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
[8] http://www.tanzania.go.tz/pdf/ictpolicy.pdf visited on 10/10/2007
June 10, 2010 at 5:11 pm
Fair enough!
thanks
June 10, 2010 at 9:14 pm
Good to hear from you Joseph.
Please send comments which can improve our blog for the benefit of Tanzania.
November 3, 2010 at 9:30 am
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.
November 4, 2010 at 9:53 am
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.
January 10, 2011 at 7:09 am
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!
February 25, 2011 at 7:56 am
i realiz much, tanzania niw hv developed
February 25, 2011 at 7:56 am
fine, i appreciate the website much
April 12, 2011 at 12:36 pm
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
August 22, 2013 at 2:27 pm
Hey! Pal, the court will warn itself before inviting electronic evening in every case in question. The court must engage the IT experts and the authorities concerned, though the procedures are not there, but the court is in good line to use the experts and authorities like TCRA e.t.c, though it must be considered and the law must provide the procedure to that effect.
I humbly submit,
Isaac Mwaipopo from Arusha, Tanzania.
April 28, 2011 at 1:22 pm
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.
November 28, 2011 at 12:14 pm
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
December 7, 2011 at 12:49 pm
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
December 16, 2011 at 6:36 pm
keep it up.. and god bless you!!!!
December 23, 2011 at 5:25 pm
good work
March 14, 2012 at 4:15 am
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
April 18, 2012 at 7:47 pm
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!!!
May 8, 2012 at 12:50 pm
I was wondering to have elaborative procedures on having a witness adducing evidence through video teleconferencing, i have a client who can’t travel from Belgium to Dar on the next month’s session before Makaramba, J.
Although i haven’t got the exact last year’s amendment, i sure have learnt some good stuffs from your contributions, KEEP IT GOING.
Adv. Sweetbert
December 13, 2012 at 8:41 am
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
May 31, 2016 at 1:04 pm
I want to get your help in the specific roles performed by computer forensics in the administration of justice in Tanzania.
January 23, 2013 at 4:01 pm
Thanks for the sharing of the knowledge that is what is meant by being an academician
February 20, 2013 at 9:59 am
Good job Dr.Ubena if iam not mistaken,from mr.mwasomola,burton dom
March 17, 2013 at 1:59 pm
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May 22, 2013 at 6:11 pm
hello, how are you… i need help on authenticity of electronic evidence in Tanzania
June 25, 2013 at 1:52 pm
So whats the latest position on admisibility of electronic evidence in civil cases?
January 18, 2014 at 8:34 am
great job,…three laws to be released this year,that is Electronic Transaction Act,Data protection and transaction act ,and lastly the Computer and System misuse Act.Lets hope this three laws will help to reduce the e-crimes
January 29, 2014 at 3:24 pm
nice paper.
February 3, 2014 at 9:31 am
Hallow, Mr.Ubena,
is this website alive?
April 14, 2014 at 1:50 am
The facts as well as tips precise useful if you ask me.
Many thanks enormously a lot beforehand. Your current
acquaintance on this theme is a plus, I’m glad in which here’s regain.
Many thanks for a second time!
April 21, 2014 at 3:07 pm
These Amendments are apt to be applicable in criminal matters and this paves a way to a la cuna in dealing with civil matters, but I appreciate the contribution that have been made by justice Nsekela as his stand have established a precedent to be followed in civil cases but we still need certainty in the law because it is unlikely to get all the Judges & Justices to reason as Nsekela did because some judges may be conservative in embracing these challenges brought by the ICT sector and thus jeopardize the whole notion of meeting the ends of justice in cases of these nature.
Thanks.
April 22, 2014 at 4:30 pm
I am very glad to be acquainted with this new concept of ICT LAW in Tanzania I actually conglaturates u all. LL.B,LL.M mzumbe university in Tanzania.LLD candidate in UK
April 24, 2014 at 7:58 pm
good cause people are not aware about the e-evidence
June 25, 2014 at 10:58 am
This was just what I needed, thanks a lot learned brother!
October 21, 2014 at 10:22 am
It is a nice work to contribute to sharpen the legal regime in Tanzania
Young professionals and new learner have the duty to co-operate with old cyber law experts to inherite the knowledge and skills and be ready to service the nation and its people
March 13, 2015 at 8:30 am
i like your work mr. but who is going to tender them to the court as far as there is an issue of lack of knowledge on IT to most of our lawyers . Wil it be fair for an edited video to convict an innocent person en if not according to the ICT complications what will be the right track for the e-evidence to be relevant
March 14, 2015 at 8:55 am
we need to be current in this way
March 14, 2015 at 9:00 am
i studied an e law during my degree but some tips here have widen up my mind
April 7, 2015 at 7:06 am
The received laws must be applicable to our courts where there is LACUNA in our Laws.
It is the impact of JALO (JALA) in the administration of Justice.
I like the presentation
May 27, 2015 at 5:34 pm
Just good and pleasing
June 18, 2015 at 10:21 am
Though the 2007 amendment is silent on procedure, Tanzania being not an island, the procedure obtaining in other jurisdictions, particularly common law jurisdiction may be persuasive.
I am aware of there being a new law providing, for among other things, electronic evidence, though it is yet to be operational. Perhaps, after the operationalization of the law, procedural rules will also be put in place for admissibility of such evidence.
February 18, 2016 at 3:05 pm
It is a good research
March 18, 2016 at 5:49 am
Dear Presenter,
Many thanks and much appreciated for your presentation. This matter makes sense a lot and you have tried to extract as much as you can, congratulations. You have done the right thing because this presentations sheds some light on the admissibility of electronic evidence in Tanzania. I read other members opinions and contributions they are extremely fantastic and excellent. I would like to advice you to continue with your research on this matter and we will be there to contribute on this matter.
Much appreciated
August 8, 2016 at 4:09 am
Thank you Mr,previous I have a knowledge like a story,but now I have got the concept,
August 18, 2016 at 6:43 am
hey guys, I am also in this law field and being interested doing a research. The problem I face is about the admissibility of electronic evidence in primary courts, does section 40 A (TEA) applies in these courts?. Secondly, how about the procedures to be followed.
September 13, 2018 at 4:33 am
Good work from the author on admissibility of electronic evidence in Tanzania, thanks for sharing with us the knowledge.