development in this fascinating field, bringing together four interconnected thematic areas: Forensic linguistic evidence; Forensic linguistics prospects, knowledge and application; Language practice in the legal process and courtroom discourse; and Linguistic justice and pragmatics in Forensic Linguistics. The contributions of many expose the shortcomings in our linguistic legislative framework, with contributors offering practical solutions informed by new approaches and research methodologies to ensure the establishment of a linguistically inclusive legal system.

It is worth noting that regional and continental relationships in the field have shown that higher education institutions across the continent are vigorously tackling language issues in law and the exercise of justice. There is a great deal of interest in African languages and the linguistic and cultural diversity of African work and study environments, which are multilingual. Based on the evidence of so many researchers, it is reasonable to state that Forensic Linguistics education in Africa is essential for enhancing access to justice. This speaks directly to Sustainable Development Goal (SDG 16) which deals with access to justice. Education in this field is key to addressing the many language barriers that currently obstruct access to justice, particularly in post-colonial contexts.

In a nutshell, the field of forensic linguistics in southern Africa is shown, in these pages, to be lively, advancing, and relevant to Africa’s needs, while the diversity of excellent research suggests that African scholars are applying the discipline in diverse settings, thus enriching scholarship in the field. The discipline is perhaps better established in southern Africa, with a number of other regions following suite as suggested in this section. In the section that follows the language of record and proceedings in southern African courts will be presented and analysed.

2.1 Historical Development of Language of Record and Proceedings

Although Section 1 addresses the historical development of the discipline of forensic linguistics, it is necessary to outline the historical developments relating specifically to the language of record and proceedings policies of courts. This historical discussion foregrounds the constitutional, legislative, and policy developments.

Southern Africa’s history is deeply influenced by colonialism and European domination. This has directly influenced the language of record and proceedings in southern African courts and legal processes. There are seventeen countries in southern Africa with over seventy-two dominant languages as indicated herein. In alphabetical order, these are Angola, Botswana, the Comoros, the Democratic Republic of Congo, Eswatini, the Kingdom of Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia, and Zimbabwe. In this section we highlight the language of record and proceedings models of the countries we believe are representative of the region, which also have common threads.

Southern African countries were colonised by the English, Dutch, Portuguese, and Germans (in Namibia’s case). Countries such as South Africa were colonised by both the Dutch and the English, whereas the rest such as Zimbabwe, Zambia, and Malawi were colonised by the English. There were also the British protectorates such as Botswana, Eswatini (previously Swaziland), and the Kingdom of Lesotho. To some extent they had some autonomous rule, but always under the watchful eye of the British Empire. Angola and Mozambique were in turn colonised by the Portuguese. The result of all of this is that the legal systems in southern Africa are infused with both Roman-Dutch and English law, alongside African customary law. The languages of the colonisers quickly established themselves within these African communities (Kretzer & Kaschula, Reference Kretzer and Kaschula2022). The effects of this language planning are still felt in southern Africa today.

One can also look at the historical development of the language of record and proceedings in southern Africa from a sociolinguistic and legal perspective. In summary, the exoglossic colonial languages have been maintained as languages of record and proceedings throughout southern Africa. However, that said, there are some important country-specific and international frameworks that dictate the language of record and proceedings, beginning with the Universal Declaration of Human Rights (1948), which states that in any society there should be no discrimination on the basis of language within legal settings. This is similar to aspirational Constitutions of countries such as Zimbabwe and South Africa. Section 6 of the South African Constitution of 1996 now recognises twelve official languages, including South African Sign Language as of 2023, while the Zimbabwean Constitution recognises sixteen official languages, some of them such as isiXhosa being cross-border languages. There is also the International Covenant on International and Political Rights (1996) where article 14 guarantees the right to interpretation where the accused person is unable to understand the language of proceedings. The Framework Convention for the Protection of Minorities (1995) where it is noted in Article 10, subsection 3 that the rights of minorities are protected in courts of law (Docrat, Kaschula, & Ralarala, Reference Docrat, Kaschula and Ralarala2021).

There are a number of southern African counties such as Kenya and South Africa that are signatories to the above legislative frameworks. However, there is still the dominance of colonial languages as languages of record and proceedings. Malan (Reference Malan2009:41) states that there is an official and unofficial language of record in South African courts. Language used in an official capacity concerns the language of record. The language of record is the language in which the court proceedings are recorded and in which the judgment is written and delivered by presiding officers (Malan, Reference Malan2009:41). The unofficial use of language refers to the language(s) used by accused persons, litigants, and witnesses (Malan, Reference Malan2009:41). Official and unofficial usages are related to each other. If there is a monolingual language of record policy in place, an accused person who does not speak or understand the language is then solely reliant on an interpreter. Gibbons (Reference Gibbons2003:202) states that this can only be disadvantageous to a second language speaker who does not speak the language of the court. According to Cassim (Reference Cassim2003:25), it is a fundamental principle that persons not only have access to the courts of law, but they must also be able to understand proceedings.

The South African decision regarding the monolingual language of record also needs to be seen in its historical context where English and Afrikaans were initially the two official languages prior to 1994. In terms of language planning these two languages have been elevated in terms of language status, even after the advent of democracy in 1994 (Kaschula, Reference Kaschula2021). In the South African context, even though the Constitution is empowering in terms of multilingualism, in 2017 it was announced that the Heads of Courts had decided to use English as the sole official language of record. Making English the sole official language of record means that the court proceedings are conducted in English, and judgment and sentencing are delivered in English (Docrat, Kaschula, & Ralarala, Reference Docrat, Kaschula and Ralarala2021). Ironically, this decision was taken in the interest of transformation.

2.2 Impact of the Language of Record and Proceedings Policies on Litigants’ Language Rights

With the historical development and definitional aspects of the language of record policies advanced above, the focus of this section turns to the practical impact thereof on the constitutional language provisions and resultant language rights of litigants in criminal trials.

2.3 Futuristic Language of Record Policies for Southern Africa

There is a need to develop regional language policies for courts, to accommodate the official languages and the speakers of those languages (Docrat, Kaschula, & Ralarala, Reference Docrat, Kaschula and Ralarala2021). This balancing act would give effective meaning to the Constitutional language rights provisions and the practicalities of using multiple languages within various courts in a single country. This will require a number of actions to be taken through a consultative process between all stakeholders; this would avoid the current monolingual language of record top-down policy. The new language of proceedings and record policies would need to be informed by statistics emanating from various language audits of the judiciary, National Prosecuting Authority, Law Societies, and the annual general census language demographics. This would need to be revised on a five-yearly basis to accommodate language demographic changes.

It is short-sighted to associate language with race by assuming that the indigenous languages can only be spoken by Black people; that itself is a racial policy that needs to be circumvented. Through the discussions earlier, it is clear that current and prospective judges need to undergo language sensitivity and awareness courses as part of judicial training. This should happen on a continuous basis regardless of linguistic competencies.

2.4 Conclusion

The indigenous languages must continuously be used for bilingual judgment writing purposes to ensure the development of the languages, while also promoting and developing the languages in accordance with the constitutional provisions as well as for the purpose of fostering language equality and inclusivity of all official language speakers accessing the legal system. It may be that in time the pendulum in southern African courts may swing back to a more multilingual and inclusive language of record and proceedings. There are many similarities in existence across jurisdictions. Some country’s legal systems could benefit by looking at successful models that could be emulated and adapted. There may also be a need for heads of judiciaries to discuss similarities and differences in order to assess the best way forward in formulating a language policy and language practices that positively affect the rights of the majority. In the section that follows, issues pertaining to legal interpreting in southern Africa will be discussed.

3.1 Introduction

This systematic literature review-based section analyses and evaluates the literature available on legal interpreting in four southern African countries. By so doing, the direction provides a firm foundation for advancing knowledge and suggesting policy changes to improve the profession and practice of legal interpreting and, hence, access to justice for citizens in the selected countries. Broadly, legal interpreting is a branch of interpreting conducted when speakers of different languages have to communicate in legal or paralegal settings (Stern, Reference Stern, Malmkjaer and Windle2011). Although legal interpreting takes place in different contexts, this section focuses on a specific type of legal interpreting that is court interpreting. This section concentrates on court interpreting situations in four countries from southern Africa, namely Zimbabwe, South Africa, Malawi, and Mozambique. As observed from the literature searched, although similarities exist in the legal systems of the selected countries, it is important to note that each legal system has its own unique court procedures, requirements for court interpreters, and legal concepts and terms that sometimes have no equivalent in other languages (Moeketsi, Reference Moeketsi1999a, Reference Moeketsi1999b; Moeketsi & Wallmach, Reference Moeketsi and Wallmach2005). Southern Africa’s linguistic situation, where colonial languages are used as court languages, leads to a high demand for court interpreting. Most cases require language mediation, as suspects are often not competent speakers of the court’s languages. Magistrates’ Courts, where most criminal cases occur, primarily require interpreting in minority languages like English, Afrikaans, and Portuguese. This linguistic chaos poses challenges for interpreters, witnesses, and suspects. The migration dynamics in these countries further exacerbate these challenges, requiring interpreters to speak foreign languages spoken by migrant workers, refugees, and asylum seekers.

3.2 Setting the Scene: Court Interpreting in Southern Africa

A crucial component of the legal systems in Zimbabwe, South Africa, Malawi, and Mozambique is courtroom interpretation, especially in light of the historical background of colonialism and the multilingual environment. Therefore, regardless of the linguistic background of those involved in the judicial process, the function of interpreters is essential in ensuring that justice is accessible to everyone. According to Svongoro, judicial interpreting has advanced significantly in Zimbabwe, especially in multilingual courtrooms where clear communication is crucial (Svongoro, Reference Svongoro2024). The complexities of courtroom discourse necessitate a nuanced understanding of both language and legal processes. Court interpreters must, therefore, navigate these complexities to facilitate fair trials.

