INTRODUCTION
The rapid increase of employing Information Technology in daily life in Tanzania has brought many challenges in courts. The Tanzanian courts for quite a long time have been relying on the Common Law doctrine of Best Evidence Rule to which the primary evidence in most cases is the written and signed or authenticated document[1].
However the trend has changed recently, with the swept in of computer technology which brought about electronic evidence[2]. Therefore this work seek to discuss the place or status of electronic evidence, their relevancy and admissibility in Tanzania courts as well as paying a due respect to the Electronic Transaction Act of 2015 and other accompanied legislations without forgetting the case laws under the discipline.
MEANING OF ELECTRONIC EVIDENCE
Electronic evidence can be defined as any evidence which is generated by electronic devices, be it a surveillance camera, computer, mobile phone, facsimile machines, or things of the same kind[3].
Electronic evidence refers to any information stored electronically (ESI), which may be used as evidence in a lawsuit or at a trial. It includes any documents, emails, or other files that are electronically stored. Electronic evidence also includes records stored by network or internet service provider[4].
BRIEF BACKGROUNDOF ELECTRONIC EVIDENCE IN TANZANIA
Before 2007 most statutes in the Tanzania did not give room for the admissibility of electronic-evidence. Tanzania had made several amendments on her laws to accommodate the admissibility of electronic evidence and other related legal issues brought by digital technology[5].
The introduction of electronic evidence has challenged the traditional laws of evidence. Traditional law of evidence still relies on facts defined by the Law of Evidence to include-(a) anything, state of things, or relation of things, capable of being perceived by the senses; (b) any mental condition of which any person is conscious’[6].
The Law of Evidence also requires the production of original documents. While the Evidence Act continues in operation in traditional format, developments in such areas as information technology have gone way beyond what that statute could have envisaged at its enactment[7].
It was observed by the Court of Appeal in the case of Tanzania Cotton Marketing Board .v. Cogecot Cotton Company SA[8], that “the law cannot be and is not ignorant of modern business practices (methods) and must not shut its eyes to the mysteries of the computers”.
Law of Evidence Act, 1967 of Tanzania was amended by the Written Laws (Miscellaneous Amendments) Act, 2007 to adjust the Evidence Act to incorporate electronic revolution and its impact on the laws and prevailing procedures[9].
In 2007, the legislature through the current Evidence Act introduced a new Section 40A which provides for admissibility of electronic evidence in criminal proceeding and Section 78Awhich allows admissibility of Bank’s electronic records which was not the case before these amendments[10]. However, the 2007, amendment did not incorporate provisions regarding how the same evidence should be collected, stored or produced in court[11].
Section 40A of Evidence Act[12], Inter alia,the section provides that in any criminal proceedings information retrieved from computer systems, networks or severs, or records obtained through surveillance of means of preservation of information including facsimile machines, electronic transmission and communication facilities; the audio or video recording of acts or behaviors or conversation of persons charged, shall be admissible in evidence.
The amendment also amended section 76 of the Tanzanian Evidence Act to the effect that the banker’s book includes the records kept or information system including but not limited to computers and storage devices, magnetic tapes, microfilm, video or computer display screen or any other form of mechanical or electronic data retrieval mechanism[13].
Section 78 of Tanzanian Evidence Act[14]was also amended to include section 78A; a printed out records kept of information system including but not limited to computers and storage devices, magnetic tapes, microfilm, video or computer display screen or any other form of mechanical or electronic data retrieval mechanism or other process which in itself ensures the accuracy of such print out, shall be received as evidence[15].
Section 78A (2) provides that the records received under section 78A (1) shall be deemed to be a primary evidence and “document” for the purpose of section 64 (1) of the Tanzanian Evidence Act[16].
It is however, very crucial to note that, the amending section, section 40A shows that the provision recognizing electronic evidence is limited to criminal proceedings only and hence not applicable in civil suit proceedings[17]. In our considered views, the legislature did not cure the mischief as pointed out in Trust Bank Ltd V. Le-Marsh Enterprises Ltd, Joseph MbuiMagari, and Lawrence Machariabecause the case was a civil case.
