Electronic Evidence in Tanzania and its Challenges

Abstract:

In the past few years, the world has experienced some major changes due to the advancement of science and technology. This technological advancement tends to affect almost every field and sector across the world. Under such circumstances the legal field cannot keep lagging behind but cope with the changes and improvements the world is currently facing. This accounts for the rise or the birth of electronic evidence which owes its origin to technological advancement .Basically the court and the whole of the legal field in general had to cope with the contemporary world and at the pace of the world to ensure justice is done. This is because it is a common knowledge that evidence is the cornerstone of the judgments given in the courts. Therefore allowing the application of electronic evidence eases the work of not just the court but the parties involved in the dispute as well in proving their case in terms of prosecution or defense. Had there been no application of electronic evidence to mean that any evidence that is in electronic form is not admissible, can we really say or argue that our courts are just? It is most probably a NO.

This article therefore intends to discuss on the development of electronic evidence in Tanzania. In my discussion, I will begin with a conceptualization of electronic evidence, the first hindrance while dealing with the development of electronic evidence in Tanzania and the Admissibility of Electronic Evidence in Tanzania with the aid of case Laws. Thereafter, I will go to discuss the Rules on Admissibility of Electronic Evidence. The further part of the article provides the Nature of Electronic Evidence and how it is created. The next part of this article includes certain Challenges associated with Electronic Evidence. Additionally and lastly, I thought it prudent to provide a brief discuss on the analysis of the evidence act and the Authentication of electronic evidence.

1.0 INTRODUCTION

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 documents¹. One of the challenges brought by technological advancement is the use of electronic evidences in court. This is so because people for instance, in conducting their business are doing so electronically. And this challenge is posed in the Law of Evidence Act² since it does not cover electronic evidence, such as data stored or transmitted using a computer³

In 2019, the Law of Evidence Act (TEA)⁴ was amended to provide for admissibility of electronic evidence. However, the aforesaid amendments did not address the challenges of electronic evidence.

2.0 CONCEPT OF ELECTRONIC EVIDENCE

In order to understand clearly what electronic evidence entails, it is necessary to know the term ‘Evidence’ and ‘Electronic’ the term ‘Evidence’ means information that is given by a witness whether orally or in writing before the court of law in proving or disapproving certain facts at hand⁵. While Electronic means “accessed by means of computer or any other device”.⁶ Therefore, electronic evidence is electronically stored information which is admissible and used as evidence in the court of law.⁷ Since, it can be stored in any kind of computer device.⁸ Hence, electronic evidence is regarded as documentary evidence.

Electronic evidence is also known as digital evidence or computer evidence; all three terms express some aspects of our pre theoretical intuitions that this type of evidence has some distinctive features that set it apart from other means of proof. Electronic evidence means the information of probative value that is stored or transmitted in binary form OR an information stored and transmitted in binary form that may be relied on in court. In his treatise, Casey define digital evidence as ; “any data stored or transmitted using a computer that support or refute a theory of how an offense occurred or that address critical elements of the offense such as intent or alibi”.⁹ Hence, electronic evidence is regarded as documentary evidence¹⁰.

Also, Electronic Evidence is defined under Section 64A (3) state that “means any data or information stored in electronic form or electronic media or retrieved from a computers system, which can be represented as evidence”¹¹

However, the definition of Electronic evidence is limited to those items offered by the parties as a party of the fact-finding process. This contextual, teleological aspect of the definition excludes, for instance, electronic documents that are created during the trial in a purely administrative capacity, such as email reminders of the date of hearing sent to the parties by the court administrators. Of course, the very same data can be electronic evidence, if offered in an appeal to show that the information was not sent out in a timely fashion if it is a part of the complaint.

In general Electronic evidence can be defined as data (compromising the output of analogy device or data in digital form) that is manipulated, stored or communicated by any structured device, computer or computer system or transmitted over the communicated system that has potential to make factual account of either part more probable than it would be without the evidence.12

3.0 THE DEVELOPMENT OF ELECTRONIC EVIDENCE IN TANZANIA

The development and use of electronic evidence in Tanzania was traced back from the year 1965 where the Tanzania government received the first computer. The computer was installed at the ministry of finance in Dar es Salaam, (Mgaya 1994; Dinar, 1994)13. The project failed because of the software was not updated and hardware was equally absolute, despite of that there was neither ICT policy nor legislation in the place. Following the failure the Government banned importation of computers and equipment’s in the contrary under GN 42 of 1974.

