|Author:||Alex B. Makulilo|
|Position::||Completed his Bachelor of Laws Degree (LL.B) at the University of Dar es salaam in Tanzania in 2004|
Alex B. Makulilo considers the issues accompanying the meaning of a digital document, and offers suggestions for the amendment of the Tanzania Evidence Act.
This article examines the admissibility of electronic documents by Tanzanian courts. The point of departure for discussion is the Tanzania Evidence Act, CAP 6 (R.E 2002) (TEA) and case law drawn from Tanzania and other common law jurisdictions relevant to the discussion. The first part of this article provides background information to the TEA and provides an outline of the problems of the TEA, illustrating where it needs revising in relation to the admissibility of electronic documents. The second part considers the meaning of the term electronic document. Further discussion in this part focuses on the question whether an electronic document is recognized under the TEA. The third part revisits the concepts of 'original' and 'copy' in the context of an electronic document. The fourth part concludes the article. Background information The TEA is the main legislation which regulates the admissibility of evidence in judicial proceedings in Tanzania. The Act was enacted in 1967. It repealed the Indian Evidence Act 1872 which had been in force since 1920. The former statute was the British model statute introduced to India and later transferred to British colonies including Tanzania (formally known as Tanganyika). It incorporated the English rules and principles of evidence in a modified version to suit the circumstances of India. Although the TEA repealed the Indian Evidence Act 1872, it retained most of its provisions. The TEA, like its counterpart the Indian Evidence Act 1872, dates back to before the age of computer technology. The rules and principles incorporated in the Act were not directly intended to regulate the electronic environment. This was a common trend across many jurisdictions in the 1960s. The period subsequent to the 1960s witnessed rapid technological revolutions. The computer became widely used in the public and private sectors. Most records in these institutions were transformed and kept in electronic format. These could be retrieved and printed in hard copies whenever the need arose. Today many important records are held electronically. There are three main problems associated with digital documents. First, digital documents are particularly susceptible to being altered. It is possible to make additions or deletions that are not apparent to viewers of the document. The second problem is that it is difficult to tell the difference between the original authentic record and copies of it, which may have been altered. There are also definitional problems, especially what constitutes electronic document. These problems pose challenges to the swift application of the TEA without revising some of its provisions. The notion of an electronic document The TEA contains no provision which defines the term electronic document. The only definition which is available is that of a document. It is necessary to determine whether such a definition is wide enough to encompass the term electronic document. In order to answer this question, an analysis of the elements of section 3(1)(d) of the TEA that defines the term document is inevitable. This section defines the term document as follows: Any writing, handwriting, typewriting, printing, photostat, photograph and every recording upon any tangible thing, any form of communication or representation by letters, figures, marks or symbols or by more than one of these means, which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and readable by sight. There are four main elements involved in this definition. The first element is recording,...
To continue reading
REQUEST YOUR FREE TRIAL