The significance of language rights is acknowledged in the 1996 and 2013 constitutions of South Africa and Zimbabwe, which have a direct bearing on judicial interpretation. For instance, Section 6 of the South African Constitution recognises eleven (now twelve) official languages and stipulates that everyone in the country must be able to communicate in their native tongue in court. Specifically, the Constitution of South Africa, Act 108 of 1996 at s35(3)(k) stipulates that ‘every accused person has a right to a fair trial, which includes the right to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language’ (Moeketsi & Mollema, Reference Moeketsi and Mollema2006:76). All these constitutional safeguards in Zimbabwe and South Africa’s constitutions, for example, are essential for guaranteeing that those who do not speak the court’s language can comprehend and take part in court proceedings (Quinot, Reference Quinot2024). The Promotion of Access to Justice Act in South Africa further emphasises the need for interpreters in court, stipulating that courts must provide interpreting services to ensure fair trial rights for all individuals, regardless of their language proficiency (Masiangoako, Reference Masiangoako2019).

The South African Courts Act, which describes the duties of court interpreters, is one of the other legal frameworks that regulate court interpreting in South Africa. During court hearings, interpreters are supposed to translate spoken language accurately and impartially in order to facilitate communication between the legal system and non-native English speakers (Kengni & Nkosi, Reference Kengni and Nkosi2023; Ndlovu, Reference Ndlovu2023b). This legislative requirement emphasises how important interpreters are to maintaining the values of justice and equity in the courtroom. However, despite the aforementioned constitutional and legal frameworks on language rights and the provision of court interpreting services, access to justice remains an unresolved issue because the legal systems of South Africa and Zimbabwe are based on the languages of the former colonisers (i.e., English for Zimbabwe and English/Afrikaans for South Africa).

The literature on court interpreting in Malawi indicates that in Malawi’s legal system English is used as the language of legal proceedings and records (Kishindo, Reference Kishindo2001; Nyirenda, Reference Nyirenda2014). However, in cases where the plaintiffs/defendants do not speak English, interpreters are provided. While the justice system makes provision for interpretation services for citizens who cannot speak English, there are two factors which militate against this state of affairs. First, Malawi is a highly non-literate country with an estimated non-literacy rate of 48 per cent (Kishindo, 2008).

Secondly, the majority of Malawi’s population, including those who do not speak English, faces difficulties in communication due to the language barrier. Interpreters are needed to facilitate communication between courts and limited English proficient individuals. However, in Malawi, court interpreters are often poorly trained, under-resourced, and unavailable, leading to trial postponements. Research highlights the importance of well-trained and equipped interpreters in legal settings, as they not only translate words but also preserve the essence and nuances of the original message, which is crucial in high-stakes legal situations (Barak, Reference Barak2021; Hale, Reference Hale2021).

In Malawi, the laws governing courtroom interpretation are gradually evolving. Although standards are in place, they may not always be applied consistently. Since many interpreters might not be sufficiently prepared for the difficulties of legal interpreting, the absence of official training programmes for interpreters makes matters more difficult (Chawinga et al., Reference Chawinga, Kapondera, Chipeta, Majawa and Nyasulu2019; Kondowe, Reference Kondowe, Ralarala, Kaschula and Heydon2022). This gap in training can lead to variations in the quality of interpreting services, ultimately affecting the judicial process.

Similar to the situations in Zimbabwe, South Africa, and Malawi, Mozambique is also a country which is characterised by a rich tapestry of over forty languages, including Portuguese, the official language, and various indigenous languages such as Makhuwa, Changana, Nyanja, Ndau, Sena, Chwabo, Tsonga and Tswa, Makhuwa, Sena, and Tsonga (Pereira, Reference Pereira2023). In order to promote communication between the court and others who might not speak Portuguese well, this language diversity calls for efficient interpreting services. In addition to translating words, interpreters also help close legal and cultural divides so that all parties can fully engage in the legal process and comprehend the proceedings (Hale, Reference Hale2021; Pereira, Reference Pereira2023).

Despite ongoing difficulties related to its multilingual context, Mozambique’s legal system offers a basis for judicial interpretation. The right to a fair trial, which includes the right to comprehend the proceedings, is guaranteed under the Mozambican Constitution. Article 62 (1) of the Constitution of the Republic of Mozambique stipulates that ‘The State shall guarantee that citizens have access to the courts and that persons charged with a crime have the right to defence and the right to legal assistance and aid’ (Constitution of the Republic of Mozambique, 2004:18). This provision clearly indicates that the Mozambican Constitution guarantees citizens the right to interpretation services and legal aid. However, the legal system, a blend of customary practices and civil law traditions, can be challenging to interpret due to the complexity of legal ideas and cultural nuances. This highlights the need for interpreters to possess a comprehensive understanding of legal jargon and language proficiency, as recommended by Ngubeni for South Africa, which also faces similar challenges (Ngubeni, Reference Ngubeni2023).

In the context of the issues raised earlier regarding language rights, the need for interpretation services and enhanced access to justice, this section, therefore, explores the legal framework governing courtroom interpreting in the aforementioned countries, the challenges faced by interpreters, the role of interpreters in ensuring justice, and the implications of language access in legal proceedings.

3.3 Court Interpreters’ Role in the Judicial Process

Court interpreters are crucial intermediaries between the judiciary and litigants who do not know the court’s official languages, such as English, Afrikaans, and Portuguese, which are used in Zimbabwe, South Africa, Malawi, and Mozambique. Their function goes beyond simple translation; they actively participate in the dynamics of the courtroom and use their interpretations to impact the proceedings.

As revealed in the literature on legal interpreting from Southern Africa, court interpreters serve as essential intermediaries between the judiciary and litigants who are unfamiliar with the court’s official languages, such as English, Afrikaans, and Portuguese (Lebese, Reference Lebese2013; Ngubeni, Reference Ngubeni2023; Svongoro & Kondowe, Reference Svongoro, Kondowe, Kondowe, Chimwemwe and Madula2024). This observation confirms Hale’s research about Australian courtrooms. Hale emphasises that interpreters are not passive actors; rather, they are essential in influencing the discourses in the courtroom and, ultimately, the outcome of cases (Hale, Reference Hale2021). This assertion is supported by Yi, who highlights the challenges interpreters face in maintaining accuracy and pragmalinguistic fidelity in their interpretations, particularly in high-stakes environments like courtrooms (Yi, Reference Yi2023). However, when one considers the literature on the role of court interpreters in Zimbabwe, South Africa, Malawi, and Mozambique, issues related to court interpreters’ role perception, and support given to court interpreters so that they can perform that duties optimally appear in the literature frequently (Lebese, Reference Lebese2013; Ngubeni, Reference Ngubeni2023; Svongoro & Kondowe, Reference Svongoro, Kondowe, Kondowe, Chimwemwe and Madula2024). Because of the lack of clarity on the court interpreters’ role, Lebese reports that in South Africa, such court interpreters find themselves performing tasks that are outside their scope of duties, for example, acting as magistrates (Lebese, Reference Lebese2013).

Court interpreters are essential to making sure that justice is carried out in South African courts. By enabling communication between parties who speak different languages, interpreters support, the Constitution’s guarantee of a fair trial. In criminal trials for example, where misunderstandings which emerge from language issues can result in erroneous convictions or acquittals, court interpreters play a crucial role (Lebese, Reference Lebese2013; Ngubeni, Reference Ngubeni2023). Moreover, interpreters contribute to the overall integrity of the judicial process by ensuring that all parties can fully understand the proceedings and present their cases effectively.

Still on South Africa, the role of court interpreters is equally significant in civil cases. Court interpreters assist in mediating disputes, ensuring that all parties can articulate their positions and understand the implications of legal decisions (Maphosa & Nhlapo, Reference Maphosa and Nhlapo2020). This function is particularly important in cases involving vulnerable populations, such as migrant workers, asylum seekers and refugees, or individuals from marginalised communities, who may already face systemic barriers to accessing justice (Maphosa & Nhlapo, Reference Maphosa and Nhlapo2020). Researchers in the South African jurisdiction also view court interpreters in South Africa’s justice system as cultural brokers, providing context and nuance that may not be captured in direct translations. This cultural understanding can enhance the accuracy of interpretations and contribute to a more equitable legal process (Moeketsi, Reference Moeketsi1999a, Reference Moeketsi1999b; Moeketsi & Wallmach, Reference Moeketsi and Wallmach2005). As such, the role of interpreters extends beyond mere translation; they are integral to the functioning of a just legal system.

Similar functions to those reported for court interpreters in South Africa and Zimbabwe are depicted in the literature on the function of court interpreters in Malawi. In Malawian courtrooms, court interpreters are essential agents of communication that guarantee all parties understand the proceedings. They are not spectators; their interpretations have a big impact on the outcome of cases. The fact that interpreters have to deal with intricate legal jargon, technical terms, and cultural nuances, which can compromise the precision of their interpretations, emphasises their active role (Barak, Reference Barak2021). The interpreter’s performance is critical, as inaccuracies can lead to misunderstandings that may compromise the fairness of the trial.