Ad hoe computer advisory committee in 1980 to scrutinize application for computer importation in Tanzania, (Dinar, 1994)^{12 13 14} as a result Ad hoe computer advisory committee delayed ICT development and its policy framework in Tanzania. Thus information security and electronic evidence issues were never prioritized in Tanzania’s legal system.

The economic liberalization policies in the 1990’s liberalized the banking industry and telecommunication sectors. In order to liberalize telecommunication, an ICT legal landscape had to be put in place. As a result a ban of importation of ICT related equipment was finally lifted in 1993, moreover new policies were adopted and new laws were passed, this includes

a) Telecommunication policy of 1997
b) ICT (Information Communications Technology) policy of 2003
c) Communication Act of 1993
d) Prevention of Terrorism Act of 2002
e) Tanzania Communication Regulatory Authority Act of 2003
f) Fair Competition Act of 2003,

Further, the telecommunication liberalization legalizes private telecom in Tanzania. Thus 1993, Mobitel (Tigo) become the first mobile cellular operator, followed by tritely, which was later followed by Buss (Vodacom) in 2000, Celtel (Airtel) in 2001.¹⁵

Since the installation of computer and technology in Tanzania, court has neither receive the electronic evidence as admissible evidence nor the provision under the Evidence Act¹⁶, has establish the electronic evidence is the relevance and admissible evidence in Tanzania, for the first time the High Court of Tanzania Labour Division, on the case of Trust Bank Ltd v. LeMarsh Enterprises Ltd., Joseph Mbui Magari, and Lawrence Macharia17, in this case the court ruled that electronic evidence is admissible and departed from the strict rule of evidence that is the best evidence rule since the question was whether computer print-out is the banker’s book and also there was a question whether it is an original document or a secondary document. J Nsekela (as he then was) when deciding this case did not ignore the technological development that exist during that time since adopted the provision of the UK laws that is Section 5 of English Civil Evidence Act of 1968 which provides for Electronic evidence in civil cases and in Tanzania Cotton Market Board v. Cogecot Cotton Company SA18, in this case the court had allowed electronic communication mode of sending arbitral award contrary to rule 4 of the Arbitration Ordinance. The award was filed through DHL Courier instead of registered post and it was enforceable. This case provides an opportunity of admissibility of electronic evidence in

Nevertheless, even though courts in Tanzania play vital role in introducing the admissibility of electronic evidence to be used as evidence, the parliament also responds to such judgments made by the court. As a result of the judgement made by J Nsekela (as he then was) the parliament allowed the admissibility of electronic evidence in Tanzania^{17 18 19}.

In addition to that, the admissibility of electronic evidence was also discussed in the case of Tanzania Bena Co. Ltd v. Bentash Holdings Ltd20 where parties communicated by way of exchanged emails for the purchase of a farm and the court tendered such email and was admitted as one of the exhibit.

In addition to that, in the case of Lazarius Mrisho Mafie& another v. Odilo Gasper21 the court also faced the issue of Electronic evidence but in civil proceedings. The court observed that Tanzania Evidence Act does not cover the admissibility of e-mails in civil proceedings since the amendment done only provides for banker’s book to be admissible in civil cases. Furthermore, the court in this case set out some requirements which need to be fulfilled for an electronic generated material to be admissible in the court of law. Hence, the court in this case undertook a task which the parliament has not done.

Therefore, in Tanzania, electronic evidence is recognised and admissible as evidence^{20 21 22}, however the admissibility of it is not that extensive since, the use of electronic stored information as evidence in civil proceedings is not that extensive comparing to the development that are occurring^{23 24}. Generally speaking as of now, record keeping in our banks is to a large extent” old fashioned but changes are taking place. The law can ill afford to shut its eyes to what is happening around the world in the banking fraternity. It is in a definition of banker’s book to include evidence emanating from computers subject of course to the same safeguard applicable to other banker’s book under Section 78 & 79 of the Evidence Act24. The court further pointed out that the law must keep abreast of technological changes because means of business doing are highly noted if this ruling is the departure from the best evidence rule to be a primary evidence and recognition of electronic evidence in Tanzania court without forgetting the electronic disclosure and discovery in court hence admissible.²⁵

Also under the Tanzania Evidence Act26 the law of on electronic evidence is recognized now days, where under the said Section 64A,it provide its recognition as follow:- (1) in any proceedings electronic evidence shall be admissible,

(2) The admissibility and the weight of electronic evidence shall be determined in the manner prescribed under section 18 of the electronic Transaction Act.
(3) For the purpose of this section, "electronic evidence” means any data or information stored in electronic form or electronic media or retrieved from a computer system, which can be presented as evidence”.

