ADMISSIBILITY OF ELECTRONIC EVIDENCE IN TANZANIA


ABSTRACT

The rapid increase of employing IT in daily life in Tanzania has brought many challenges. 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 documents[1].However the trend has changed recently. This paper therefore tries to give the highlight of Electronic Evidence in Tanzania.

It was not until 2000 when the wisdom of the High Court of Tanzania was called upon to rule whether electronic evidence is admissible as best evidence in the case of Trust Bank Ltd v. Le-Marsh Enterprises Ltd., Joseph Mbui Magari, Lawrence Macharia[2] in this case the court ruled that the electronic evidence is admissible in Tanzania courts and this was a departure from the strict rule of best evidence rule.

In admitting electronic evidence the judge stated that the court should not be ignorant of modern business methods and shut its eyes to the mysteries of the computer.[3]

This decision shows the judicial activism and the role of Judiciary in filling the gaps left by the legislature.

The Legislature[4]on the other hand responded by enacting Electronic Evidence Amendment Act 2007 which provided provision for the reception of electronic evidence in courts of law in Tanzania. The new section has been added in the Tanzania Evidence Act 1967, the said section is section 40 A.

This section provides inter alia that in any criminal proceedings-Information retrieved from computer systems, networks or servers; 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 behaviours or conversation of persons charged, shall be admissible in evidence

Section 76 of the Tanzania Evidence Act was also amended to the effect that the bankers book include 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.

Section 78 of Tanzania Evidence Act is also amended to include Section 78A a printed out 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 or other process which in itself ensures the accuracy of such print out, shall be received as evidence.

Section 78A (2) provides that the records received under section 78A (1) shall be deemed to be a primary evidence and a “document”[5] for the purpose of section 64(1) of the Tanzania Evidence Act.[6]

It is worthwhile to not that the wording of section 40A indicates that the provision is limited to criminal proceedings and not applicable in Civil suits proceedings.

In conclusion suffice to say that Tanzania response to IT challenges is not only in admissibility of electronic evidence but also have gone as far as enacting other IT related legislations[7] and the National ICT Policy of 2002 which indicates the vision of Tanzania government on ICT sector.[8]

REFERENCES:

STATUTES

Electronic Evidence Amendment Act 2007 is found in the Written Laws Miscellaneous Amendment Act 2007

Written Laws Miscellaneous Amendment Act, No. 15 of 2007 available at www.parliament.go.tz

Evidence Act No.6 of 1967 available at www.parliament.go.tz

Copyright And Neighbouring Right Act 1999 available at www.parliament.go.tz

Communications Act 1993 available at www.parliament.go.tz

Tanzania Communications Regulatory Authority Act 2003 available at www.parliament.go.tz

POLICY

National ICT Policy 2002 available at http://www.tanzania.go.tz/pdf/ictpolicy.pdf

CASE LAW

Trust Bank Ltd v. Le-Marsh Enterprises Ltd., Joseph Mbui Magari, Lawrence Macharia Commercial Case No. 4 of 2000

THE LINKS

1. http://www.uneca.org/aisi/nici/Documents/CyberLawsEJust2006/CYBER%20LAW-EAC%20by%20Adam%20Mambi.ppt visited on 09/10/2007

2.www.parliament.go.tz visited on 10/10/2007

3. http://www.tanzania.go.tz/pdf/ictpolicy.pdf visited on 10/10/2007

4. http://www.lrct-tz.org visited on 10/10/2007

5. www.tcra.go.org visited on 10/10/2007


[1]Documents in this respect do not include those kept in electronic form http://www.uneca.org/aisi/nici/Documents/CyberLawsEJust2006/CYBER%20LAW-EAC%20by%20Adam%20Mambi.ppt visited on 09/10/2007

[2] Commercial Case No. 4 of 2000

[3] Trust Bank Ltd. V. Le-Marsh Enterprises Ltd., Joseph Mbui Magari, Lawrence Macharia ( supra).

[4] www.parliament.go.tz visited on 10/10/2007

[5] However there is ambiguity here, does this mean the printed out information or even the information in the soft copy ( the information recorded or stored in the computer or other electronic device as stated in section 40A before being printed out) ? Or any form be it soft copy or hard copy?