However, in the jurisdictions of the countries under review, research reports that the lack of legal terminology in many languages poses a significant challenge to accurate interpretation, particularly in cases where an accused’s freedom, rights, or even their good name is at stake (Moeketsi & Mollema, Reference Moeketsi and Mollema2006; Svongoro & Wallmach, Reference Svongoro, Wallmach, Ralarala, Kaschula and Heydon2022; Ngubeni, Reference Ngubeni2023). As a result, court interpreters in these jurisdictions are often accused of incompetent interpreting and bad practices which adversely affects access to justice (Moeketsi & Mollema, Reference Moeketsi and Mollema2006; Docrat, Reference Docrat2022)

3.4 Challenges Faced by Court Interpreters

The literature reviewed on legal interpreting in the selected Southern African countries also reveals that despite the critical role they play, courtroom interpreters in Zimbabwe, South Africa, Malawi, and Mozambique encounter numerous challenges (Kishindo, 2008; Lebese, Reference Lebese2013; Usadalo & Kotzé, Reference Usadalo and Kotzé2015; Matende et al., Reference Matende, Svongoro and Munyaka2022a & Reference Matende, Mugari and Gotosa2022b). These include the intricacies of legal language, cultural nuances, the work environment, and the psychological pressure of real-time interpretation.

Usadolo and Kotzé (Reference Usadalo and Kotzé2015) also report about foreign language court interpreters in South Africa. They document the challenges faced by court interpreters in cross-border languages, such as Chisena and Afrikaans, when interpreting between neighbouring countries. The study suggests that interpreters may not be adequately informed about sociocultural issues and the different orthographies used for the languages, raising the need for court interpreters to be well-informed about relevant circumstances of each case and conduct pre-trial interviews to mitigate these challenges (Usadalo & Kotzé, Reference Usadalo and Kotzé2015). Furthermore, the sociopolitical context in the four countries as explored by Verheul complicates the atmosphere in which interpreters operate, often leading to additional stressors that can affect their performance (Verheul, Reference Verheul2020, Matende et al., Reference Matende, Svongoro and Munyaka2022a).

In all the four countries, court interpreters face the challenge related to the need for high levels of accuracy and the pressure of working in high-stakes environments (Matende et al., Reference Matende, Svongoro and Munyaka2022a). However, the intricacies of legal language, combined with the sociocultural contexts of the parties involved, can lead to pragmatic challenges in interpretation (Yi, Reference Yi2023). Furthermore, interpreters often face the dilemma of balancing fidelity to the source language with the need to convey meaning in a culturally appropriate manner (Moeketsi, Reference Moeketsi1999a; Moeketsi & Wallmach, Reference Moeketsi and Wallmach2005). This balancing act is crucial, as misinterpretations can have serious legal ramifications.

In South Africa, for example, despite the robust legal framework governing court interpreting, the court interpreting profession in South Africa still faces the shortage of qualified interpreters, particularly in rural areas where access to legal services is limited and in cases requiring foreign language interpreters (Usadolo, Reference Usadolo2010). This shortage can lead to delays in court proceedings and may compromise the quality of interpretation, ultimately affecting the outcomes of cases. Furthermore, interpreters often work under high-pressure conditions, which can lead to stress and burnout, impacting their performance (Matende et al., Reference Matende, Svongoro and Munyaka2022a).

Another challenge revealed in the literature about South Africa but also applies to Zimbabwe, Malawi, and Mozambique is the lack of standardised training and certification for interpreters. While some interpreters may possess linguistic skills, they may lack the specialised training required to navigate the complexities of legal terminology and courtroom procedures (Ngubeni, Reference Ngubeni2023). This gap in training can result in misinterpretations that could have serious implications for the parties involved in legal proceedings.

Additionally, the sociopolitical context of South Africa, characterised by historical injustices of apartheid and ongoing inequalities, can influence the dynamics of courtroom interpreting. Interpreters may encounter biases or prejudices from legal professionals or court officials, which can hinder their ability to perform their duties effectively. This environment necessitates a greater awareness of the social implications of interpreting work and the need for interpreters to advocate for their rights and the rights of those they serve. Docrat and de Vries (Reference Docrat, de Vries, Ralarala, Kaschula and Heydon2022) also report about the continued marginalisation and politicisation of the African languages in the South African legal system occurring under the guise of transformation, which may also pose challenges for court interpreters who will have to work in such an environment.

Still on the sociopolitical environment in which court interpreters perform their duties, the literature reviewed reveals that the court interpreting profession in Southern Africa is influenced by linguistic diversity, cultural practices, socio-economic, and political factors. In Zimbabwe, for example, the available literature reports that political tensions, judicial corruption, and economic instability can create mistrust and fear, affecting individuals’ willingness to engage with the legal system (Verheul, Reference Verheul2020). Referring to the malpractices and political interference in judicial practices at Rotten Row Magistrates’ Courts in Zimbabwe, Verheul says, ‘Rotten Row is Rotten to the Core’ (Verheul, Reference Verheul2020: 9). Interpreters must, therefore, be aware of these dynamics to navigate their roles effectively. In Malawi, cultural competency is crucial for accurate interpretations (Kishindo, 2008), while in Mozambique, cultural practices and beliefs can influence legal perceptions and interactions. Culturally competent interpreters can handle legal terminology and ensure each party feels valued and understood during legal proceedings. A similar situation is also reported in the Kenyan jurisdiction (O’Nyangeri, Habwe, & Omboga, Reference O’Nyangeri, Habwe and Omboga2022).

The literature on court interpreting in Mozambique also reveals multiple challenges. Most of the challenges reported can impact the quality of interpreting services provided in courts of law. As reported about South Africa, one significant challenge about court interpreting in Mozambique is the lack of standardised training programmes for interpreters, which leads to varying levels of proficiency and understanding of legal concepts among practitioners. This inconsistency can result in misinterpretations that affect the outcomes of legal proceedings. Moreover, the cultural context in which legal terms are used can differ significantly between languages, making it essential for interpreters to navigate these differences skilfully (Kishindo, 2008; Usadolo, Reference Usadolo2010; Usadalo & Kotzé, Reference Usadalo and Kotzé2015; Matende et al., Reference Matende, Svongoro and Munyaka2022a).

Another challenge common in Mozambique is the limited availability of resources, including access to legal dictionaries and glossaries in indigenous languages. This scarcity can hinder interpreters’ ability to provide accurate translations, particularly in complex legal cases where precise terminology is crucial. Additionally, the increasing use of technology in legal proceedings, accelerated by the COVID-19 pandemic, introduced new dynamics in interpreting, such as remote interpreting, which may not always be conducive to effective communication (Pereira, Reference Pereira2023).

Finally, the literature highlights the ethical challenges faced by court interpreters globally, including confidentiality, impartiality, and accuracy, and the need for professional standards to ensure justice, particularly in Zimbabwe, where the legal system is still developing (Matende et al., Reference Matende, Svongoro and Munyaka2022a). In Malawi, ethical considerations are crucial, as interpreters are bound by a code of ethics emphasising confidentiality, impartiality, and accuracy (Kishindo, 2008; Nyirenda, Reference Nyirenda2014). However, high-stakes environments can lead to ethical dilemmas, especially when interpreting statements that may be prejudicial or inflammatory. Thus, how court interpreters navigate these ethical challenges is essential for maintaining the integrity of the judicial process.

3.5 The Impact of Interpreting Innovations and Technology on Court Interpreting

In line with the provisions of South Africa’s Constitution which guarantees the right to be tried in a language one understands or have proceedings interpreted in that language if possible, South Africa introduced an innovative programme aimed to enhance the quality of interpretation services so as to ensure increased access to justice for those individuals court interpreters mediate. Moeketsi and Mollema (Reference Moeketsi and Mollema2006) report about the concept of Perfect Interpreting Practice (PIP) which was developed in South Africa with the aim of addressing the poor quality of interpreting common in South Africa’s courts and transforming the service and fostering a culture of quality, accountability, and continuous improvement.

The integration of technology into the judicial process has transformed court interpreting in Zimbabwe, Malawi, and Mozambique. In Zimbabwe, for example, the adoption of digital platforms, such as the Integrated Electronic Case Management System (IECMS), aims to streamline court operations and improve access to justice (Poshai & Vyas-Doorgapersad, Reference Poshai and Vyas-Doorgapersad2023). In Malawi, Chawinga et al. (Reference Chawinga, Kapondera, Chipeta, Majawa and Nyasulu2019) also report about how the move towards e‐judicial services will impact on justice delivery in Malawi. However, the reliance on technology also presents challenges, particularly in ensuring that interpreters can effectively communicate in virtual settings. The technology-related challenges reported about court interpreters in Zimbabwe are similar to those reported by Yi’s research on remote interpreting in Chinese courtrooms. Yi’s study highlights the difficulties interpreters face in maintaining accuracy and clarity when working through video conferencing tools, which have become increasingly common since the outbreak of the COVID-19 pandemic (Yi, Reference Yi2023).

Although the previous paragraph indicates that southern African countries are making strides in transforming court interpreting through technology integration, advancements in remote (videoconferencing) interpreting (RI) are still limited. RI has grown significantly in Europe and the Americas, with large institutions like the United Nations and the European Union using it for simultaneous interpreting (Gloria, Reference Gloria2018). The International Association of Conference Interpreters (AIIC) published guidelines on distant interpreting after the COVID-19 pandemic. However, remote work adds cognitive loads and communication challenges, such as screen fatigue, increased stress, limited contextual information, noise exposure, and difficulties in rota teamwork (Liu, Reference Liu2022). These issues are often not included in existing interpreting curricula, and research on these areas is limited. Additionally, many trainers may not have worked on RI platforms themselves, making it challenging to train the next generation of interpreters.

Apart from the aforementioned, the lack of literature on computer-assisted interpretation (CAI) in Southern Africa indicates a lack of adoption of this technology. CAI aims to improve interpreters’ productivity through tools like terminology management solutions, notetaking applications, and voice-to-text devices. Terminology management tools are the most widely used CAI solutions, with InterpretBank being a popular example. However, existing CAI terminology tools are platform-dependent, time-consuming, and require training and practice (Claudio, Reference Claudio and Fantinuoli2018; Gloria, Reference Gloria2018). Research on the role of CAI tools for interpretation is limited, but some studies suggest that under specific circumstances, they may improve booth quality and reduce cognitive load during simultaneous interpreting.