THE ELECTRONIC TRANSACTION ACT (No. 13) OF 2015 & ADMISSIBILITY & RELEVANCY OF ELECTRONIC EVIDENCE
Background of the Act
The Electronic Transactions Act No. 13 of 2015, hereunder referred to as (ETA), is a significant source of electronic evidence law in Tanzania. The Act was passed by Parliament on 1 April 2015. It was assented to on 25 April 2015 and came into force on 1 September 2015[18].
Scope of the Act
The scope of this law as far as electronic evidence is concerned is twofold. The Electronic Transaction Act covers the admissibility of Electronic evidence in criminal and civil proceedings. Geographically, it applies to the Tanzania Mainland as well as Tanzania Zanzibar, except Part III on E-Government Services as per section 2[19].
This is due to the fact the United Republic of Tanzania is a union of Zanzibar and Tanzania Mainland (formerly the Republic of Tanganyika), and the ETA covers one of the issues falling under union matters. However, in order for a piece of Union legislation to apply in Zanzibar, it has to be submitted to the Zanzibar House of Representative for endorsement as per Article 132 of the Constitution of Zanzibar 1984[20]. At the time of writing, the ETA has not been submitted to the House of Representatives, which means the ETA is not in force in Zanzibar.
The Act and Admissibility of Electronic Evidence
As previously mentioned, the ETA sets out special provision for admissibility of electronic evidence especially Part IV of the Act[21]. This Part is titled as “Admissibility and Evidential Weight of Data Massages”.
Interestingly, in the case of Emmanuel Godfrey Masonga v.Edward Franz Mwalongo[22],the court attempted to correct the title of Part IV from Admission of Evidential Weight of Electronic Evidence to read Admission and Evidential Weight of Electronic Evidence on account of an apparent miss-typing.
Part IV of the ETA uses the term ‘data message’ which is defined in section 3 of the Act[23],as data generated, communicated, received or stored by electronic, magnetic optical or other means in a computer system or for transmission from one computer system to another.
Section 18(1) of the Act[24], deals with admissibility of data messages, it provides: In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of a data message on ground that it is a data message. This subsection stipulates the functional equivalent principle, by which an electronic data message is placed on the same footing as traditional paper-based transactions. This implies that the requirements governing the admissibility of documentary evidence, which are relevance, authenticity and originality are still applicable[25].
The evidential weight of data messages is provided under Section 18(2) of the Act[26]. This subsection sets out guidelines for assessing the evidential weight of a data message as follows: In determining admissibility and evidential weight of a data message, the following shall be considered-(a) the reliability of the manner in which the data message was generated, stored or communicates; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other factor that may be relevant in assessing the weight of evidence.
Section 18 (3) of the Act[27], provides conditions in which the authenticity of the electronic record system is presumed in favor of the admissibility of electronic business records. This is what is sometimes known as the presumption of regularity. Accordingly, when the admissibility of an electronic record is in issue under section 18 (1) of the ETA, section 18 (3) automatically comes into play[28].
However, a point has to be made that this provision does not apply in the case of a bankers book which, though it is a type of electronic business record, it has a special regime for its admissibility and authentication under section 78A of the TEA.
In the context of electronic communications, Section 19 the Act[29], deals with the attribution of data message by establishing a presumption that under certain circumstances a data message would be considered a message of the originator. Nonetheless, such presumptions do not apply as to the person by whom such a message was sent. This section is applicable to authenticate an e-mail when its admissibility is in question.
The other important provision in the ETA is section 20 of the Act[30].This provision deals with equivalent ways of fulfilling the requirement of the production of an original document in electronic form. It states that if a law requires a person to produce a document or information, that requirement is met if the person produces, by means of an electronic communication, an electronic form of that document or information.
This section also envisages other forms of documents made by using output devices such as printers. This is, however, subject to conditions provided in this provision that is, the integrity of the information contained in a document is maintained if the information has remained complete and unaltered. Additional endorsement or immaterial change, which arises in the normal course of communication, storage or display, does not affect the integrity of the document[31].
OTHER ACCOMPANYING LEGISLATION ON RELEVANCY AND ADMISSIBILITY OF ELECTRONIC EVIDENCE IN TANZANIA
The Electronic and Postal Communications Act of 2010
The Electronic and Postal Communications Act (EPOCA), was enacted prior to the Electronic Transactions Act. Section 164 (1) of the Act[32], provides that “notwithstanding any other law to the contrary: (a) any document, or copy of or extract from any document, relating to the affairs of any person that has been seized or obtained by; (b) any statement of a person relating to the affairs of any person has been seized or obtained by; or (c) any statement of a person relating to the affairs of the person that is made to, an officer of the Tanzania Communications Regulatory Authority in accordance with the provisions of this Act, is admissible in any proceedings with respect to any offence under this Act”.
