is law of evidence static or dynamic as per legal perspective in Tanzania

INTRODUCTION

Since 1990s, Tanzania has embarked on the use of computers and internet communications in her government transactions and business arena. The citizenry has well engaged in transacting and concluding business transactions via the internet. There is e-government, e-contract, in short e-commerce is growing rapidly in the country. The legal profession has not escaped this technological advancement. Electronic communications have touched the legal fraternity in general and the court in particular. This has created uncertainty to the issues pertinent to electronic information or transaction when is to be tendered in court as evidence[1].

A thing to examine here is electronic evidence admissibility in Tanzanian courts, consistency on applicability of electronic evidence in various law suits or criminal cases in Tanzania, assessment on the current legal regime whether it meets the demands of the day and propose any measure viable to electronic evidence.

Tanzania Evidence Act[2]was initially based on the Indian Evidence Act[3], since adoption by Tanzania of this Indian Evidence Act there has been several amendments which amended various provisions of this law to conform with various social and technological changes. As to legal perspective in Tanzania, law of evidence is not static but dynamic due to various changes made in regarding to provisions of TEA.

Scientific and technological changes has pressured changes in legal system particularly on electronic evidence and its admissibility as exhibit before court of law. Current development in information and communication technologies have brought about changes that have revolutionaries traditional way of conducting business. Thus, the development of Digital Technology in line with e-commerce has a great impact on commercial laws, Evidence laws and other related area of laws. For instance, under Tort Law the breach of duty by a person, giving rise to tort liability can happen in both the physical world, byword, or under cyberspace such as defamation by website, email or negligence advice communicate electronically. All of these presuppose that there are several changing legal guidelines in relation to developments in ICT[4]

AMENDMENTS OF TANZANIA EVIDENCE ACT

Before 2007 there was no 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. In Tanzania the urge to appreciate the development in communication technology for instance, was underscored by the Court of Appeal of Tanzania in the Case of Tanzania Cotton Marketing Board v. Gegecot Cotton Company SA[5].Where it held that the word registered post in the case before it had to be interpreted widely in order to take into account the current development in communication technology, such as courier poster services.

In 2000, in the case of Trust Bank ltd v. Le-Marsh Enterprises Ltd and another[6], the court of law ruled that, electronic evidence is good evidence and admissible. In admitting electronic evidence ,the trial High Court Judge stated that, Courts of Law should not be ignorant of the modern business method and shut its eyes to the mysteries of the computers. That was unprecedented approach and step because  most laws related to business, civil matter and evidence were made to suit physical world on the use of paper based methods.

In the case of Lazarus Mrisho Mafie and another vs Odilo Gasper ,Kilenge[7], Hon Makaramba J in his ruling, made rules on admitting E-Mails as exhibit. Making rules on admissibility of E-Mails was among steps on allowing e-evidence being used as evidence before court of law. By this ruling, judges and magistrate got foundation on dealing with e-evidence apart from mails, these rules are applicable in admitting other forms of e-evidence before court of law.

Written Laws(Miscellaneous Amendments) Act[8]came with different provisions which amended TEA to allow admissibility of electronic evidence. Amendments amended section 40, 76 and 78. Section 40 amended by adding another section 40A which opened doors for documents retrieved from computer being used as part of evidence. This amendments in general, perished away an old system of accepting physical documents in hard copies and introduced another system where computer based evidence include computer printout may be admitted before court of law as exhibits.

Section 40A provides that,

40A. In any criminal proceedings –

(a) an information retrieved from computer systems, networks or servers; or

(b) the records obtained through surveillance of means of preservation of information including facsimile machines, electronic transmission and communication facilities;

(c) the audio or video recording of acts or behaviors or conversation of persons charged, shall be admissible in evidence.

Section 78A allows electronic banker's books being used as evidence in case a party need to use it, the section provides that,

78A.-(1) A print out of any entry in the books of a bank on micro-film, computer, information system, magnetic tape or any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such print out, and when such print out is supported by a proof stipulated under subsection (2) of section 78 that it was made in the usual and ordinary course of business, and that the book is in the custody of the bank it shall be received in evidence under this Act.

 (2) Any entry in any banker’s book shall be deemed to be primary evidence of such entry and any such banker’s book shall be deemed to be a “document” for the purposes of subsection (1) of section

Written Laws (Miscellaneous Amendments) Act[9], amended section 3 of The Evidence Act to allow presentation of evidence to court through video conference and teleconference. This is another step taken to reform TEA so as to conform to technological advancement in social activities, before this amendment there was no room to present evidence through video conference or teleconference, all evidence were to be presented physically by appearing before judge in court. These changes now plays big role in fighting against covid-19, few months ago courts in Tanzania allowed hearing to be done online through electronic means to reduce the risk of transmission of corona virus, it worked, and this become easily for advocates and their clients to appear before court not physically but online from wherever they are to conduct their cases. All these online activities of the court are backed up with amendments of section three as indicated above.

Electronic Transactions Act[10] and admissibility of e-evidence. ETA expands the scope of what is electronic evidence to include data messages, recorded voice on CDs etc. Also, ETA pose a standing that no court shall reject data message as evidence by using any provision of TEA. Section 18(1) of ETA[11] provides that.

“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.

Section 64A (3) of TEA[12]as amended by section 46 of Electronic Transaction Act[13], expands meaning of a term electronic evidence to include any data or information stored in electronic form or electronic media or retrieved from a computer system which can be  used as evidence.

CONCLUSION

Nevertheless, the work has mainly discussed the law of evidence, the way evidence can be treated when it comes for electronic stored evidence. But electronic communications affects other branches of laws include laws of contracts, civil procedure laws, land laws, labor laws, commercial laws etc. All these call for the legal fraternity to do something to spearhead changes in order to keep abreast with the tremendous changes taking place in the country because of fast growing electronic communications. In the final analysis to ensure that justice is done to all Tanzanian people through accessing our courts of law.

REFERENCE

BOOKS

S.Mshana, (2008) Law of Evidence, Dar-es-salaam police academy, Dar Es Salaam

Abhinav Prakash, (2012), Law of Evidence, Universal Law Publishing Co. PVT. LTD, New Delhi

L. B Curzon, (2002), Dictionary of Law, 6th Ed, Pearson Education Limited, England

 

STATUTES

Written Laws Miscellaneous Amendment Act, No 2 of 2007

Written Laws Miscellaneous Amendment Act, No 2 of 2011

Electronic Transaction Act [No 3 of 2015]

The Evidence Act [CAP 6 R.E 2002]

 

CASES

Tanzania Cotton Marketing Board v. Gegecot Cotton Company SA[1997] T.L.R 165 Commercial case

Lazarus MrishoMafie and another vs Odilo Gasper ,Kilenge, commercial case, no 10 of 2018

Jonas Nkize v Republic (1992) TLR 213

John Makindi v Republic [ 1961]  EA

---

[1]http://repository.out.ac.tz/297/1/MKANDYA_B._H_LLM%2C_IT_%26_T_2011.doc

[2]Cap 6 of 1967

[3]of 1872 (“IEA)

[4] Ibid

[5][1997] T.L.R 165

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

[7]Commercial case No. 10 of 2018

[8] No 2 of 2007

[9]No 3 of 2011

[10]No 3 of 2015

[11] Ibid

[12] Ibid

[13] Ibid