Translating the Constitution of Kenya, 2010: The Illusion and Veracity of a Linguistic Trajectory in the Translation of Legal Texts with Special Reference to Chapter 11

  • James Zaja

Abstract

This paper seeks to argue that the translation of the Constitution of Kenya, 2010, into Kiswahili, is grounded and solely framed on a linguistic trajectory, which regrettably renders the whole translation undertaking as a sloppy and shoddy exercise. This translation venture engenders a dummy document that neither reflects the legal meaning as espoused in the source text nor captures the crux of the legal effect of original. The Kiswahili translation of this Constitution is thus a production of a document incapable of standing a simple scrutiny of fidelity to content and the rendition of legal meaning. It is a document that is banal in the extreme in terms of the rendition of legal meaning, it is inconsistent in assigning meaning and meaning nuances to legal terminologies and their attendant established understandings or even their contextual meanings. Predicating the entire translational enterprise on a linguistic paradigm, utterly untampered by any other considerations necessary for a realistic rendition of a legal document, is a naïve strategy that only inspires triteness. Yet it is arguably true that, translation being a complex process that is informed by the consideration and understanding of diverse disciplines, it draws on many specific skills and multidisciplinary strategies, more so when it delves into specialized discipline areas, such as legal translation. The translation of the Constitution of Kenya 2010, is essentially legal translation, and as such, demands meticulous attention to detail. This arises out of the realization that translating legal texts is a very exacting task, given that even the slightest of mistakes of omission or commission will occasion complex negative legal consequences. Whereas the need for linguistic proficiency cannot be underrated, there are certain cardinal considerations that cannot be relegated to the peripheries when undertaking legal translation. These include the consideration of the fact that the Constitution as source text is structured and framed within a discernible legal system and culture, which in turn kowtows to a given legal phraseology. This is an obligatory consideration set out so as to ensure that a source legal text is delivered as precisely as possible in the target paradigm.The translation of Chapter 11 of the Constitution of Kenya 2010, in view of these observations, presents worrying and incontestable evidence that, the Kiswahili translation was effected purely on a linguistic trajectory oblivious of legal and other multidisciplinary considerations. The translation’s pursuit for the equivalence of legal terminologies and phraseologies is premised entirely on linguistic structures of the source language without any attempt to understand the legal nuances of the terms and phrases translated. The text is as such replete with mistranslations, loss and distortion of meaning, which are in turn emblematic of the whole document. The translator hardly interrogates the letter and spirit of legal language and the embedded meanings of the legal notions, principles, provisions and concepts espoused. Thus the translation fails to capture and appropriately render the meanings espoused by words in their singular forms and in word-groups. This failure is evident in the rendition of meanings embedded in both simple and complex legal sentence structures and well as the whole legal syntax of the Constitution. The translation does not reveal in any discernible way that it benefits from legal knowledge and technical knowhow. This is important because a translation of a legal document inevitably demands the deployment of a range of legal competencies so as to identify and aptly translate legal terms, recognize and appreciate the criticality of legal writing style and its implication in meaning rendition, as well as its applicable terminology.There are, thus, several instances of word for word translations, the consequences of which are unfathomable. Overall, a critical examination of the translation of Chapter 11 of the Constitution of Kenya 2010 reveals a very unprofessional interpretation and rendition of legal meaning espoused in the whole Chapter. The plain linguistics on which this translation is framed is incapable of realistically interrogating meaning in the intra and extra contextual strata where meaning is at times entrenched in legalisms and legal drafting style. Whereas the general expectation is that there shouldn’t be any discernible deviations of meaning between the source text and the target text, in this particular translation deviation, distortions, omissions and incomprehensible constructions are the norm rather than the exception. The translation runs afoul of all the fundamental considerations of legal drafting and subsequently legal translation such as disregarding the tone of the document, its legal register, its syntax, phraseology and range of terminology. It is stripped of exactitude in terms of unquestionable awareness of the interplay between various parameters such as sound linguistic grounding, understanding of legal terminology and phraseology and legal drafting, among others.

Published
2018-09-03
How to Cite
ZAJA, James. Translating the Constitution of Kenya, 2010: The Illusion and Veracity of a Linguistic Trajectory in the Translation of Legal Texts with Special Reference to Chapter 11. Mara Research Journal of Humanities & Social Sciences - ISSN: 2519-1489, [S.l.], v. 3, n. 2, p. 21 - 87, sep. 2018. ISSN 2519-1489. Available at: <http://hss.mrjournals.org/index.php/hss/article/view/41>. Date accessed: 27 may 2019.