ARTICLES

A tale of two federations: Comparing language rights in South Africa and Ethiopia

Yonatan Tesfaye Fessha

Postdoctoral Research Fellow, Community Law Centre, University of the Western Cape, South Africa

SUMMARY

The success of a federal arrangement in accommodating ethnic diversity cannot be measured solely on the basis of its language rights regime. However, it is generally agreed that a well-designed language rights regime goes a long way in contributing either to the effective reconciliation, unity and diversity or to the eventual polarisation of cultural communities. This article focuses on the challenges of adopting an inclusive language policy in multi-lingual states. Using two case studies, South Africa and Ethiopia, it examines the different policy alternatives for accommodating linguistic communities.

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* LLB (Addis Ababa), LLM (Human Rights and Democratisation in Africa) (Pretoria), PhD (Western Cape); yfessha@gmail.com. Special thanks go to Professor Nico Steytler for the incisive comments he gave on earlier versions of this article.
1 P Coulombe 'Federalist language policies: The case of Canada and Spain' in J Tully & A Gagnon (eds) Multi-national democracies (2001) 242.         [ Links ]
2 The Charter makes no reference to group-specific rights. It simply recognises individual rights. This individualist outlook is, in fact, made clear in the opening article, art 1(3), which outlines the purpose of the UN. According to this article, one of the purposes of the UN is to encourage 'respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion'. The reference to 'fundamental freedoms for all' is interpreted to mean fundamental freedom for all individuals and not groups.
3 The Universal Declaration declares that 'everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as ... language'.
4 In addition to the UN Charter and the Universal Declaration, art 1 of the UNESCO Convention against Discrimination in Education of 1960, arts 2(1) and 26 of the International Covenant on Civil and Political Rights, art 2(2) of the International Covenant on Economic, Social and Cultural Rights, art 1 of the American Convention on Human Rights, and art 2 of the African Charter on Human and Peoples' Rights provide for the right against discrimination on grounds of language.
5 According to arts 14(3)(a) & (f) of ICCPR, an accused has the right to be 'informed promptly and in detail in a language which he understands of the nature and cause of the charge against him'; and is to have 'the free assistance of an interpreter if he cannot understand or speak the languages used in court'. Similar rights are provided in arts 5(2) and 6(3)(a) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and art 8 of the American Convention on Human Rights.
6 R Dunbar 'Minority language rights in international law' (2001) 50 International and Comparative Law Quarterly 90-120.         [ Links ]
7 F de Varennes 'Linguistic identity and language rights' in M Weller (ed) Universal minority rights (2007) 258.         [ Links ]
8 B Bowring 'Multi-cultural citizenship: A more viable framework for minority rights?' in D Fottrell & B Bowring (eds) Minority and group rights in the new millennium (1999) 6-9.         [ Links ] See also De Varennes (n 7 above) 298.
9 Art 10(2) of the Framework Convention on the Protection of National Minorities provides that '[i]n areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities'. Similar rights are provided in art 10 of the European Charter on Regional and Minority Languages.
10 De Varennes (n 7 above) 298. Other major international instruments that make reference to language rights, though not always in legally-binding form, include the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; the UN Declaration on the Rights of Indigenous Peoples; the Vienna Declaration and Programme of Action; the European Charter for Regional and Minority Languages; the Central European Initiative Instrument for the Protection of Minority Rights; and the Framework Convention for the Protection of National Minorities.
11 DG Reaume 'Beyond personality: The territorial and personal principles of language policy reconsidered' in W Kymlicka & A Patten (eds) Language rights and political theory (2003) 271.
12 GM Balmer 'Does the United States need an official language? The examples of Belgium and Canada' (1992) 2 Indiana International and Comparative Law Review 445.
13 Balmer (n 12 above) 446.
14 M Chevrier 'Language policy for a language in exile' in P Larrivee (ed) Linguistic conflict and language laws: Understanding the Quebec question (2003) 155.