Looking ahead, artificial intelligence (AI) is gaining momentum in interpreting, with the goal of replacing human interpreters with machines. Current AI solutions include automatic speech recognition, machine translation, and speech-to-text synthesis (Claudio, Reference Claudio and Fantinuoli2018; Gloria, Reference Gloria2018; Liu, Reference Liu2022). However, although these systems are yet to be tried in the southern African countries reviewed in this section, these systems have struggled to achieve quality and usability in real scenarios where they are under trials. The AIIC in the UK and Ireland, for example, organised online events on AI and interpreting, presenting scenarios where machine interpreting solutions could be applied. These solutions could be particularly useful in public service interpreting settings, where interpreters face challenges like reduced demand, budget constraints, and English as the default language.

3.6 Multilingualism and Its Implications for Access to Justice

Zimbabwe’s linguistic diversity necessitates a robust framework for court interpreting. The country’s official languages include English, Shona, and IsiNdebele, among others, which complicate the legal landscape. While Zimbabwe recognises sixteen official languages, Zimbabwe’s language of record policy contradicts this recognition. In courts of law, English is the language used for proceedings and records, including during police-suspect/witness interviews at police stations. This language of record policy is seen as having serious implications for access to justice by the majority of Zimbabweans who speak indigenous languages. Speakers of indigenous languages continue to encounter injustices and prejudices while recording witness accounts at police stations (Muza, Reference Muza2008).

The implications of multilingualism and language access in legal proceedings are far more profound in South Africa than in Zimbabwe and Malawi. In South Africa, where many individuals may not speak English or Afrikaans, the dominant languages of the legal system, language barriers can significantly hinder access to justice (van Niekerk, Reference van Niekerk2015; Namakula, Reference Namakula2023). The inability to understand legal proceedings can lead to feelings of alienation and distrust in the judicial system, further perpetuating social inequalities (Muza, Reference Muza2008). Another concern about South Africa’s justice system which poses challenges on the provision of interpreting services is South Africa’s language of record policy brought to light by studies conducted in South African courtrooms and police stations (van Niekerk, Reference van Niekerk2015; Docrat & Kaschula, Reference Docrat and Kaschula2024). These researchers concur that, even though the nation’s English-only language of record policy has been a part of the South African legal system since 2017, it still prevents speakers of other languages from accessing the justice system fully as they have to participate in the justice system through an intermediary.

Moreover, language access issues can have tangible consequences for the outcomes of legal cases. Research has shown that individuals who do not have access to competent interpreting services are more likely to experience negative legal outcomes, including longer sentences or unfavourable rulings (Svongoro & Kadenge, Reference Svongoro and Kadenge2015). This reality underscores the urgent need for systemic reforms to improve language access in South African courts. As suggested by Svongoro, justice systems in Africa need to strive for the provision of interpreters who are not only linguistically proficient but also culturally competent (Svongoro, Reference Svongoro2024). This cultural awareness is crucial for interpreters to accurately convey the intent and nuances of the original statements made in court.

To address these challenges, stakeholders must advocate for increased funding and resources to support the training and recruitment of qualified interpreters (Maphosa & Nhlapo, Reference Maphosa and Nhlapo2020). Additionally, the establishment of standardised training programmes and certification processes can enhance interpreters’ skills in legal language and courtroom dynamics. Raising awareness about language access is crucial for legal professionals and court officials. Emphasising interpreters’ value and the impact of language barriers on justice can create a more inclusive legal environment (Usadalo & Kotzé, Reference Usadalo and Kotzé2015; Docrat, Reference Docrat2022).

As for Malawi, the quality of court interpreting directly impacts the access to justice for individuals who do not speak Portuguese. When interpreters are not adequately trained or when interpreting services are unavailable, individuals may struggle to understand the legal proceedings, leading to potential miscarriages of justice. Ensuring that all parties have access to competent interpreting services is essential for upholding the principles of fairness and equality in the legal system (Kishindo, 2008). Legal aid organisations and advocacy groups can play a crucial role in raising awareness about the importance of interpreting services and advocating for policy changes that support their implementation.

3.7 Challenges in the Training for Interpreters

The training of courtroom interpreters is essential for enhancing the quality of interpreting services in all legal settings. In Zimbabwe, literature reveals that there are still gaps in the training and employment requirements for court interpreters. The current in-service training programme for court interpreters does not address the unique challenges posed by the legal environment, as highlighted in prior studies (Svongoro & Kadenge, Reference Svongoro and Kadenge2015; Svongoro, Reference Svongoro2024). Research also advocates for the reconceptualisation of the interpreter’s role to include a focus on sociocultural dynamics could also be relevant for the Zimbabwean context (Ndlovu, Reference Ndlovu2023b; Svongoro & Kondowe, Reference Svongoro, Kondowe, Kondowe, Chimwemwe and Madula2024). Rather than focusing on language skills only, effective training should also encompass an understanding of legal terminology, courtroom procedures, and ethical considerations.

Similar to the Zimbabwean situation, the literature on Mozambique also highlights the need for comprehensive training and professional development programmes to address the challenges faced by court interpreters, focusing on enhancing linguistic skills, legal knowledge, and cultural awareness through workshops, seminars, and mentorship opportunities (Pereira, Reference Pereira2023). Furthermore, collaboration with legal institutions and universities could facilitate the development of standardised curricula that address the specific needs of court interpreters in Mozambique.

3.8 Future Directions for Courtroom Interpreting in Southern African Courtrooms

Looking ahead, the future of court interpreting in southern African countries discussed in this section will likely be shaped by ongoing technological advancements, the fast-evolving migration trends, and the linguistic and legal landscape in the countries. The integration of blockchain technology used in other parts of the world, as discussed by Kumar, Kumar, and Joshi (Reference Kumar, Kumar and Joshi2023), presents opportunities for enhancing transparency and efficiency in court operations, which could also benefit interpreting practices (Kumar, Kumar, & Joshi, Reference Kumar, Kumar and Joshi2023). However, it is crucial to ensure that these technological innovations do not compromise the quality of interpreting services.

Looking at Malawi, for example, the future of court interpreting will likely be shaped by ongoing reforms in the legal system and advancements in technology. There is a growing recognition of the need for standardised training programmes for interpreters to enhance their skills and ensure consistent quality across the board (Chawinga et al., Reference Chawinga, Kapondera, Chipeta, Majawa and Nyasulu2019; Kondowe, Reference Kondowe, Ralarala, Kaschula and Heydon2022). Additionally, as the legal landscape continues to evolve, interpreters will need to adapt to new challenges and opportunities presented by technological advancements.

For Mozambique, there are several key areas for development in court interpreting. First, increasing collaboration between legal institutions, interpreter training organisations, and community stakeholders can foster a more integrated approach to interpreting services. Furthermore, it will be crucial to use technology to improve interpreting procedures while making sure interpreters are properly trained in its use in order to adjust to the changing legal environment. Finally, ongoing research into the effectiveness of interpreting services and their impact on legal outcomes will be critical for informing future policies and practices.

3.9 Conclusion

The literature reviewed in this section has shown that court interpreting is a multifaceted field that requires a deep understanding of language, culture, and the legal system. This section has shown that the challenges faced by interpreters are significant, yet their role is indispensable in ensuring that justice is accessible to all (Ndlovu, Reference Ndlovu2023b). In addition, this section has also shown that as the judicial landscape continues to evolve, ongoing training, ethical considerations, and the integration of technology will be vital in enhancing the effectiveness of court interpreting in all the countries discussed in this section.

Concerning South Africa, for example, this section has shown that court interpreting is a vital aspect of the legal system that directly impacts the administration of justice. The legal framework provides a foundation for language rights, yet significant challenges remain in ensuring effective interpretation services (Usadalo & Kotzé, Reference Usadalo and Kotzé2015; Docrat, Reference Docrat2022). South Africa must prioritise language access in legal proceedings, invest in interpreter training, advocate for systemic reforms, and foster inclusivity within the legal system to address its complex linguistic landscape and the legacy of apartheid, thereby achieving true justice for all citizens.

Regarding Malawi, this section has shown that court interpreting is a multifaceted and dynamic field that is essential to guaranteeing that everyone, regardless of language proficiency, has access to justice (Kishindo, 2008). Interpreters in Malawi face ongoing challenges due to evolving legal and technological landscapes. Despite these challenges, their role remains crucial in fostering understanding and access to justice within the courtroom, emphasising the need for ongoing training and support.

In Mozambique, judicial interpretation is a complex matter that necessitates careful evaluation of language, cultural, and legal aspects (Pereira, Reference Pereira2023). The literature on court interpreting in Mozambique highlights the need for comprehensive training, technology integration, and cultural competence. Addressing these issues can improve access to justice and ensure a just legal system. The future of court interpreting in Mozambique will be shaped by ongoing research and language rights advocacy.

In the following section issues pertaining to police interviewing techniques will be critiqued.

4.1 Introduction

The need to ensure that fair justice is delivered in multilingual and multicultural contexts such as southern Africa has been a major challenge whereby selective and discriminating language policies adopted by the countries concerned are to blame for pushing potential stakeholders, particularly vulnerable suspects, to risk unfair imprisonment or other forms of penalties. Despite the discipline of forensic linguistics being particularly new to Africa and to southern Africa in particular, there has been growing research conducted by emerging scholars in the field. These young academics have brought to light the seriousness of the problems and the challenges raised by the adoption of language policies that hinder fair delivery of justice for speakers of languages other than those selected for the justice system.

