Lost In Translation: The Authentication of Translated Documentary Evidence In Uganda

The Gap in the Law: No Standard for Translator Qualification

What the law does not clearly answer is who is qualified to make the translation. Section 88 prescribes the language in which evidence reaches the court but is silent on the translator’s qualifications or competence. Yet a translation is, in substance, expert opinion evidence: it represents the translator’s opinion of the meaning intended by the original author, rather than a statement of fact. It should therefore logically be subject to requirements of qualification and reliability like other expert evidence, but Ugandan law currently provides no clear standard.

Why Bilingualism Is Not the Same as Translation Competence

In practice, because there are no clear legal guidelines, anyone may translate a document into English without disclosing their identity, qualifications or expertise, and such translations often pass without objection or scrutiny by the court. Yet bilingualism does not necessarily mean translation competence. A person may understand two languages but still fail to accurately preserve the meaning intended by the original author, particularly in legal or technical documents where small differences in wording may be significant.

The Illiterates Protection Act

This issue should be distinguished from the safeguards under the Illiterates Protection Act, which apply where a person is unable to read and understand the language in which a document is written. The Act requires the person who writes the document for such a person to state their true full name and address, thereby implying that the document “fully and correctly represents his or her instructions and was read over and explained to him or her.” Notably, the Act does not require that person to state any qualification or accreditation as a translator.

Comparative Approaches: Kenya and England and Wales

Comparative jurisprudence illustrates how this gap might be addressed. Kenyan courts have questioned translations prepared merely by persons who happen to understand the relevant language where their linguistic competence and the accuracy of the translation have not been established. England and Wales go further procedurally and require foreign-language affidavit evidence to be translated and the translator to verify the translation. The important principle is accountability. The court should know who translated the document and have a basis for assessing the reliability of that translation.

Recommendation

Ugandan courts could address this gap through a simple two-tier approach. Firstly, every translation tendered in evidence should be accompanied by the original document and disclose the translator’s identity, qualifications (if any) or basis of expertise, together with a certification of competence and accuracy. Secondly, where a translation is technical or disputed, an accredited translator or linguistic expert should be required and, where necessary, available for cross-examination. This would improve reliability without making accreditation mandatory in every case.

Conclusion

There is therefore a narrow but important gap in Ugandan evidentiary procedure. While the law requires documentary evidence to be presented in English, it provides little guidance on who may translate it or how the reliability of the translation should be assessed. Where the court cannot read the original, the competence and accountability of the translator are important safeguards for the integrity of the evidence. It may therefore be timely to consider regulations or legislative amendments to address this gap and ensure that key evidence is not, quite literally, lost in translation.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Timothy Lugayizi.