[6] Act No. Of 1967

[7] Copyright and Neighbouring Rights Act 1999 and the Tanzania Communications Regulatory Authority Act 2003, all these Acts can be found at www.parliament.go.tz

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16 Responses to “ADMISSIBILITY OF ELECTRONIC EVIDENCE IN TANZANIA”

  1. Fair enough!
    thanks

  2. Goodluck A Mwangomango Says:

    I am particulary doing reaserch on the topic- Law and increase in mobile phones uses in facilitating crimes in Tanzania.

    This is compusolry to fulfil the requirement of :LL.B Programme at University Of Dar es Salaam.

    • Good to hear from you Goodluck.

      I have sent you an e mail.

      If you have anything of interest and it relates to ICT law in Tanzania please send to me and I will post it here. This is the blog for all who like ICT and it regulatory mechanisms.

      Please invite your friends to visit the blog and offer comments which can improve it.

  3. I am very glad to congratulate you for specializing on that very important new challenge into the new revolution of computer technology. keep it up and i wish we are going to share more on this new amendment to the Evidence Law.
    Thanks!

  4. i realiz much, tanzania niw hv developed

  5. fine, i appreciate the website much

  6. ANGOLILE RAYSON Says:

    Thanks a lot for up dating. let me contribute just few words in my observation of admissibility of electronic evidence. Tanzania is not an island that is unreachable by other people. appreciation should go direct to justice Nsekela for his wisdom and just decision on said commercial case.

    though, the amendment of 2007, allow admissibility electronic evidence, as per section 40A as additional to Cap 6. the provision in my opinion is SILENT on the procedures on how it should be received and tendered before the court, since the reception clause is no longer entertain in Tanzania, where should we get the admissibility procedures of Electronic evidence.

    I think, there is a need to have an elaborated provision for such matters.

    I thought before that, the said amendment could provide us with essential guidance on how to understand electronic evidence and how to use this successfully in litigation and other means of dispute resolution. This title brings together all the issues relating to disclosure and procedures in admissibility of electronic evidence.

    finally, my suggestion, the added provision since admit electronic evidence without providing procedures, my appeal is that Information Technology Act, should have put down the list of procedures and necessary condition for admissibility.
    thanx

  7. kato clemence ruta Says:

    hey brother, how do you do? i can’t hesitate to pay my warmest congrats on the work you have done so far. currently am doing my research on electronic evidence. my topic is ”a comparative analysis on admissibility of e-evidence between tanzania india and england. may you help me on how i should formulate chapter 3 as well as some materials on area of my study? in will be much more thankful for your help.

  8. Daniel Masambu Says:

    with regard to changes brought by ICT our Tanzanian penal code should be amended particular on the elements of theft, it is clearly known that in order to convict accused under theft there must be asportation (movement) of the property but due to development of ICT a person (accused person) can infringe copyright without moving the whole property (copying).also intellectual property laws as well as electronic laws should be amended to meet the current changes

  9. Jesse Temba Says:

    hey guys, am about to be a graduate in L.L.B am feeling a concern to crop up with a research topic in this area of ICT particularly the law of evidence and e-commerce and the law if we should select a topic in this regard I Shall thereafter post the entire topic here to help us to reach the promised land

  10. keep it up.. and god bless you!!!!

  11. irene biseko Says:

    good work

  12. sylvia leonidas Says:

    its gud to see our laws improving…..much thanx to the people who have writen this article,it has helped me in my research.

    sylvia leonidas

  13. RICHARD MZULE Says:

    Yes its a little bit development to recognize electronic evidence in this world of science and technology. Tanzania can not escape from the wind of electronic communications whereby most transactions are likely to take place therein. Being the case there is a great need of improving our legal framework so that we can be able to be in a safe zone. The task we have now to my opinion is that we don’t have a strong legislation to control cyber crimes generally, also the procedures of collecting data messages is still a problem, ways of storing electronic data is also a problem. So i request for all of us to air out our opinion so that we help our country since our dreams lies in this Nation. I thank much brother Ubena for what you are doing, thats what we call “UZALENDO” big up!!!

  14. Asherry Magalla Says:

    thank you Mr, for the good presentation on the matter of e-evidence, but i would like to ask you something, do these amendments allow the admissibility of e-evidence in civil matters? secondly how can the amendments regulates the issues of e-cheque? thank Sir

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