Bearing in mind that overall, in the lawyers’ and police officers’ viewpoint, multilingualism is the major source of communication difficulties and hence the chaos occasionally facing legal proceedings, this section attempts to explore the origins of police interviewing in southern Africa and also problematises the impact caused by the adoption and use of non-inclusive language policies on speakers of minority or non-official languages, and also attempts to raise awareness about the role played by the attitudes police officers adopt when dealing with the aforesaid people. Qualitative data from experiences from a few southern African countries will be used to demonstrate why African multilingualism should halt from being viewed as a curse put on linguistically disadvantaged people in police investigative interviewing.

As stated in Section 1, the history of the forensic discipline in southern Africa is very recent, and it was probably formally started with the work by Moeketsi (Reference Moeketsi1999a & Reference Moeketsi1999b). In this work, although the focus was not exactly on police interviewing strictu sensu, she raised the problem on the role of interpreters in multilingual South Africa, a country with eleven official languages at that time [now with twelve official languages after the South African sign language was added], in which nine of these languages are African languages. Despite this, and likewise in other southern African countries, only two languages are used in the justice system, thus demanding the use of professional interpreters as indicated in the previous section. More recently, other countries in the region, such as Mozambique, Zimbabwe, and Malawi also started their engagement in the field of forensic linguistics, despite not particularly focusing in police investigative interviewing.

The African continent, particularly in its sub-Saharan area, is widely known for its multilingualism and multiculturalism shared by its various countries. This heritage, which has been alive for centuries, is viewed by linguists, anthropologists, sociologists, and scholars of the various fields of knowledge in the social sciences and humanities as a precious source of primary data for their research due to its uniqueness. Nonetheless, the fact that most sub-Saharan African countries have in general inherited a language of the former colonial power, a language which is not shared by the majority who are speakers of an African language as their mother tongues, poses a huge challenge particularly when it comes to fair delivery of justice.

Indeed, for years, sub-Saharan African people as a whole and southern African communities in particular have always had to carry their shoulders the burden of coping with an imposed language of the former colonial power, which is often alien to them. This language, which is a language of a minority elite, is eventually the sole official language and, therefore, the only language of the judicial system. In the particular case of former Portuguese colonies [and unlike in former British countries] and most certainly in former French colonies as Chimbutane (Reference Chimbutane2016) indicates, the situation is even worse as communities had to live under the so-called assimilationist policy. This policy consisted of discouraging indigenous people from speaking their own mother tongues and also to abandon all of their cultural values and embrace the language and habits of the ‘civilised’ man. Under the aforementioned policy, Mozambicans in particular were therefore denied their culture and the right to speak their own languages which would then be labelled as the ‘dogs’ languages’ or the ‘languages of the uncivilized people’.

In most countries in sub-Saharan Africa, the prevailing state of affairs during the colonial times was then replicated after independence with a huge impact in the delivery of justice for the majority of vulnerable people for whom the sole official language was and still is alien to them. In former Portuguese colonies, the ruling regimes drafted Constitutions mostly based on the principles of the laws enforced in the European colonial power. In some cases, the language issue in the first Constitutions of these countries was left unspecified in what was known as avoidance of policy formulation in Bamgbose’s (Reference Bamgbose1991) terms or even as ‘taboo’ as Lopes (Reference Lopes2004) argues. In Mozambique, for instance, despite the fact that neither the 1975 Constitution nor its revised version from 1978 made a statement on the language situation, the use of African languages in official settings was (and still is to some extent) implicitly forbidden.

As it is known, former British colonies in Africa have gone through a slightly different path as far as the language policy issue is concerned. Whereas in Portuguese-occupied territories the prevailing strategy was the aforesaid assimilationist policy, in British colonies indigenous languages were ‘tolerated’ to some reasonable degree, though their use would be very limited to their communities as no promotion would almost never occur at the official level. Nonetheless, since education is the key for development, most of these countries adopted some kind of mother tongue education before and after independence that enabled the development of the individual languages (Ghana, Sierra Leone, Zimbabwe, South Africa, just to mention a few). This relative language development, however, could not persuade the colonial authorities to accept their use in official context such as in the judicial system.

4.2 Language Policies and Fair Delivery of Justice

As mentioned before, the language policies adopted by most countries in the sub-Saharan Africa are very selective as to ensure fair delivery of justice, particularly for speakers of minority languages. This phenomenon seems to affect people in several ways in both former Portuguese and British colonies. Heydon and Mabasso conducted research in Maputo, the capital city of Mozambique, which aimed at ascertaining how domestic violence (DV) cases were reported by victims, mostly non-speakers of Portuguese, the official language and the language of the justice system. Domestic violence has been one of the major crime types that on-duty police officers are increasingly required to address in most police stations in Mozambique, particularly in the main cities such as the capital Maputo and its outskirts. In 2009 a Bill on DV was passed by the Mozambican Parliament, which explicitly aims at protecting women and girls [not men] from being assaulted by men (Act no. 29/2009).

Despite the aforementioned legal tool, language constraints still hinder victims’ effort to implement their rights as the law is written in a language which is alien to them. There is indeed a potential for miscarriages of justice to occur in police interviews in Maputo due to the linguistic diversity of suspects and their lack of proficiency in Portuguese, the official language of Mozambique. It should therefore be borne in mind that ‘… lack of proficiency in a State’s official language can prevent access to justice’ (Gibbons, 2003a:211–221).

In Maputo, victims face language-related obstacles when making reports about domestic violence to a range of justice agencies. These are their ultimate refuge as they no longer rely on the police, mostly for being intolerant towards their language limitations. Lawyers and police officers view lack of knowledge of rights by DV victims not as a problem at all because, overall, they do not ‘… need to understand the law’ (Heydon & Mabasso, Reference Heydon and Mabasso2018).

The earlier statement by a lawyer [they don’t need to understand the judge] is a clear pointer that it is believed among that particular group of legal professionals that multilingualism as a social and cultural phenomenon is problematic and rather something to be ignored and that victims only need to hear what their legal representatives will tell them about the progress of their cases. Indeed, lawyers and legal professionals in general are known for their reluctance and keenness to defend the interests of their group at any cost. This could explain why, for instance, plain language movements across the world usually face opposition when approaching the judicial authorities to present proposals of simplified varieties of pieces of the legal language; such was the case of the simplified version of police cautions in Australia (Gibbons, Reference Gibbons2001).

4.3 The Need for Interpreters

In Mozambique, for instance, where Portuguese is the only official language, very often police officers and judges are challenged by the need to comply with the legal provisions on language, on the one hand, and, on the other hand, the need to drive the case to a verdict particularly by obtaining a confession or a statement from the suspect/ defendant. Very often, these people do not speak the language of the justice system and are not proficient enough to face either an interrogation at a police station in a language that is alien to them.

As it has been suggested elsewhere, the judicial system faces a dilemma as a consequence of the single official language policy in multilingual countries, on the one hand, and the lack of police station and courtroom interpreters on the other hand. There are cases where despite a judge being a speaker of the defendants’ language, in an attempt to comply with the legal provision on the matter, they would struggle to keep the conversation in the official language. Cases have been also reported (Mabasso, Reference Mabasso, Ralarala, Kaschula and Heydon2019) where the defendant understands the questions they were asked in the official language, but they prefer to present their side of the story in their mother tongue, the only code they can master with ease.

4.4 English as the Only Language of Record

This section is further supported by Section 2 of this Element, which deals with the issue of language of record in more detail. South Africa is another country where multilingualism has been seen as a challenge for the judicial system and fair justice delivery. Section 6 of the 1996 Country’s Constitution states as follows on the language issue:

1. (1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.

2. (2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.

At first sight both subsections (1) and (2) clearly provide a comprehensive type of language policy whereby the African languages are given prominence and it is here recognised the need for the rapid development of their status in order to be used alongside English and/or Afrikaans. Docrat and Kaschula (Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019) and also De Vries and Docrat (Reference Docrat2019) in their recent studies have problematised the language choice by the judicial authorities, in which English has been given greater prominence than the other ten official languages, despite the aforementioned constitutional provision.

The authors’ major concern is related to the fact that a directive has been issued in which all South African High Courts should adopt English as the only language of record, despite the country’s Constitution additionally acknowledging the other ten languages as official alongside English. All the eleven official languages (now twelve), according to the South African Constitution, should be treated equally in all public domains, including the judicial system. Moreover, selected university language policies, namely the University of Free State (UFS), University of Pretoria (UP), University of Cape Town (UCT), University of KwaZulu-Natal (UKZN), University of Stellenbosch, and Rhodes University, have been vastly critiqued as to how they fail to challenge the maintenance of the status quo as far as the language of court record is concerned (Docrat & Kaschula, Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019; Docrat et al., Reference Docrat, Kaschula and Ralarala2021).

Docrat and Kaschula (Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019) indicate as the major ground for their argument the fact that South Africa’s bilingualism and multilingualism are not being given their deserved relevance when it comes to determining the language of record. English remains the only language of record, and the other ten official languages are left behind. Unfortunately, as they put it, the aforementioned selected country universities, with UKZN as an exception, do not play their role to influence language of record policymakers to also include indigenous languages as languages or record. Furthermore, Docrat and Kaschula (Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019) pointed out that university language policies are challenged to adopt policies that are reflective of the language demographics of the provinces where they are located and the broader demographics of South Africa.

Another key point raised by both authors is that law faculties and African Language Departments should collaborate in formulating courses that are of benefit to students in a professional context. In their view, this would persuade law makers to include skills in at least one African language as key requirement for legal professionals. The authors recommended that South African authorities consider collaboration with forensic linguists in order to advise the process of formulating sound policies where language rights of potential litigants would be safeguarded (Docrat & Kaschula, Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019).

