Can Electronic Documents Be Used as Evidence

I have noted that, there was a problem of accepting electronic document as primary evidence. But in the Written Laws (Miscellaneous Amendments) Act, 2007, Part IX accepted partly in criminal matters and in banking transactions, where now the major problem lays on its practicability, specifically on authentication of the electronic document to be applied as good as primary evidence in determining matters in issues.

ABSTRACT

Text books, electronic sources, legislations of different jurisdictions are very important in finding ways of solving challenges facing the admissibility of electronic evidence in Tanzania. They play a big role in finding accurate and proper ways and solutions faced in legal system.

Evidence is information that tends to prove or disprove a fact or matter in issue , from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses on oath or by writing or records. Evidence is a crucial element in judiciary as it is used to determine matters of controversy in cases.

.In determining controversy/ matter(s), judge(s) prefer direct evidence such as an official document or a witness’s assertion of his/her immediate knowledge of the question at issue.

Cyber Law is the law which regulates cyberspace or internet transactions. It encompassing cases, statutes, regulations and disputes that affect people and business interaction through computers, and it addresses issues of online speech and business; also due to the nature of the medium it including intellectual property rights, free speech, privacy, e-commerce and safety, as well as questions of jurisdiction.

The quick innovation of science and technology; resulted to lots of changes in the world, regional state, individual states and even directly to the individual person.

People’s interactions mostly influenced by trading (commerce) education, political or governments’ communication, socially and economically. The most current and fast way of such interaction is through Internet, computers, and wireless telephones. Most state laws have not been amended to accommodate such new relationship, on the point of evidence and jurisdiction.

In Tanzania, regardless recognizing and using Internet and computers online in economic and business, like electronic banking for example ATM (Automatic Teller Machines) Tembo card cash point, our laws took long time to recognize Electronic Evidence as the best evidence or as primary evidence. This problem did not end only in the statutes but also in the case law where in most cases the court rejected secondary evidence. For example in the case of Shirin Rajabali Jessa v. Alipio Zorilla, where court, only accepted under a lot of restriction. Currently the Tanzania Law of Evidence Act was amended to accommodate Electronic Evidence.

Primary evidence is the best evidence and mostly courts rely on it in giving out the decision. Being the best evidence it is also used in electronic cases (disputes) in one way or another but in many cases Electronic Evidence is found to be grouped in secondary evidence which has a lot of challenges toward its admissibility.

Another area where electronic evidence face challenge, is it’s technicality. Some of the laws do no recognize evidence obtained through such transaction, and treated as secondary evidence due to its nature. A good example is section 4 (2) of the Law of Contract Act (Tanzania), thus section 4 (2) (i) require communication to be complete, as against proposer when it puts in course of transmission to him as to be out of the power of accepter, and section 4 (2) (i) require communication to be complete, as soon accepted come to be knowledge of the proposer. Thus the Law of Contract Act recognize and regulates only contract which is done in a hard copy and not digital or paperless.

Currently it is too difficulty to enforce e-commerce default of any obligation of contractual offence either criminal or civil as it is too difficult to prove its authenticity, reliability and secured in case dispute arises, as in the case of Athony Ntiina v. R where among the disputed issues was whether the appellant was the author of the messages and if he is real the owner of the mobile phone in dispute.

The major challenges facing admissibility of electronic (online) evidence are its nature on the point of authentication, macro viruses and Trojan horse. It will be difficult for the court of law to be sure that no hackers tempered with the information obtained electronically.

In offline world a contract is proved by proving an origin copy signed, but online it is not possible to sign, unless it is in secondary evidence as in scanning or faxing, even the printed document does not amount to original at all, as hacking and phishing is easily possible, hence hindering the enjoyment of the court of law toward settling dispute arising from electronic evidence.

OBJECTIVE OF THE STUDY

The test on how modern science and technology in information and communications technologies brings faster changes in our current economy (globalization). Tanzania cannot do away with modern globalization; socially, economically and politically. We must find out right now acceptable ways of facing cyber world changes (challenges).Absolutely we cannot do away with information and communication technologies. Electronic Transaction now seem to be one among the natural laws, thus no a single state or person in the current world that can do any acceptable changes (interaction) without be connected with other parties (people) of the world in one way or another.

The point of jurisdiction and how interaction is done, and what kind of interaction is that, now is the major thing for us, (Tanzanians) as part of the world. Proving authentication of electronic documentary evidence, as it is possible for crackers or fishers to temper around such document; and even the parties to the dispute.

How Tanzanian laws (Courts) can face challenges resulting from electronic transactions, and evidence obtained through such transactions as well as the point of a jurisdiction, due to the fact that e-commerce is bounder less.

Absolutely there are only few local literature review such as few reports and Electronic Transaction and the Law of Evidence in Tanzania which discussed the frame work on challenges facing Tanzania on electronic, but didn’t say anything about the point of jurisdiction which seem to be a great challenge due to the fact that cyber- law in electronic commerce bounder less.

