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

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[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