Further north, and despite Ghana being a country outside the limits of the southern African region, it is also a multilingual country, with both societal and individual multilingualism also facing challenges when it comes to fair deliver of justice, according to a recent study by Ansah and Darko (Reference Ansah, Darko, Ralarala, Kaschula and Heydon2019). As for the language issue in the justice system, the country’s 1992 Constitution, Article 19(2), states as follows:

A person charged with criminal offence shall

Similarly, to South Africa and apart from being the language of the court, English is also the language of record in Ghana. Most importantly, among the seventy-three indigenous languages out of eighty-one languages spoken in the country, nine are sponsored by the Government. Despite this, the hegemony enjoyed by English is undeniable, particularly in the justice system. In other words, and like in many other multilingual countries in Africa, the language of the former colonial power is still regarded as the most reliable to conduct court hearings and keep records.

4.5 Legal Interpreters as Gap Builders

Even if more inclusive language policies are to be approved in multilingual and multicultural southern Africa, and therefore their use in the judicial system, issues will still remain unresolved, namely the need to work out the necessary legal terminology in African languages on the one hand, and the need to make the message as much understandable as possible, on the other hand. This is in part because legal genres have always been known for their excessive use of tortuous syntax, very long sentences, circumlocutions, prepositional phrases, the use of Latinisms, and other forms of archaisms, in an effort to protect legal professionals and also as a manifest of its elitism and distance towards the general lay people (Bathia, Reference Bathia and Gibbons1994). This is the point where universities in which degrees in African languages and translation are offered are called upon to play their role by providing support in the development status of these languages.

Interpreters are viewed as the main stakeholders in the process of conveying communication in a judicial case, where one of the parties does not speak the language of the court. Indeed, the use of interpreters as gap builders has been gaining room over the few years in most multilingual countries in Africa. Most Constitutions and other legal tools provide guidelines on the use of interpreters where a witness, defendant, or plaintiff cannot speak the language of the court. Whereas in some countries the side which pays the costs for the interpreting work is clearly indicated in the legal provision, in most other countries this is left unspecified, thus giving room for flexible interpretation.

In the aforementioned Ghanaian case, the country’s Constitution in its article 19(2) clearly states that no charges should be held on to the person whose language is other than the court’s language. This indicates that Government authorities will cover all costs regarding the interpreting service. Many would claim that it would be rather redundant for a legal provision to explicitly indicate that point; however, it should be recalled that, in most African countries, vagueness, or even arbitrariness in Bamgbose’s (Reference Bamgbose1991) terms, has always been a widespread technique adopted by a range of regimes, with a view at maintaining the status quo, that is, the hegemony of the language inherited from the former colonial power.

By acknowledging the use of twelve official languages, of which ten [including the recently promoted South African sign language] are of African origin, the South African Constitution recognises the right for nationals who speak each of the languages to use them in all official contexts, including in the judicial system. Research conducted by several scholars in South Africa such as Moeketsi (Reference Moeketsi1999a, Reference Moeketsi1999b), Ralarala and Rodrigues (Reference Ralarala, Rodrigues, Ralarala, Kaschula and Heydon2019), Docrat and Kaschula (Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019), De Vries and Docrat (Reference Docrat2019), and Ralarala and Lesh (Reference Ralarala, Lesh, Ralarala, Russell and Georgina2022) demonstrate that, apart from the challenges faced with the quality in the interpreting task, the government authorities provide interpreters whenever deemed necessary.

In Mozambique, probably the only Portuguese-speaking country in which forensic linguistics and mostly particularly police interviewing have been experiencing some insightful developments, the Civil Process Code in its 2010 revised version made this point clear:

1. 1. Portuguese shall be the language for courtroom sessions.

Those who do not speak Portuguese and wish to be heard shall, however, [be permitted to do so] in a language other than Portuguese, provided that, if deemed necessary, a sworn interpreter is appointed to ensure communication.

While these amendments of Article 139 earlier made clear that interpreters were required whenever the witness did not speak Portuguese, it is important to note that this Article failed to specify who would pay for the interpreting service. In practice, the responsibility for paying for an interpreter lied entirely upon the individual who made the request.

However, in 2019, a new Penal Procedural Code was approved and new developments added information to the aforementioned Article, through Act no. 25/2019 of 26 September and Article 102(1)(2), which reads as follows:

1. 1. Portuguese shall be the language for procedural acts, both written and spoken, otherwise the act shall be deemed null.

2. 2. In the event of a participant who is not competent enough in the official language, a professional interpreter shall be appointed with no charges held on to him, even when the person in charge of the procedural act or either party are speakers of that language.

Given that the 2019 code is a relatively new tool, and also taking into account the historical fact that enforcement of new laws in some developing countries can take time to be fully taken to the general public, and also bearing in mind the lack of professional interpreters, time will tell when this legal provision will see the light of the day.

Interpreters play a key role in conveying communication when speakers of languages other the official language have to speak before a police station or a court of law. Despite the fact that most Constitutions will recognise their role, the quality of their work is not assured by any legal provision, with the impact thereof. More precisely, the job of interpreters as gap fillers has been long critiqued for poor quality and lack of legally oriented training. Among those who critique their job most, judges are in the frontline, as pointed out by Docrat and Kaschula (Reference Docrat, Kaschula, Kaschula, Ralarala and Heydon2019) or even Heydon and Mabasso (Reference Heydon and Mabasso2018).

However, the most concerning issue in the translation process is the use of ad hoc interpreters, who are mostly either on-duty police officers or particularly relatives of suspects. In court cases, this role is usually played by court assistants or clerks. In the case of suspects, and as Berk-Seligson (Reference Berk-Seligson2009) puts it, there is a potential for police officers to obtain confessions through coercion, thus risking suspect’s rights. Likewise, in court cases, interpreters are usually said to lack skills, and, therefore, their job is useless. When asked about the need for defendants to be informed about a case in a language they know better, lawyers say that their clients do not need to understand the police or the judge, as mentioned earlier.

4.6 Police Interviewing Practices

Overall, available research covering police investigative interviewing techniques in Africa as a whole and particularly in southern African countries seems to be very scarce, and most studies seem to be related to issues of police interpreting, as mentioned earlier in this section. However, it was possible to track a few publications which can be helpful to ascertain how police interviewing is conducted in some representative countries.

Before going through some of the available literature on the matter, it is worth recalling that most Southern African countries are former British colonies which are formally ruled by some form of common law system, combined with other systems, except Mozambique and Angola, two former Portuguese colonies, which are ruled by the civil law system inherited from Portugal. For instance, South Africa follows a hybrid of Roman Dutch civilian law, English common law, customary law, and religious personal law; in Zimbabwe, the legal system consists of the common law legislation case law (precedent) and customary law; Botswana is known for its dual legal system, whereby Roman Dutch law exists side by side with customary law; Zambia’s judicial system is based on English common law and customary law; Malawi’s legal system is based on English law, which was modified in 1969; and Tanzania follows a common law system. In the case of Mozambique, despite customary law not formally stated as a legal system, its practices are widespread in police interviewing cases as Mabasso (Reference Mabasso, Ralarala, Kaschula and Heydon2019) has pointed out.

Noteworthy is that, even countries that have not clearly indicated in their Constitutions that customary law methods can also be adopted by police as part of the legal system, the use of traditional tactics to interview suspects of certain crimes is likely to occur, and Malawi, Mozambique, and Angola are such examples. Clearly, this will impact the way police officers interview suspects.

Indeed, one of the most recent studies covering eleven sub-Saharan African nations was conducted by Donovan and Perez (Reference Donovan, Perez, Walsh, Bull and Areh2024). Although this study did not focus on southern African countries themselves, it managed to include a few such as Botswana, Malawi, Namibia, and South Africa, and common features could be drawn when it comes to police interviewing methods. In their study, Donovan and Perez indicated that, in their research countries, commonly used techniques are mostly based on ‘expertise’ shared by most experienced or senior police officers who have the rather challenging task of training their fellow colleagues to conduct reliable interviews with suspects. The use of strategies based on non-scientific methods is said to be behind the false confessions that have been reported by a few scholars, most probably due to the use of coercive methods.

However, an important step taken in southern African policing to address numerous issues related to police interviewing was the establishment of the Southern African Police Chiefs Cooperation Organisation (SARPCCO) in 1985. As a result, a Code of Conduct with thirteen articles was produced in 2011, with a view to promote, among other issues, Respect for Human Rights; Non-discrimination; and for protection against Use of Force; Torture or other Cruel, Inhuman and Degrading Treatment or Punishment; Respect for the Rule of Law and Code of Conduct, and other measures to protect peoples’ rights (Dissel & Frank, Reference Dissel and Frank2012). Notwithstanding the aforementioned, individual countries in southern Africa seem to adopt these principles differently. Experiences from a few Southern African countries in police interviewing are presented next.

4.7 An Approach to the Méndez Principles

A major step has been taken by Southern African police authorities through the Southern African Regional Police Commissioners Cooperation Organisation (SARPCCO), in collaboration with the African Commission on Human and Peoples’ Rights (ACHPR) and its Committee for the Prevention of Torture in Africa (CPTA), when they met last 1–2 July 2024, in Johannesburg, South Africa, with a view at promoting the shift to non-coercive interviewing based on the Méndez Principles.Footnote ² Indeed, the Méndez Principles, which make a comprehensive document, are divided into six principles, namely on Foundation, on Practice, on Vulnerability, on Training, on Accountability, and on Implementation.