Also we have another law of Electronic Commerce Act and Electronic Transaction Act27 which provide for the recognition of Electronic evidence.28

4.0 THE ADMISIBILLITY OF ELECTRONIC EVIDENCE IN TANZANIA WITH THE AID OF CASE LAWS.

Point to note, the Electronic Transactions Act is based on inclusionary rather than exclusionary approach to the admission of electronic evidence. According to section 18(1)29 of the Act prohibit the application of the rules of evidence to deny admissibility of data message (i.e Electronic evidence) on the ground that it is a data massage.

Since the Electronic Transaction Act provides for the special regime of the admissibility of evidence, it prevail over any general law regulating the admissibility of evidence, in this case the Tanzania Evidence Act. this overall scheme of the Electronic Transaction Act has not been read it by the high court of Tanzania in the case that were decided on this Act, that of Emmanuel Godfrey Masonga and William Joseph Mangui30, in this case PW14 sought to tender on behalf of the petitioner an audio CD to prove allegations of violence in the election by the first respondent, the Respondent raised two grounds, first that the PW14 was not a competent witness to tender the audio CD, as was not its author and second, that there were possibilities of tempering with the audio CD. In overruling the preliminary objection, the court held that, his affidavit31, together with an extended examination in chief PW14’s evidence, presented prima facie evidence that satisfied the conditions set out in section 18(2) of ETA32.

In this case the court also made two important remarks. First, admissibility of electronic evidence is one thing and assessing its weight is another thing. in this case court admitted the evidence pending its subsequent discrediting on merit. The second important remark made by court is that sustaining an objection cannot be based on the mere assumptions that it is easy to tamper with electronic evidence. The court overruled the objection against the production of audio CD on the mere assertion that the audio CD, being in digital form, was easily tempered with.33

The electronic evidence in Tanzania is admissible if there is the establishment of electronic document for legal proceedings, and on doing so the court has to consider the relevancy and authenticity of that electronic document.

In United State case ofJack R. Lorraine and Beverly Mack v. Market American Insurance Company34. In this case both Plaintiff and Defendants submit emails as evidence to support their claims, however, the judge founds that neither the parties had taken enough steps to establish the admissibility of electronic evidence both sides emotions were dismissed, with no prejudice so that they can redo necessary basic works and resubmit. As they did the work; judge himself took advantage of writing thoroughly and comprehensively the extent of submitting electronic evidence and thus create a resource of future counsel who wish to rely on electronic documentation as a source of evidence.35

[...]

¹ http://www.uneca.org/aisi/nici/Documents/CvberLawsEJust2006/CYBER%20LAWEAC%20bv%20Ada m%20Mambi.ppt (Accessed on 6 March 2021)

² Tanzania Evidence Act 1967, Act no. 6 of 1967 [R.E. 2019].

³ E. Cassey, (2004). Digital Evidence and Computer Crime: Forensic science, Computers, Academic Press, London, Pag. 12.

⁴ [Cap 6 R.E 2019]

⁵ A. Singh, (2007). Principles of the Law of Evidence, Central Law Publications, Allahabad, Pag. 89

⁶ Kenya Information and Communications Act, Cap 411A Rev 2009, Section 2 defines electronic to mean “relating to technology having electrical, digital, magnet, wireless, optical, electromagnetic or similar capabilities.

⁷ J. Mambi, 2010. ICT Law Book: A Source Book for Information and Communication Technologies and Cyber Law, MkukinaNyota Publishers Ltd, Dar-es-salaam, pag 8

⁸ http://www.pisa.org.hk/event/eed.pdf. This includes all technology based evidence for instance, e-mails which people tend to use it frequently for communication, also includes video recording, tape recording, short message services and data files are some of examples of electronic evidence. Therefore, they can be produced before the court of law if they contain the evidence needed. To illustrate, for example A and B entered into an agreement through e-mail and one party breaches such agreement then if a matter is before a court of law and considering the fact that they are admissible as evidence then that e-mail can be tendered as an evidence though subject to some conditions.

