Under Article 207 of the CPC, the Court can appoint an interpreter, selecting him, if possible, from among persons jointly agreed by the parties “when the person wishing or required to make a statement or give
or desirable by the Court”, as well as in the case of Art.183 of witnesses who are deaf, dumb or deaf and dumb.
The language of the article could be understood to mean that an interpreter is not needed for every phase of the trial and investigation, but only for explaining the charge and indictment, and during interrogations and confrontations. However, such a reading would be contrary to Article 8 of the Constitution of Somaliland which prohibits any kind of discrimination and privilege between the citizens of Somaliland.
To be treated equally, an accused must be given an opportunity to understand and participate in the proceedings against them which are equal to those afforded a native speaker.
The International Covenant on Civil and Political Rights (ICCPR), Article 14, also requires that “All persons
shall be equal before the courts and tribunals…” and ICCPR Article 14.3(f) specifically provides that the
accused shall have access to “ free assistance of an interpreter if he cannot understand or speak the language
used in court”. Additionally, Guideline 3.42.f. of the UN Principles and Guidelines on Access to Legal Aid in
Criminal Justice Systems demands that States “provide the services of an independent interpreter, whenever
necessary, and the translation of documents where appropriate” for all persons suspected, arrested, detained,
accused and charged with a criminal offence. 2.3.2. When to get an interpreter
Whenever an advocate suspects that his client does not have the language skills to understand the proceedings it is best to ensure that an interpreter is used. Most often when it is appropriate to use an interpreter in court it is also necessary to have an interpreter for attorney-client communications.
2.3.3. The qualifications of a Court Interpreter
The work of a court interpreter is highly skilled and very demanding, and it should pay correspondingly well. In many countries qualifying as a court interpreter requires passing a very difficult examination that tests simultaneous translation speed and accuracy, knowledge of arcane legal terminology, and interpreter ethics. Because the interpreter will often be party to confidential attorney-client communications, a court interpreter must be willing to honor the obligation to protect the client’s secrets.
For the sake of convenience and cost savings, it is often tempting to use a friend or relative of the accused, or a local elder as an interpreter; however, this is almost always a bad idea. Even if this sort of ad hoc interpreter is fluent in both the language of the court and the language of the accused it is almost never the
case that they are also acquainted with legal terminology, free from conflicts of interest, and able to protect the client’s confidences. It is particularly important to avoid using an interpreter who is in any way connected
to offenders in cases where your client is a victim.
An interpreter may be very sympathetic to your client and eager to help, but still cause problems for an advocate if he or she lacks an understanding of legal matters and their own duty. For example, mental illness can sometimes be a defense to a crime and it certainly is something the advocate needs to be aware of, but amateur interpreters may hide the symptoms of a client’s mental disorder, thinking that they are helping the client. Interpreters are usually reluctant to translate nonsense, and an interpreter who is not properly trained
may try to make the client sound coherent, which can cause rather severe mental health problems to be unnoticed by the advocate and the court.
2.3.4. Working successfully with an interpreter
Once an interpreter is present, judges, prosecutors, advocates and the accused often begin to act as though they have forgotten that translation needs to take place. The very best simultaneous translators will still sometimes need clarifications or time to catch up with a speaker. Unless all speakers speak slowly, pause occasionally, and avoid speaking at the same time as other speakers, the interpreter’s job will quickly become impossible. Making sure that the interpreter is sufficiently comfortable to interrupt speakers, ask them to stop speaking, or to repeat themselves, can prevent many problems from occurring.
It is also necessary to monitor the interpreter’s actions to ensure that they are translating everything verbatim. Often an interpreter will take the approach that he will just convey the general idea of what is going on and not worry about what he or she deems unimportant details. This is unacceptable and must be prevented, as the interpreter is really in no position to decide what is truly significant and what is not. If you notice that the length of the translation varies tremendously from what is being translated, or if words appear in the translations that were not in the original statement, or vice versa, there is clearly a problem.
Problems are greatly reduced if the advocate discuses their expectations with the interpreter in advance. It is also best to brief the interpreter on what to expect in terms of unusual vocabulary or esoteric technical terms well in advance because certain words and concepts may not have direct equivalents in the language of the client, and the interpreter will need time to craft an appropriate phrase or explanation to translate the word or concept correctly.
Whenever there are different languages being used there are potentially different culture values that must be considered as well. Whenever topics such as religion, body parts, bodily functions, obscene language or other potentially culturally sensitive material is likely to be discussed, the advocate should warn the interpreter of this possibility, and have a plan for how to handle these topics if they are relevant to the case. If an interpreter simply fails to interpret testimony, because he or she is shocked, or embarrassed or concerned about offending others, it could change the outcome of the case in ways the interpreter does not understand.
Class Discussion - Six
• Have you faced any obstacles in obtaining interpreters for your clients?
• Is funding available for interpreters?
• What are the qualifications of interpreters you have encountered in court?
• What can advocates do to ensure that their clients have qualified interpreters provided to them at no cost?