This provision is limited to criminal proceedings and offences in the EPOCA. This Act also provides, in Section 2 of the Act[33],that the admissibility of documents is not affected by a claim that in the course of a criminal investigation an accused was induced by the authorities of the Tanzania Communications Regulatory Authority to provide evidence on account that no prosecution will be instituted against him.
Prevention of Terrorism Act of 2002
The Prevention of Terrorism Act deals with lawful interception of communications. The definition of communication in section 3 of the Act[34], is broad, and may include electronic communications.
Section 30 (4) of the Act[35],defines the word ‘data’ as information recorded in a form that can be processed by equipment operating automatically in response to instructions given for that purpose. As far as evidence is concerned, Section 31(4) of the Act[36], provides that any information contained in a communication intercepted shall be admissible in proceedings for an offence under the Act as evidence of the truth of its contents, notwithstanding the fact that it contains hearsay. Arguably this section modifies the application of the hearsay rule in the context of electronic evidence in criminal proceedings under the Act[37].
Written Laws (Miscellaneous Amendments) Act 2007
This piece of legislation, inserted three sets of important amendments to the Evidence Act, namely sections 40A, 76 and 78A.These changes were made through Sections 33, 34 and 35 of the Law respectively[38]. The first set of amendment that is section 40A of the TEA, deals with the admissibility of electronic evidence in criminal proceedings. The second and third sets of amendments (sections 76 and 78A) are closely related. They deal with banker’s books[39].
You may also read read part two of this Aricle
Citations
[1]http://www.legalmatch.com/law-library/article/electronic-evidence/html. Accessed on 05th December, 2017 at 17:00 HRS
[2]Ibid
[3]Adam J. Mambi (2013). Electronic evidence in Tanzania: Digital Evidence and Electronic Signature Law Review: 123-127.
[4]http://www.legalmatch.com/law-library/article/electronic-evidence/html. Accessed on 05thDecember,2017 at 17:00 HRS
[5]Ibid
[6]http://www.legalmatch.com/law-library/article/electronic-evidence/htmlAccessed on 5 May 2017 at 10:00HRS
[7]Adam J. Mambi (2013). Electronic evidence in Tanzania: Digital Evidence and Electronic Signature Law Review: 123-127.
[8] [1997] TLR 165 (CA)
[9]Adam J. Mambi (2013). Electronic evidence in Tanzania: Digital Evidence and Electronic Signature Law Review: 123-127.
[10]The Evidence Act [Cap 6 R.E 2002]
[11]Adam J. Mambi (2013). Electronic evidence in Tanzania: Digital Evidence and Electronic Signature Law Review: 123-127.
[12]The Evidence Act [Cap 6 R.E 2002]
[13]The Evidence Act [Cap 6 R.E 2002]
[14]Ibid
[15]The Evidence Act [Cap 6 R.E 2002]
[16]Ibid
[17]Retrieved from http://tanlex.wordpress.Com/admissibility-of-electronic-evidence-in-Tanzania/. Accessed on 05thDecember 2017
[18]Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany.
[19]The Electronic Transaction Act, No. 13 of 2015
[20]Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany
[21]The Electronic Transaction Act, No. 13 of 2015
[22]Miscellaneous Civil Cause No.6 of 2015, HCT (Iringa District Registry), Njombe (Unreported).
[23]The Electronic Transaction Act, No. 13 of 2015
[24]Ibid
[25]Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany
[26]The Electronic Transaction Act, No. 13 of 2015
[27]The Electronic Transaction Act, No. 13 of 2015
[28]Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany
[29]The Electronic Transaction Act, No. 13 of 2015
[30]Ibid
[31]The Electronic Transaction Act, No. 13 of 2015
[32]The Electronic and Postal Communications Act 2010
[33]Ibid
[34]Preventions of Terrorism Act of 2002
[35]Ibid
[36]Ibid
[37]Preventions of Terrorism Act of 2002
[38]Written Laws (Miscellaneous Amendments) Act 2007
[39]Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany
