Sources of evidence law in Tanzania.

PRELIMINARY

Where there is a claim or charges against a person, a court cannot proceed issuing orders basing on the subject matter of the claim, or cannot convict a person charged with any criminal offence unless the evidence in support of the claim or charge is given. One can simply define evidence as any of the material items or assertions of fact that may be submitted to a competent court as a means of ascertaining the truth of any alleged matter of fact under investigation before it[1]. Basing on section 2 of The Evidence Act[2], “evidence" denotes the means by which an alleged matter of fact, the truth of which if submitted to investigation, is proved or disproved; and without prejudice to the preceding generality, includes statements and admissions by accused persons[3]. Evidence can be anything proving or disprove the existence of particular facts or events, evidence can be objects (material things), statements or facts, documents, or video and anything which connects the offence as to whether committed or not.

There are several types of evidence which are recognized and subject to use before court of law such as, oral evidence which include statements made by parties or witnesses in the court of law, documentary evidence which include all written documents submitted before court for inspection by a judge or magistrate, direct evidence which involves evidence of facts which is actual in issue perceived by a witness with his or her senses, circumstantial evidence which is not evidence of facts in issue but legal relevant to the fact in issue, real evidence which are material objects submitted before court for inspections, extrinsic evidence which is oral evidence given in connection with the written evidence, hearsay evidence which is evidence of facts not actually perceived by a witness but proved to be said by someone else, primary evidence which itself suggests best evidence rather than secondary evidence, secondary evidence is another type of evidence unlike to primary evidence, secondary evidence include evidence which are not primary evidence such as copies of original documents they are secondary because they are produced from original document. The submission of original documents before court is more desirable than using copies of the original. Other types of evidence include original evidence, derivative evidence, parole evidence and prima-facie evidence.

SOURCES OF EVIDENCE LAW

The Evidence Act[4] (T.E.A) is a major legislation governing how, when and what evidence should be submitted before court of law to prove or disprove facts. Submission of evidence and exhibits is not a random process, is a procedure which is provided within T.E.A and must be followed mutatis mutandis to avoid prejudice to the law. The statute is divided into seven chapters with parts in it. Chapter one simply covers the preliminary issues such as title of the statute, the scope of its application, interpretation of words written within statute etc. Chapter two of the statute is divided into nine parts, part one which is construed of section 7-18 covers relevancy of facts as to fact in issue, it elaborates generally on which facts are relevant to the fact in issue and other which are irrelevant to the fact in issue. This part lays a foundation under section 7 that evidence may be given of facts in issue and relevant facts. Facts in issue are major facts which are in dispute while relevant facts are minor facts which are not facts in issue/dispute but they are too connected to facts in issue.

Part two of chapter two to say section 19-26 covers the admission of facts. As per section 19, admission is simply accepting facts as true by a party in a suit. This part provides on what is admission, how to deal with admissions made by parties to a suit or their agents, admission by third parties not party to a suit, oral admission regarding content of the document etc. Part three is about confession, confession is the same as admission but confession happens in criminal cases while admission happens in civil suits. Part four provides on how to handle statements by a person who cannot be called as a witness such as people with immunity, dead people etc. Part five is about statements under special circumstances, part six is about extent to which statements are to be proved, part seven is relevancy of judgments[5] (precedents), part eight is relevancy of opinion of a third person or expert etc.

Chapter three is made up of seven parts where the parts elaborate on facts requiring no proof such as facts which are judicially noticed and facts which already admitted by parties. This part also covers on how to deal with oral evidence, documentary evidence, bankers’ books, public documents, presumption as to documents, the exclusion of oral by documentary evidence etc. The Evidence Act is a major statute which is also providing on how to handle witnesses. The statute is providing on how and when to examine witnesses, cross-examination and re-examination of the witnesses. The statute provides also on competency, compellability and privileges of witnesses. Chapter eight provides on improper admission and rejection of evidence where the chapter lays a foundation on what kind of evidence to be adduced before court and which circumstances may affect admissibility of evidence before court.

The Evidence Act[6] also introduce the applicability of electronic evidence in Tanzania as per section 40A of the Act, the evidence Act allows the use of information retrieved from computer system, the audio or video recording of acts or behaviors or conversations of persons as evidence. Since 2007, Tanzania started to rely on electronic evidence after addition in T.E.A of the provisions covering electronic evidence.

Economic and Organized Crime Control Act[7] (E.O.C.C.A), is another statute which provides on how to collect and handle evidence relating to economic offences. The statute does not operate on its own on economic offences but it adds other provisions which goes hand in hand with T.E.A. Section 46 of EOCCA requires that all procedures regarding production, reception and evaluation of evidence to be dealt in a manner stipulated under T.E.A. Section 47 provides on manner of obtaining and sources of evidence, subsection 1 and 2 of section 47 provides that, a court of law when hearing economic related offenses, it may accept and received any evidence from any party among the contesting parties if it think such evidence is necessary for determination of inquiry. Evidence in economic offences must be under oath or affirmation except for a child of apparent age of or below fourteen years who do not understand the meaning of oath or affirmation.