15 R Rubio-Marin 'Language rights: Exploring the competing rationales' in Kymlicka & Patten (n 11 above) 60.
16 Quebec has continuously been demanding to be recognised as a 'distinct society' in Canada. This was the main agenda in the two rounds of constitutional negotiations: the Meech Lake Accord in 1978 and the Charlottetown Accord in 1990. Recognition of Quebec as a 'distinct society' would have affirmed Quebec's dualist vision of the state, though set out only in the unenforceable paragraphs of a constitutional Preamble. The Quebec government's demand to be recognised as a 'distinct society' has not been successful. See S Tierney Constitutional law and national pluralism (2004) 238; see also R Simeon & L Turgeon 'Federalism, nationalism and regionalism in Canada' (2006) 3 Revista d'Estudis Autonomics I Federals 12. Gagnon & Herivault argue that the outcome of the Meech Lake debate has made the 'distinct society' compromise obsolete and no longer good enough to a majority of Quebecoise. For them, the only acceptable form of recognition today would be the inclusion of a clause recognising the 'Quebec nation' in the Preamble of the Canadian Constitution; A Gagnon & J Herivault 'The unresolved recognition of Quebec' paper delivered at a colloquium on Separatism in Canada: Past, present and future', Institute of Commonwealth Studies/Institute for the Study of the Americas, University of London, London, 4 November 2005 http//www.cst.ed.ac.ut/document (accessed 20 September 2009).
17 D Karmis & AG Gagnon 'Federalism, federation and collective identities in Canada and Belgium: Different routes, similar fragmentation' in J Tully & A Gagnon (eds) Multi-national democracies (2001) 154-155.
18 Karmis & Gagnon (n 17 above) 155.
19 See Balmer (n 12 above) 446. See also Coulombe (n 1 above) 248.
20 The Commissioner of Official Languages, in his 1995 Report, noted this fact. The Report concluded that French still had a disproportionate place in relation to English, even in the federal administration where progress in the use and status of French is more visible. The Commissioner concluded that French did not achieve 'a fair status as a language of services and work'. The 1996 Census also revealed that 'the historical pattern of assimilation among francophone minorities has not yet been overcome'; Karmis & Gagnon (n 17 above) 155.
21 The Charter of the French Language in Quebec, which is famously known as Bill 101, is a good example that illustrates this situation. Adopted by the Parti Quebecois government in 1977, Bill 101, following the territorial model of language planning, sought to promote the use of French and at the same time restrict the use of English. It obliges both immigrants and Canadians moving to Quebec to send their children to a French school and mandated the display of commercial signs in French only. The court decision abrogated part of this legislation. The Supreme Court in 1979 decided that provisions making French the only official language of legislation and justice violate sec 133 of the British North America Act, 1867, which guarantees legislative and judicial bilingualism in Quebec. Part of the law that restricted the rights to education in English was struck down, entitling not only people who had been educated or whose parents had been educated in English in Quebec, but also those who had been educated in English elsewhere in Canada, to have their children receive education in that language. The Court in 1988 also struck down the rule that imposes French as the only language to be used on commercial signs. See generally K Swinton 'Federalism, the Charter and the courts: Rethinking constitutional dialogue in Canada' in K Knopf et al (eds) Rethinking federalism: Citizens, markets and governments in a changing world (1995) 294-315. See generally J Tully Strange multiplicity: Constitutionalism in an age of diversity (1995) 175.
22 A-G Gagnon 'Manufacturing antagonisms: The move towards uniform federalism in Canada' in B de Villiers Evaluating federal systems (1994) 127.
23 Simeon & Turgeon (n 16 above) 27. See also Karmis & Gagnon (n 17 above) 152.
24 M Keating Plurinational democracy: Stateless nations in a post-sovereignty era (2001) 128.
25 T Fleiner 'Switzerland: Constitution of the Federal State and the Cantons' in L Basta-Fleiner & T Fleiner (eds) Federalism and multi-ethnic states: The case of Switzerland (2000) 103-145.
26 R Watts 'Language policies and education in Switzerland' in R Watts & J Smolicz (eds) Cultural democracy and ethnic pluralism: Multi-cultural and multi-lingual policies in education (1997) 271-30. See also F Grin 'Language policy in multi-lingual Switzerland: Overview and recent developments' paper presented at the Cicle de confèrencies sobre política lingüística Direcció general de política lingüística, Barcelona, Spain, 4 December 1998.
27 J Steiner 'Switzerland and the European Union: A puzzle' in M Keating & J McGarry (eds) Minority nationalism and the changing international order (2001) 137-154.