⁹ BukhardScharfer and Stephen Manson, “the characteristics of electronic Evidence” in Stephen manson and Daniel Seng (eds.), Electronic Evidence (4thedn, University of London 2017) pg 18

¹⁰ Kenya Evidence Act, Cap 80 of 2009, under section 65(5) which provides for electronic evidence which is produced in the court of law to be deemed as documentary evidence i.e. inter alia a statement contained in a document and included in printed material produced by a computer thus computer- print outs, shall be deemed to be documentary evidence and admissible as evidence in the court of law only if conditions imposed under section 65(6) are satisfied, to illustrate more on electronic evidence to be regarded as documentary evidence the same can be seen under the India Evidence Act of 1872. Nevertheless, the Tanzania Evidence Act under section 64(4) provides that electronic evidence such as printing if they are made in one uniform process they are regarded as primary evidence.

¹¹ Tanzania Evidence Act [Cap 6 of 2019]

¹² Burkhard Schafer and Stephen Manson, “the characteristics of electronic Evidence” in Stephen Manson and Daniel Seng (eds.), Electronic Evidence (4thedn, University of London 2017) pg 20

¹³ Mgaya, K. (1994). Development of Information Technology in Tanzania.Tokyo, Japan: UNU. Retrieved on March 7,2021, from http://unu.edu/unupress/unupbkooks/uu19ie/uu19ie0i.htm.

¹⁴ Dinar, A. (1994).Informatics Policy Studies in Africa: Tanzania, Retrieved on March 7, 2021, from http://www.africa.upenn.edu/ECA/tanzan.html.

¹⁵ Bwalya , Kelvin Joseph.The Hand of Research On E-Government In Emerging Economies,

¹⁶ University of Botswana, Botswana. Pg.91, 92 & 93. [Cap 6 of 1967]

¹⁷ Commercial case no 4 of 2000,(High Court Commercial Division),(Dar es Salaam Registry),(Unreported)

¹⁸ 1997 165 (CA)

¹⁹ In 2007 the parliament enacted the Written Laws (Miscellaneous Amendments) Act of 2007, No 15; this law amended the provisions of the Evidence Act thus by adding Section 40A which allows the admissibility of electronic evidence in criminal proceedings which states “In any criminal proceedings - (a) An information retrieved from computer system, network or servers, or (b) The records obtained through surveillance of means of preservation of information including inter alia electronic transmission, (c) The audio or video recording of acts or behaviors or conversation of person charge, Shall be admissible. Furthermore, the Act amended section 76 of Evidence Act with regard to bankers’ book whereby the amended definition of bankers’ book was that which also covers computer print-outs. In addition to that, the Act also amended the Evidence Act by adding Section 78A which provides for the admissibility of electronic evidence with regard to banker’s book hence, the admissibility of records stored electronically to be used as evidence. However, the Act from the amendment it can be said that it has covered the admissibility of electronic evidence of bankers’ book only with regard to civil proceedings.

²⁰ Tanzania Bena Co. Ltd v. Bentash Holdings Ltd, Commercial Case No. 71 of 2002 (Unreported).

²¹ Commercial case No. 10 of 2008 (Unreported).

²² The Finance Act of 2009, No 14, section 4 as addition of section 10A provides “A court or any other quasi- judicial body shall accept a copy of a book, document, record or an extract thereof collected or

²³ procured in pursuance of section 10 as conclusive evidence of the nature and contents of an electronic document unless the contrary is proved”

²⁴ The Written Laws (Miscellaneous Amendments) Act of 2007, No 15 section 78A which is pari material with Section 78A of The Evidence Act Cap 6 of 2002 as amended in 2019, which was amended through the Written Laws (Miscellaneous Amendments) Act of 2007 No 15, which provides for the admissibility of banker’s book as an electronic evidence in civil proceedings Tanzania Evidence Act [Cap 6 of 2019]

²⁵ Trust Bank case [Cap 6 R.E 2019]