Generally, section 46-56 provides all necessary requirements in handling evidence in economic offences. Apart from section 46-48 which already explained above, the statute provides on immunity and protection of a witnesses while testifying. Section 53 provides that, when an inspector general of police is of the opinion that the witness is in danger of harm after testifying, he may arrange to provide security to a witness himself or to his entire family. Section 54 provides on immunity of witnesses when testifying, some witnesses are legally prohibited to disclose classified information and the court may, on its own discretion, compel a witness to depose those classified information in a manner which will not harm public interests or in a manner which will not incriminate a witness.

Economic and Organized Crime Control Rules[8], also adds some provisions regarding evidence. Rule 19 provides that, a court may, on an application by either party allows s witness to give evidence without being present in the courtroom through a video link. This system mostly was used during the eruption of covid-19 when social distance was necessary to reduce the spread of corona virus. Rule 20 requires proceedings to be recorded and to be stored for the access by parties, or advocates and the entire record of the proceeding is legally accepted as part of the valid evidence if they’re to be used for future cases.

The Wildlife Conservation Act[9], is a statute which in some part covers issues relating to evidence such as burden of proof under section 100. As per section 100, the burden of proof lays to the person charged, the provision requires that, in any proceeding for the offence of unlawful hunting, killing or capturing an animal contrary to the law, the burden to prove that the animal was hunted, killed, or captured pursuant to, and in accordance with the terms of a license issued shall lie on the person charged. Section 101 provides on how to handle or deal with evidence subject to decay or destruction or depreciation. The court on its own motion or after application by prosecutor may order disposal of evidence subject to destruction or depreciation, the disposal order stands as sufficient exhibit in any matter in dispute before court.

The Criminal Procedure Act[10], this is another legislation which is too connected to the Evidence Act and goes hand in hand with the Act in providing rules and procedures of collecting evidence. The C.P.A under section 38-45 provides on search and seizure, basing on the provisions at that part, the police officers are allowed to enter into any premise to conduct search and seize some materials or objects which are connected to the crime. The provision provides on how to collect evidence which later will be used before court of law. The criminal procedure Act provides on modes of recording evidence before court of law by magistrate or judge as per section 210 of C.P.A. The C.P.A provides on modes of interviewing witnesses, time limit of interrogation and record making of the interview. The provisions of C.P.A goes further and shows how the examination, the cross examination together with re-examination are to be done before court of law, it shows what kind of questions to be asked during examination and chief and those which are not allowed.

CONCLUSION

Precedents is a general source of law, precedents or case laws are the decision of the High Court and Court of Appeal which lays rules and procedures on how to handle a particular legal issue or which gives broader interpretation of laws. The precedents are binding to subordinate courts and they’re must be followed decisions. When High Court directs something in a judgment, that thing become law and the subordinate court will follow the decisions of the High Court of Court of Appeal. Hence, when a court establish a particular rule governing a mode to handle particular evidence, that because a part of the evidence law. Another general source of law is Constitution of United Republic of Tanzania, all laws are made in conformity with the constitution hence the foundation of all laws is the constitution.

 

REFERENCE

BOOKS

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

S. L. Salwan & U. Narang, (2013), Legal Dictionary, 23rd, Academic (India) Publishers, New Delhi

 

STATUTES

The Evidence Act [CAP 6 R.E 2022]

Economic and Organized Crime Control Rules, [GN No 267 of 2016] Rule 19 & 20

The Wildlife Conservation Act [Cap 283, R; E 2022] s. 100 & 101

The Criminal Procedure Act [Cap 20, R; E 2022] s. 38-45

Economic and Organized Crime Control Act, [Cap 200, R; E 2019] s. 46-56.

 

CASES

Dr. Kakonge v Christine Bitabeiho, Civil Suit No. 755 of 1992 (HC) Uganda

Prof. Dr. Costa Rick Mahalu & Grace Martin v Republic, Criminal Case No 1 of 2007

 

OTHER

Britanicca “evidence law”, available at https://www.britannica.com/topic/evidence-law (accessed November 13, 2022)

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[1] Britanicca “evidence law”, available at https://www.britannica.com/topic/evidence-law (accessed November 13, 2022)

[2] The Evidence Act, [Cap 6, R; E 2019] s. 2

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

[4] Ibid

[5] Prakash., A (2012), Law of Evidence, Universal Law Publishing Co. PVT. LTD, New Delhi

[6] Ibid

[7] Economic and Organized Crime Control Act, [Cap 200, R; E 2019] s. 46-56.

[8] Economic and Organized Crime Control Rules, [GN No 267 of 2016] Rule 19 & 20

[9] The Wildlife Conservation Act [Cap 283, R; E 2022] s. 100 & 101

[10] The Criminal Procedure Act [Cap 20, R; E 2022] s. 38-45