28 Balmer (n 12 above) 443.
29 Fleiner (n 25 above) 103-145.
30 Spain, after almost four decades of Franco's highly-centralised and homogenising regime, adopted a new Constitution in 1978. During the Second Spanish Republic (1931-1938), which was considered by many as a progressive government, Catalonia, the Basque country and Galicia were allowed to enjoy some level of autonomy. This was, however, short-lived. The Franco regime, which came to power in 1936, emphasised unity and condemned all forms of cultural diversity. The regime suppressed all regional political institutions and laws. It also prohibited the use of Catalans and Basques (Euskera) languages and all sorts of symbolic elements (flags, anthems) of the Catalan and Basque identities. See M Guibernau 'Between autonomy and secession: The accommodation of minority nationalism in Catalonia' in A Gagnon et al (eds) The conditions for diversity in multi-national democracies (2004) 122.
31 R Agranoff 'Asymmetrical and symmetrical federalism in Spain: An examination of intergovernmental policy' in De Villiers (n 22 above) 73.
32 Another language-related clause of the Constitution, though individualistic in its orientation, is sec 9(3) which states that 'the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including ... language'. In addition, sec 30 provides that '[e]veryone has the right to use the language and participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights'.
33 I Currie 'Official languages' in M Chaskalson et al (eds) Constitutional law of South Africa (2002) 37.1-37.15.
34 HA Strydom 'Minority rights issues in post-apartheid South Africa' (1997) 19 Loyola of Los Angeles International and Comparative Law Journal 873-914.
35 Strydom (n 34 above) 898.
36 As above.
37 As aptly argued by Strydom, 'officialising a language is meaningless unless that language is used in all or most of the primary tasks of government - legislative, executive and judicial'; HA Strydom International standards for the protection of minorities and the South African Constitution http://www.fwdklerk.org.za/download_docs/02_05_Int_Standard_Minorities_Publ_PDF.pdf (accessed 20 March 2007).
38 It is not, however, clear if this variant of territorial model automatically applies to national departments operating in the provinces.
39 Sec 6(3) South African Constitution.
40 According to one interpretation, the minimum number of languages to be used for purposes of government is three and not two: English and Afrikaans (as the spirit of the Constitution precludes that their status be diminished) plus at least one African language because the state must, in terms of sec 6(2), take practical positive measures to elevate the status and advance the use of these languages. M Kriel 'Approaches to multi-lingualism in language planning and identity politics - A critique' http://general.rau.ac.za/sociology/kriel.pdf (accessed 20 March 2006).
41 Sec 6(5) South African Constitution.
42 Sec 6(5)(a) South African Constitution.
43 Secs 6(5)(b)(i) South African Constitution.
44 Sec 6(5)(b)(ii) South African Constitution.
45 V Sacks 'Multi-culturalism, constitutionalism and the South African Constitution' (1997) SA Public Law 683.
46 N Alexander 'Language and the national question' in W James & G Maharaj (eds) South Africa: Between unity and diversity (1998) 16.
47 It is not, however, clear if this variant of territorial model automatically applies to national departments operating in the provinces.
48 Kriel (n 40 above).
49 LT du Plessis & JL Pretorius 'The structure of the official language clause: A framework for its implementation' (2000) 15 SA Public Law 505-526.
50 Very recently, the decision of the Western Cape Provincial Police Department that only English be used for all internal, including radio, communication has faced protest from a group Afrikaans-speaking police and also among the wider Afrikaans-speaking community. Some threatened legal action against the province's police language policy. The authorities said that their aim was to improve communication between the province's different language groups by encouraging the use of English. The new policy was later removed; See News24.Com 'FW: Afrikaans is under threat' http://www.news24.com/News24/South_Africa/News/0,9294,2-7-1442_2060508,00.html (accessed 20 March 2007).
51 Strydom (n 34 above).
52 After examining the use of African languages in courts, Hlophe (2001:94) concluded that '[t]he courts continue to lay too much emphasis on practical considerations. Practical considerations in effect are convenience to the presiding judicial officer! The noble goal of language parity will remain elusive as long as the courts continue to adopt this approach, and the legacy of English and Afrikaans as the sole court language will continue ... In the result, indigenous African languages are undermined.' JM Hlophe 'Official languages and the courts' (2001) 11 South African Law Journal 690-696.
