LEGAL PRINCIPLE: CRIMINAL PROCEDURE — Fair Hearing — Interpreter — Constitutional Requirement for Record of Proceedings — Effect of Failure to Record Presence of Interpreter on Subsequent Days
PRINCIPLE STATEMENT
Failure to record the use of an interpreter on subsequent days does not per se vitiate the trial; however, a breach of section 33(6)(a) and (e) of the 1979 Constitution (right to interpreter and to have proceedings explained) is fatal as it raises the question whether the accused had a fair hearing.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Anyanwu v. State (2002) NLC-3282001(SC) at p. 10; Paras A–B.
"Where an interpreter is provided at the commencement of the trial and a record of this is made, it is desirable, and indeed a constitutional duty of the trial Judge to record this fact also on the subsequent days of the trial when use is made of the interpreter. Where, however, the Judge fails to make a record of the use of the interpreter in subsequent days the trial is not, per se, there vitiated. Where it is shown that an interpreter was not provided where it should have been provided as where the accused person does not understand the language in which the proceedings are being conducted, different considerations will arise as this raises the question whether such an accused ever had a fair hearing. In effect what I am saying is that a breach of Sec 33(7) of the 1979 Constitution per se, will not necessarily vitiate a trial. A breach of section 33(6)(a) & (e), is, however fatal to a criminal trial as it raises the question whether an accused person so affected ever had a fair hearing."
EXPLANATION / SCOPE
Failure to record the use of an interpreter on every day of trial is not automatically fatal if an interpreter was actually provided. However, the constitutional right to an interpreter (section 33(6)(a) and (e)) is fundamental. If no interpreter was provided for an accused who does not understand English, the trial is a nullity. The distinction is between failure to record (procedural irregularity) and actual failure to provide (substantive breach). The court will examine whether the accused understood the proceedings. The burden is on the accused to show that he did not understand. The principle ensures that constitutional rights are protected while avoiding technical nullification.