The principles were adopted in May 2021 by a Steering Committee of Experts with the support of the Anti-Torture Initiative, the Association for the Prevention of Torture, and the Norwegian Centre for Human Rights.Footnote ³ These are principles on effective interviewing for investigations and information gathering. The Principles on Effective Interviewing for Investigations and Information Gathering or the ‘Méndez Principles’ aim to modify police practices by replacing coercive interrogations with rapport-based interviews. These principles are based on science, law, and ethics, and were developed as a pathway towards a move from widespread practices of coercion-based methods to extract confessions from suspects. The results of investigations conducted through these principles are said to be improved, respectful to human rights and also enhance trust in the State.Footnote ⁴

The Méndez Principles could be viewed as a more improved version of the PEACE Model, including its more advanced cognitive interviewing, in opposition to more coercive interviewing methods such as the Reid Technique.

The aims and purposes of the Méndez Principles, among many others, are basically those of preventing false confessions arising from torturous police interviewing strategies which may lead to miscarriage of justice, among other unlawful practices. Therefore, police procedures in southern Africa are challenged to adopt this new document which is expected to improve police interviewing and also court hearings and any other investigative practices with suspects or detainees.

4.8 The Adoption of Miranda Warnings Equivalents in Southern Africa

The Miranda Warnings or Miranda Rights, which originated in the United States of America, but were later adopted by various countries, particularly those ruled by common law, such as Australia and England and Wales, where they are known as police cautions, are an important tool to mostly protect vulnerable people against self-incrimination when questioned by the police. While countries such as Mozambique, a civil law country, have not adopted these rights at all, section 35 of the 1996 South Africa ConstitutionFootnote ⁵ states a number of rights in the possession of every arrested, detained, and accused person. Though these are not called ‘Miranda Rights’ as such, the fact that they are enshrined in the country’s Constitution could be viewed as a giant step towards the assurance of justice for all South Africans. The aforesaid rights are as follows:

1. (1.) Everyone who is arrested for allegedly committing an offence has the right− (a) to remain silent; (b) to be informed promptly− (i) of the right to remain silent; and (ii) of the consequence of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence against that person…

The same applies for Botswana, where its Criminal Procedure and Evidence Act of 1939 accords presents a law that describes the rights for suspects and the procedures police officers should follow when interviewing suspects.Footnote ⁶ Number 1 and 2 of the Act states as follows:

1. 1.) A policeman may take or cause to be taken any person lawfully detained in his custody before a magistrate or any justice who is not a member of the Botswana Police Force and the magistrate or justice shall give that person the opportunity to make a statement to him in respect of any offence that person is alleged to have committed and, if that person elects to make a statement, the magistrate or justice shall record the same in writing in the language in which it is made or in some other language into which it is duly translated while being made.

2. (2.) Before any person makes a statement in terms of this section, the magistrate or justice shall caution him to the effect that he is not obliged to say anything unless he wishes to do so but that should he elect to say anything it will be recorded in writing and may be used in evidence either for or against him.Footnote ⁷

   In the case of Malawi, the Constitution states that ‘[e]very person arrested for, or accused of, the alleged commission of an offence shall … have the right − a. promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement; [and] … . b. not to be compelled to make a confession or admission which could be used in evidence against him or her’.Footnote ⁸ Indeed, this also lies on the same framework of protecting suspects’ rights.

Namibia’s Criminal Procedure Act of 2004 accords suspects of a criminal act certain rights:

1. 2) A member of the police conducting an investigation … must, before questioning a person reasonably suspected of having committed an offence, give a warning explanation substantially in the following form to that person:

   1. (e) that the person to be questioned not only has the right to remain silent but also has the right to answer questions put to him or her or to give an explanation of his or her conduct or of his or her defence, if any;

   2. (f) that the person to be questioned has the right to consult a legal practitioner of his or her own choice before deciding whether or not to remain silent or to answer questions or give an explanation of his or her conduct or defence and that the legal practitioner is entitled to be present during the questioning;

   3. (g) that the warning explanation and any statement made in response thereto will be recorded in writing or mechanically and a certified copy of such recording be made available to that person … ; and

   4. (h) that the warning explanation and any statement made in response thereto may be used in evidence in any criminal proceedings instituted against that person in respect of the offence in question, whether it be against or in favour of that person.Footnote ⁹

One possible explanation for the lack of any provisions on suspects’ rights such as the Miranda Warnings in countries such as Mozambique and Angola could most probably be explained by the links with its traditional civil law colonial past, on the one hand, and by the inherited common law by former British colonies, on the other hand. Nonetheless, the enforcement of Miranda Warnings by the police when interviewing suspects and detainees in the whole southern African region and beyond is more than needed for the safeguard of anyone’s self-defence.

In multilingual southern African countries, one of the challenges when it comes to delivery of suspects’ rights is the language of delivery of such rights, given that most people are speakers of languages, other than the official language. As these rights are mostly written in a style that even a native speaker would find it difficult to understand, an important scientific event about the delivery of suspect’s rights occurred in 2016, when an international group of linguists, psychologists, lawyers, and interpreters, known as the Communication of Rights Group, drafted what are now known as Guidelines for communicating rights to non-native speakers of English in Australia, England and Wales, and the United States.Footnote ¹⁰ Despite the fact that the Guidelines were prepared for English-speaking countries, clearly the recommendations could be extended and enforced in any other country where suspects’ rights are delivered. In the following lines, some of the recommendations from the Guidelines will be looked at, which are critical and their implementation in southern Africa is more than urgent.

4.9 Conclusion

As demonstrated in this section, research on police interviewing in southern Africa is still scarce, and much of the published work in the field is more related to challenges raised by police interview interpreting process (see, for example, Ralarala, Reference Ralarala2014, Reference Ralarala, Kaschula, Maseko and Wolff2017; De Vries & Docrat, Reference Docrat2022). In the two civil law countries, Angola and Mozambique, references on police interviewing can be found in the latter (Mabasso, Reference Mabasso, Ralarala, Kaschula and Heydon2019); Mabasso and Heydon (Reference Mabasso, Heydon, Ralarala, Kaschula and Heydon2022); and Heydon and Mabasso (Reference Heydon, Mabasso, Walsh and Areh2024). Given the linguistic situation, there is almost no space to draw any picture about police interviewing practices in southern Africa without connecting this to the multilingual context in which it has been developing, on the one hand, and without addressing the role of translation and interpreting, on the other hand.

This section has demonstrated that former British colonies in southern Africa have managed to combine common law tradition and customary law practices and include them in their respective constitutions, which differs from Angola and Mozambique, two civil law countries which have not formally adopted customary law as an alternative system, despite the fact that this is often used by the police when interviewing suspects (see Heydon & Mabasso, Reference Heydon, Mabasso, Walsh and Areh2024). These two countries are particularly known for their sole official language policy, which hinders most suspects from defending themselves, especially when interviewed by the police, without the assistance of a qualified interpreter.

In terms of police interviewing techniques, no clear indication seems to have been provided and, most probably, police officers adopt flexible tactics to force suspects to confess, thus opening gate to coercion and corruption. One way to prevent this from happening and protect suspects’ rights would be the adoption of clear police interview protocol with clearly drafted police cautions, as indicated in the 2016 recommendations by the Communication of Rights Group mentioned above, with special focus on recommendations 1, 2, 3, and 7. Translations of these recommendations should be provided in all languages spoken in each country, and, in order to ensure that these recommendations are fulfilled, individual countries should adopt monitoring strategies involving lawyers and civil society organisations. The two civil law countries, Angola and Mozambique, which still have not adopted any suspects’ rights protocol, are urged to engage on this in the short time so as to comply with regional protocols such as the Implementing the Southern African Regional Police Chiefs Cooperation Organisation (SARPCCO) Code of Conduct and other vital instruments.

Given that southern African countries, through the African Commission on Human and People’s Rights (ACHPR), have agreed to adopt the resolution on The Principles on Effective Interviewing for Investigation and Information Gathering, the Méndez Principles, Southern African countries are urged to adopt these principles and, likewise, establish a monitoring mechanism of their implementation. Similar to the aforementioned recommendations, translation of these principles in the various African languages spoken in each country should be provided and the social media should play a key role in providing special programmes with a view to make the principles known to the general public.

In a multilingual and multicultural policing context such as southern Africa, successful police interviewing practices will strongly depend upon effective adoption of the available international tools and also upon how the language issue will be addressed, and here the role of qualified translators and interpreters will be essential. The section that follows brings this Element to a conclusion by charting a way forward for forensic linguistics in southern Africa.

5.1 Introduction

Article 26 (H) of the Constitution of the Republic of Zambia and Section 42(2) of the Constitution of the Republic of Malawi, for instance, stipulate that any person who is arrested or detained shall be informed the reason for the arrest in a language that they understand. Legal provisions from various countries in southern Africa guarantee that accused persons have the right to be tried in a language which they understand, or have the proceedings interpreted to them in a language which they understand. These provisions are crucial in foregrounding the institutionalisation of the importance of language in law and legal proceedings in southern Africa. Therefore, despite the fact that forensic linguistics is in its infancy and in formative stages, as a distinct field of inquiry, in most of southern African countries, this section charts the future direction of forensic linguistics in the region by using data from Malawi, Zimbabwe, Namibia, Kenya, Tanzania, Zambia, and South Africa. This supports the data already put forward in Section 1 of this Element. In this section, we present plausible strategies that once taken on board can assure the growth of forensic linguistics in the region. However, before we do so, the first two subsections outline the institutionalisation and the current status of forensic linguistics in the selected countries, the existing gaps, the leading scholars, and some important publications that have pushed forensic linguistics forward.

Information from Malawi, Zimbabwe, and South Africa was obtained from academic publications, while the discussion from Kenya, Namibia, Tanzania, and Zambia is based on formally solicited reports from some leading scholars in the field. These reports were obtained from Dr Humphrey Kapau (Zambia), Prof Emmanuel Satia (Kenya) Patricia Muriguri (Tanzania); and Prof Haileleul Zeleke Woldermariam (Namibia). However, both information obtained from academic published and reports from individual scholars point out to the fact that forensic linguistics remains largely untapped to the extent that a search through various repositories with the tagline ‘forensic linguistics’ would yield very little, if anything, as the existing works have not yet been explicitly labelled as forensic linguistics.