53 H Giliomee 'The rise and possible demise of Afrikaans language' PRASEA Occasional Papers 14 (2003).
54 The practice of monolingualism with its promotion of English as the sole language of communication has caused an outcry from communities, especially the Afrikaner community. In an open letter addressed to President Thabo Mbeki, 24 prominent speakers of Afrikaans complained that 'the South African government's commitment to a philosophy of multi-lingualism and cultural pluralism was paying lip service only, as was the commitment to the promotion of the African languages, including Afrikaans' Insig 1999:24. English, they claimed, is what is actually being promoted. The dominance of English is, in fact, conceded by the government. The Minister of Arts, Culture, Science and Technology, when establishing a Language Plan Task Group, noted the increasing tendency towards unilingualism despite the multi-lingual reality that characterises South African society and a Constitution that declares official multi-lingualism. See Department of Arts, Culture, Science and Technology 'Towards a national language plan for South Africa' Final Report of the Language Plan Task Croup http://www.dacst.gov.za/arts_culture/language/langplan/contents.htm (1996) (accessed 20 April 2006).
55 Art 5 Ethiopian Constitution.
56 The state-based federal offices use Amharic for government business.
57 G Cohen 'Identity and opportunity: The implications of using local languages in the primary education system of the Southern Nations, Nationalities and People's Regional State (SNNPR), Ethiopia' unpublished doctoral thesis, University of London, School of Oriental and African Studies, 2000 111.
58 L Smith 'Language choice, ethnic self-determination and national unity in contemporary Ethiopia' paper presented at a panel discussion on 'Ethnicity, identity and the right to self-determination' 26 May 2007, Addis Ababa, Ethiopia.
59 B Haile-Selassie 'Ethiopia: A precarious ethno-federal constitutional order' unpublished doctoral thesis, University of Wisconsin Law School, 2002.
60 Interview with Bulcha Demekesa, Chairperson of the Oromo Federalist Democratic Movement (OFDM) http://www.oduu.com/news/index.php?news_id=4 (accessed 25 February 2009).
61 M Haile 'The new Ethiopian Constitution: Its impact upon unity, human rights and development' (1996) 20 Suffolk Trans-National Law Review 1-84.
62 Minase (n 61 above) 37. Ehrlich similarly argues that the language policy has the effect of 'causing a degree of separation between the various groups'. C Ehrlich 'Ethnicity and constitutional reform: The case of Ethiopia' (1999) 6 ILSA Journal of International and Comparative Law 51-73.
63 Haile-Selassie (n 59 above) 213.
64 As above.
65 Ehrlich (n 62 above). Bloor & Tamrat share the same concern. It is often argued that the present language policy in Ethiopia 'will restrict movement across administrative units, thereby disrupting existing patterns of exchange between different areas and contact between different people'. T Bloor & W Tamrat 'Issues in Ethiopian language policy and education' (1996) 17 Journal of Multi-lingual and Multi-cultural Development 321-338. See also Cohen (n 57 above) 112.
66 Smith (n 58 above) 5. As pointed out by Fasil, 'state recognition of every Ethiopian language means that efforts for its development - ie the preservation of literature, the provision for a script, where such does not exist; the documentation of its oral literature; and the further study of each language via grammatical, vocabulary and overall publication and enhanced use of the language - will be done with both state blessing and state support to the extent possible'. F Nahum Constitution for a nation of nations (1997) 55.
67 Cohen (n 57 above) 111.
68 What might even be problematic is the dominance of Amharic in the majority of the ethnically-plural regional states. This, one may argue, works against the constitutional commitment to promote linguistic diversity and especially the use of local languages even though the scheme benefits from the culturally neutral status of Amharic in the context of the regional languages.
69 J Schmied English in Africa: An introduction (1991) 27.
70 Coulombe (n 1 above) 242.
71 Balmer (n 12 above) 447.
72 Sacks (n 45 above) 683.
73 This, of course, is not true for Afrikaners for whom issues relating to language historically constitute a central place in their resistance against the British cultural hegemony. This partly explains why the Afrikaners, unlike the other ethnic groups in South Africa, feel so strongly about the dominance of English in today's South Africa.