FOUNDATION FOR ADMISSIBILITY OF ELECTRONIC EVIDENCE IN TANZANIA

Abstract

This article is a modest attempt to investigate the required standards for proper foundation of admissibility of electronic evidence in the courts in Tanzania. For such proper foundation to be laid, the e-evidence should pass through a number of tests as established under section 18 – 20 of the Electronic Transactions Act, 2015as well as judicial pronouncements as discussed in this discourse. These standards range from authenticity, relevance, rules against hearsay, and the best evidence rule. A proponent who fails to meet these tests will not be allowed to rely upon any piece of electronic evidence.

The article recommends that sections 69 and 78 &79 of the Tanzania Evidence Act, 1967 should be amended to introduce words to the effect that the requirement of authentication or identification is a condition precedent to admissibility and it is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. It is further recommended that merged to govern authentication of electronically stored information in the country. A good example in this respect are provisions of the US Federal Rules of Evidence which have been written in a more general manner to accommodate all evidence including evidence in electronic form.

Another provision worth adding to the Law of Evidence Act, 1967 is the one that should allow authentication or identification provided by the Act of Parliament or by other rules prescribed by the highest court in the hierarchy pursuant to statutory authority. The rationale of the proposed amendment is to give legal effect to the efforts by a few pro-active judges seeking to accommodate changes brought about by the ever advancing technologies.