5.2 Institutionalisation of Forensic Linguistics and the Current Trend in the Region

5.3 Forensic Linguistics Research Studies in Southern Africa

Just like in the growth of the discipline itself, research studies in forensic linguistics in the Southern African region have been so lean. The major growth of research has been the movement which is led by University of the Western Cape in South Africa which is led by Professor Monwabisi Ralarala and Professor Russell Kaschula. The movement has given rise to the book series in Studies in Forensic and Legal Linguistics in Africa and Beyond which has so far led to the publication of six book volumes. However, not much research has been registered in individual countries.

5.4 Charting Future Directions

The earlier discussion has brought to the fore a number of challenges that southern African countries are facing in relation to the introduction and the growth of forensic linguistics in the region. Some of the key challenges highlighted include low research output, lack of qualified staff in forensic linguistics, limited number of universities teaching forensic linguistics, lack of accreditation and certification of linguists’ experts, and attitudes of some departments towards the discipline. Despite these shortcomings, the field is still developing in the region, with some optimistic advancements expected as the field becomes better understood and institutionalised. Reports obtained from leading scholars in various countries provide remarkable evidence that forensic linguistics has the potential to thrive despite its current weak status. Zambia and South Africa, for instance, have already started demonstrating the working relationship between law enforcement agencies and forensic linguists, where forensic linguistics are being put into practice to solve practical problems in law. These are just some of the few countries that have begun applying linguistic insights in legal contexts. This emerging intersection of language and law is an assurance on the future of the discipline. Our key informant in Zambia reported that, during the time this Element was written, there were six active cases involving the State and some high-profile Zambian politicians in which the State sought the help of language experts to help provide services involving linguistic knowledge. These are experts in linguistics, particularly from the Department of Arts, Language, and Literary Studies at the University of Zambia, who are leading the way by providing linguistic insights into legal matters and collaborating with various stakeholders.

In Kenya, although there is no documented involvement of forensic linguists in courtroom practice or any other forensic linguistics–related work as experts, the future of the discipline seems assured. More research on forensic linguistics is coming out, and there are working groups on WhatsApp platforms under the aegis of the African Association for Forensic and Legal Linguistics (AAFLL). Furthermore, new developments that have seen the Directorate of Criminal Investigations (DCI) open up a state-of-the--art forensic laboratory at its headquarters gives hope that in the not-so-distant future, the expertise of forensic linguists will be sought if the practicing forensic linguistics experts work to demonstrate the value of their work to relevant security agencies such as the National Police Service, the DCI, the Ethics & Anti-Corruption Commission (EACC), the National Intelligence Service (NIS) as well as the National Cohesion and Integration Commission (NCIC).

Similarly, some positive developments have also been witnessed in Zimbabwe regarding the teaching, research, and forensic linguistics education. First, Svongoro and Ralarala’s (Reference Svongoro, Ralarala, Ralarala, Kaschula and Heydon2023) report on postgraduate students who have demonstrated a keen interest in research on language use in police stations and courtrooms when researching for their dissertations and projects respectively. Secondly, some Zimbabweans have enrolled and completed postgraduate degrees with South African universities, majoring in language practice, translation, and interpreting, with some majoring in court interpretation. There is also an increase in research and publications in such areas as court interpreting, interpreting in the parliament, and language rights (see Svongoro & Wallmach, Reference Svongoro and Wallmach2019; Ndlovu, Reference Ndlovu2020; Kufakunesu & Svongoro, Reference Kufakunesu and Svongoro2023).

The introduction of the Master of Arts in Applied Linguistics (Law Enforcement Discourse) at Mzuzu University in Malawi is also a big development which gives a promising future for forensic linguistics in the region. Nineteen students were recruited in the first cohort. The second group comprised eighteen students, while the third intake comprises thirty students. Such growing numbers of students in each intake demonstrate that forensic linguistics has become an attractive discipline of study. What is more fascinating about the situation in Malawi is that the programme is bringing together police, army, lawyers, judicial offers, and linguists which is the first of its kinds since these fields have existed in isolation for many decades. This has been possible because of the name of the programme which was crafted to attract a wider audience with both law and linguistics backgrounds. Further, it has been reported that legal professionals are now able to appreciate the gaps in their profession which need linguistic interventions. In a study done by Kondowe and Ngwira (Reference Kondowe, Ngwira, Ralarala, Kaschula and Docrat2024) which investigated knowledge and altitude of legal professionals towards the involvement of linguists’ experts in court, legal professionals expressed positive knowledge about the services of language experts. However, they were not sure where this expertise can be found since they have never heard about their availability in Malawi. This shows that forensic linguists in the region do not make their expertise available on the ground. Southern African universities, therefore, need to start producing applied linguists who can work as expert witnesses and be of service during police investigations, and provide superior knowledge in trial processes that centre on the question of language. Even though Zambia and South Africa have started showing some positive movement in this direction, most African countries are still behind.

One of the major achievements in forensic linguistics research in southern Africa is that there has been a balance of studies covering almost all aspects of forensic linguistics from both students and academics. For instance, there are studies on courtroom discourse, court interpreting, police interviews, language policies, forensic linguistic evidence, linguists as expert witness. This is contrary to the situation in the Philippines, where Ranosa-Madrunio and Martin (Reference Ranosa-Madrunio and Martin2023) lament the limited focus on forensic linguistic evidence studies. Studies in linguistic evidence are those that are concerned with trademark linguistics, plagiarism detection, text messaging forensics, authorship attribution, suicide notes, fraud, phishing, and others. These studies are the ones that directly require the expertise of forensic linguists when such cases are at both investigative and trial stages. Studies in southern Africa are well spread in all these areas. However, the major challenge is that police and courts do hardly engage the expertise of linguists, not because they are not available, but because their expertise is hardly appreciated. Research studies in linguistic evidence are the pillar if forensic linguistics is to be appreciated in the region. Just like forensic pathology, entomology, dactyloscopy, and computational forensics, forensic linguistic evidence has heuristic potential in enhancing the delivery of justice. For this to be successful, linguists’ experts need certification and accreditation by established bodies so that they can execute their expertise with greatest recognition.

One of the first key issues that the region is battling with at the moment is discrimination and vulnerability of its citizens once they come in contact with the law which is a westernised system. In their edited book volume, Discrimination and Access to Justice in Africa: Language, Vulnerability and Social Inclusion in Southern and Eastern Africa, Kondowe and Svongoro (Reference Kondowe and Svongoro2025) puts together various works from the Southern and Eastern Africa region that document different forms of vulnerability experienced by children, women, intoxicated witnesses, the poor and the illiterate, unrepresented litigants, the hearing impaired, witnesses with mental disorders, foreigners, and migrants which block their access to justice. By drawing from case studies from Malawi, Zimbabwe, Kenya, Tanzania, South Africa, and Zambia, it is noted that southern African countries adopted formal or state judicial systems based on Western customs which are products of colonialism. These westernised method of resolving disputes are strange to the majority of Africans resulting in various forms of discrimination when citizens participate in the justice system. What comes out clear is that justice systems in South African countries face similar challenges such as lack of qualified court interpreters, use of foreign languages, lack of recognition of sign language, discriminatory legal provisions, and poverty. Therefore, forensic linguists on the African continent need to come up with practical solutions of alleviating language-induced vulnerability so that everyone receives fair treatment in line with international human rights law regardless of their condition.

Multilingualism remains one of the major challenges in most (if not all) southern African countries. Justice systems in most countries are struggling with colonial inherited practices where both the language of record and the language of practice remain English. A recent study done in Malawi has exposed poor court interpreting where the interpreters remain untrained bilinguals and communication gets distorted, thus affecting true justice from emerging (Lwara, Kondowe, & Ndalama, Reference Lwara, Kondowe, Ndalama, Kondowe, Kamanga and Madula2024). The same challenges are also witnessed in police formations where police officers who are not professional translators translate into English witness statements originally spoken in local languages. Therefore, southern African countries should consider developing and incorporating AI software that can support interpretation both at police stations and in courts. These can be translation apps, online legal dictionaries, and hearing aid machines that can facilitate the communication process with various groups, including those with hearing impairments, foreign language speakers, and witnesses with communication discoursers. An alternative approach would be to advocate for a decolonised justice system that should use local language, unless in exceptional cases where the litigants and court officials do not share a common language. This can further be supported by first introducing law as a compulsory subject in early education levels so that the law is not seen to be strange to the people who should obey it.

5.5 Conclusion

Forensic linguistics can have a strong future and be impactful if the discipline is also directly taught to law students. The University of the Western Cape (UWC) in South Africa has successfully started offering forensic linguistics in the Faculty of Law. In Malawi, law graduates are being enrolled in the MA programme in applied linguistics (law enforcement discourse). These are success stories to prove that legal education is insufficient when it is deprived of linguistics. Further, unlike Malawi, South Africa, and Kenya, who have introduced postgraduate programmes in forensic linguistics, most African countries are still lagging behind. If forensic linguistics is to be impactful in the region, there is a need for every country to have a postgraduate programme. The lack of expertise should not be used as an excuse to deprive the nation. Mzuzu University in Malawi started the postgraduate programme with one member of staff specialised in the field, but through partnerships with UWC, the programme took off and is growing fast. Apart from the postgraduate programme, universities should also open up their spaces for short-term training in different aspects of forensic linguistics which should target law enforcement agencies. These strategies are important as we chart the future direction of forensic linguistics in southern Africa to improve efficiency in the delivery of justice in the region.