What mostly can be obtained as literature is from outside /external researchers /authors from like common wealthy countries such as England, India, United States of America and South Africa.

The Constitution of United Republic of Tanzania, 1977, as amended in 2005, where Article 107A was introduced, and gives the court of law not to be hindered by any kind technicality including electronic on achieving justice in determining any disputing matter brought before it .

The parliament of Tanzania Miscellaneous Act of 2007 which inter alia admitted the use of electronic evidence in criminal and banking transactions, but procedural ways are not stipulated even in Criminal Procedure Act, the enforcement of such law is not stated at all including the possible ways of obtaining such electronic, especially in cyber crime. Apart from that, the crucial issue of authentication which is a great challenge on the admissibility of electronic is not solved at all.

TECHNICAL APPROACH

In respect of this research I will employ comparative method and analytical one.

The research will be done by reading mostly external source laws, especially from common wealth countries, various, books Internet, Articles, conventions and statutes; including Intellectual Properties Law lectures, e-commerce law and its lectures, Aspects of International Trade and Investment Law lectures, Banking Law lectures and Law of Evidence.

I will collect data from visiting courts in Arusha, Advocate offices, Attorney General office in Arusha, internet, read conventions and articles, banks, ICTR, East African Lawyers and Tanganyika Law Society.

I will observe the current electronic transactions in Tanzania and the law existing, observing how other states overcome the challenges of cyber tractions (electronic to transactions in commerce), both criminal and civil.

This research will focus on the law of Evidence on the point of its credibility, regardless of its admissibility of cyber-transaction evidence in our laws, together with the point of jurisdiction related electronic transaction.

The hackers who test and probe the internet are very often its fiercest proponents and supports. They are obsessed by the internet. The openness of the internet must face the reality that it exists within a natural world where everything that is open is open to attack especially hackers and Malware, that they are criminals. The court of law must face such challenges when using electronic evidence in determining matters in dispute.

When dealing with those challenges there will be a testing of the originality or authentication including considering authorization and access control.

Hence, it is clear that authentication is a process which must verify that someone is the one actually claimed to be. Where mostly involves a name of a user/ username and passwords, identity like smart card, retina scan, voice recognition or fingerprints, the court of law owes the duty of proving the adduced evidence before it, when determining matters in dispute. Even though there are no many cases reported in our jurisdiction, but such few involved such challenges.

Also electronic evidence does not fit in our legal system, as the legal system is based on manual way or technology while electronic information is based on paperless, and digital technology, such most of the offences committed and ease to be proved are such of physical or tangible. It is argued that, by security experts it is impossible to prove the identity of a computer user with absolute certainty; where now it is only possible to apply one or more tests, if passed, have previously declared to be sufficient to precede. The issue is to determine which tests are sufficient, and many such are inadequate.

Electronic offence uses the unique features of the network such as sending of email in seconds, speedy publication and or dissemination of information through the web to anyone in the world. Computer attacks can be generated by criminals from anywhere in the world, and executed in other areas, irrespective of geographical location, where cyber crime entails frontireless crime. Normally such criminal activities are done quite because of its nature which is normally faster, easier and more demanding with the use of the internet, which creates a great challenge on how to control such electronic offences.

There is no doubt that internet is much preferred by the criminals in executing their criminal activities, due to its nature as it is cheaper than bombs and guns, such attacks of information systems can be conducted in any place in the world; which causes much difficulties to the law enforcement agents, and it is difficult to trace cyber criminals due to the matter of jurisdiction, on borderless, that they can cross any border without permission, and at any time and to any accessible area as long as that computer is connected with internet, on the fact that internet is the forum without a gate keeper.

The investigations are now zeroing its focus on the way electronic evidence is handled in law and practice and irrespective of the legal developments in the actual case; there will be several learning points that would enlighten the electronic (cyber) law community and the crime investigators.

At this point there are crucial matters to be considered in this research. Similarly, I find that, it is pertinent to point out that, in discussing such aforementioned challenges, will be dealing with it in form of raising issues and questions as follows:

Firstly, what provisions of Law of Evidence Act, apply to this incident?

As far as the legal literature and relevant law available are concerned none of them stipulates the way such electronic evidence may be handled in law and its practicability in the legal development in the actual case, apart from such of section 40A, 78A amendment of section 76 which admit electronic evidence to be accepted before the court of law and it is only in some criminal cases and in the banking transaction, hence resulted a challenge on the admissibility of electronic evidence in Tanzania.

Secondly, what could be roles and responsibilities of the cell phones, and internet operators including their companies in preserving and control the use the mobile phones activities and any other electronic transactions.

Thirdly, how effective is the printing media outs presently available with the police for the purpose of the court? Legislation needs to keep pace as it becomes more prevalent and sophisticated.

The records are therefore a subject matter of the Tanzania Law of Evidence Act, for it to become applicable to determine not only the applicability of the electronic records in a court of law but also in determining the liability of the intermediaries involved in handling this cyber evidence, such as mobile phone companies, cyber-et providers.