WHAT ABOUT WANJIKŨ: THE PLIGHT OF LINGUISTIC DISCRIMINATION IN COURTS IN RURAL KENYA

Abstract

This project examines the often-overlooked plight of linguistic discrimination in the legal system. The study zeroes in on the courts in the rural areas of Kenya, particularly in the current decade (the 2020s). Despite language playing such an instrumental role in the administration of justice and in society at large, it is imperative that it is accorded the attention it deserves in the legal system. 

Although the Constitution of Kenya assertively aspires to eradicate discrimination of all forms against the Kenyan citizens, linguistic discrimination continues to persist among the seekers of justice in courts in the rural areas of the country nevertheless. As a result, a domino effect is created whereby the language barrier between the administrators (such as the magistrates and the advocates) and the seekers of justice (such as the plaintiffs, defendants and witnesses) creates a discord in the comprehension of legal proceedings, which in turn creates an even wider barrier to the access to justice for its seekers. 

This project is supported by two major theories. The Critical Discourse Analysis Theory of language (CDA), which posits that linguistic barriers in the politico-administrative system is a mechanism weaponized by the individuals who hold power. This is manifested through the continuous use of colonialist languages such as complex legal English, which is unjustified in many instances. In addition, the Rawls’ Theory of Justice supports this research by affirming that total fairness (in this particular case, in courts) can only be achieved if all forms of discrimination are eliminated. The failure of the courts to prioritize the language needs of all seekers of justice, including the lack of provision of reasonable accommodation, is an indisputable barrier to access to justice. 

To fulfil its purpose, this research utilizes the doctrinal legal research methodology. This methodology involves comprehensively using both primary and secondary sources of the law as the main points of reference, sourced from law reports (such as the Kenya Law Reports) and various academic publications. Referencing from primary sources involves analyzing, reviewing, and interpreting various constitutions such as the Constitution of Kenya, Acts of Parliament, statutes, common law and case laws, among several others. Moreover, referencing from secondary sources involves analyzing and reviewing works such as textbooks, journal articles, the World Wide Web, and any other source that may be useful to the topic, and adjacent topics that may be just as relevant to this study. 

This project aims to add to the body of existing knowledge by shedding more light about this overlooked challenge from a discrimination point of view. It traces the roots of this particular setback, from its inception decades ago, following its journey to until the present day where it persists. Additionally, this research wishes to inspire optimism about eradicating linguistic discrimination in Kenya. It aims to inspire both aspiring and present legal practitioners in Kenya to prioritize the linguistic needs of the seekers of justice in their service in and outside of the courtrooms, and purpose to create long-lasting solutions that will ultimately put an end to this plight.