Electronic evidence is best defined in the case of Amongin Vs Akello (HCT-05-CV-ep-0001 of 2014) [2015] UGHCCD 47 (29 June 2015), where Hon. Justice Margaret Mutonyi stated:
"Electronic evidence is any probative information stored or transmitted in digital form, such as a compact disc in this case, that a party in a trial or proceeding may use. It is used to prove a particular proposition or to persuade the court of the truth of an allegation."
The admissibility of evidence, whether oral or documentary, depends on its relevance to the facts in issue before the court.
Tsekooko, Ag stated this principle. J. (as he then was) in Uganda v. David Kamugisha & Anor [1988-90] HCB 77, where he observed:
"A court will determine if the evidence is relevant, whether it is authentic or hearsay, or whether a copy is acceptable or the original is required."
Admissibility of Electronic Evidence in Ugandan Election Cases
The jurisprudence of admissibility of electronic evidence has been elaborated in Ugandan election cases, notably in Wanyoto v Electoral Commission and Another (Mbale Election Petition No. 2 of 2021) [2021] UGHCEP 13 (30 September 2021).
In this case, the 1st Respondent’s counsel contended that compact discs (CDs) presented as evidence were not properly before the court, as they failed to meet the required standard for electronic evidence.
Counsel relied on Amongin Vs Akello (HCT-05-CV-ep-0001 of 2014) [2015] UGHCCD 47 (29 June 2015) to argue that Mr. Ayub Kamba, the transcriber who attached the CDs and transcription, had examined 16 video footages at the behest of the Petitioner but was neither present at the scenes nor the person who recorded them.
Furthermore, the person who recorded the footage was unidentified, and the devices used for recording, transcribing, and transferring the evidence were not tendered in court.
In response, the Petitioner’s counsel argued that the presented affidavits established the electronic evidence chain from recording to transcription and presentation in court. However, the court ruled that the CDs did not meet the required standard of admissibility under Section 6 of the Uganda Electronic Transactions Act and the principles in Amongin Jane Frances Akili. The burden was on the Petitioner to prove admissibility, which was not met, and admitting the CDs would have amounted to condoning an illegality.
Legal Framework for Electronic Evidence in Uganda
The legal framework governing electronic evidence is primarily found in The Electronic Transactions Act, Cap. 99, particularly Section 4, which provides:
Information shall not be denied legal effect, validity, or enforcement solely because it is in the form of a data message.
Information incorporated into a contract is considered incorporated into a data message if it is: a. Referred to in a way that a reasonable person would notice its reference in the contract; and b. Accessible in a form that allows reading, storage, and retrieval.
Where an act, document, or information is required to be in writing, it may be in electronic form.
The requirement for a document or information to be in writing is fulfilled if it is: a. In the form of a data message; and b. Accessible for subsequent reference.
This provision affirms that electronic evidence is legally recognized in Uganda’s jurisprudence, provided it meets prescribed authenticity and admissibility requirements.
WHO MAY TENDER IN AN AUDIO-VISUAL RECORDING IN LEGAL PROCEEDINGS?
The law under section 4 of the Electronic Transactions Act, Cap. 99, stipulates that (a) it must be referenced in a manner that a reasonable person would notice the connection to the information or its incorporation in the contract; and
(b) it must be accessible in a form that can be read, stored, and retrieved by the other party, whether electronically or as a printed document, provided that the information can reasonably be converted into electronic form by the party incorporating it.
(3) Where—
(a) an act;
(b) a document; or
(c) information is required to be in writing, it may be created, produced, recorded, or retained in electronic form.
(4) For the purposes of subsection (3), the requirement for a document or information to be in writing is satisfied if the document or information is—
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference.
As previously highlighted, our legal regime under The Constitution (Management of Exhibits) (Practice) Directions, 2022, specifically Practice Direction 15, on Electronic Devices, outlines how these should be managed and tendered.
(1) The officer collecting electronic data shall ensure that he/she is accompanied by a person with basic knowledge in ICT.
(2) The officer shall ensure that the computer system or any similar device is functioning properly; if it is not, this malfunction shall not affect the integrity of the data or the records stored on the system.
(3) The officer shall file a statement detailing the circumstances under which the information on the electronic device was collected or recorded.
(4) The experts analysing the computer system shall also provide a statement confirming that the evidence was collected or recorded in conformity with the Electronic Transactions Act, Cap 99.
The above provision indicates that only a person with basic knowledge of ICT may tender electronic evidence.
This same position is supported by Paragraph 25 of the Constitution Management of Exhibits Practice Directions 2022, which specifies
who may tender exhibits:
(1) Exhibits may be introduced in court during a hearing by a party, attorney, legal counsel, or prosecutor.
(2) During the hearing, exhibits may be tendered through the following:
(a) The maker or author of an exhibit;
(b) Custodian of the exhibit;
(c) Actual or special owner;
(d) Arresting, searching, or investigating officer;
(e) An officer from a corporate entity to which an exhibit relates; or
(f) Any person with sufficient knowledge of the exhibit.
Development of Case Law on Electronic Evidence
The case of Olega v Alidriga (Civil Appeal No. 0006 of 2013) [2016] UGHCCD 63 (29 September 2016) highlights the importance of authentication in electronic evidence. The court ruled that a video recording is a document and must be authenticated before admission.
The facts are, by a plaint dated 28th January 2013 and filed in court on 28th January 2013, the appellant had sued the respondent claiming general damages for defamation, a permanent injunction against further publication of libellous material, an apology, interest in the general damages and costs.
In the body of the plaint, the appellant pleaded that on or about the 19th of December 2012, the respondent wrote and published a malicious letter against the appellant, which contained the following defamatory words;
Twaha Sebi Olega is a thief who stole solar panels from Matuma Health Centre in the year 2007 and recently he also stole four solar panels from Yumbe Hospital, with the help of police, I arrested him, where he was prosecuted and sentenced to two years’ imprisonment or a fine of 250,000/= (a copy of the letter dated 19/12/2012 is hereto attached and marked Annexure A).
The appellant further contended that those words as contained in the letter were made in bad faith and maliciously against him and that the respondent published those words to some radio journalists, well knowing that the appellant had on 18th November 2012 been acquitted of those charges upon the quashing of his conviction and sentence of the Grade II court by the Chief Magistrates’ Court.
He contended that the words complained of in their natural and ordinary meaning meant that he was a thief who was not fit to hold public office. As a result, his reputation as a professional electrician had been severely injured causing him to be shunned and exposing him to public ridicule and odium. His wife had as a result deserted him and he suffered mental anguish and emotional stress, all because of the defamatory words.
It being an appeal in the High Court, the Court had to reconsider the evidence, evaluate it and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
Court had to determine whether the words complained of were defamatory of the appellant.
The statements complained of were in two forms, a letter dated 19th December 2012 and a video recording.
In paragraph 4 (b) of the plaint, the appellant referred to words contained in a video recording as being defamatory.
An attempt was made to introduce this recording in evidence and it was received as I.D.2 and on line 10 of page 16 of the record of appeal, it is indicated that it was played before the court.
This was erroneous, the recording should have been played to court only after receiving it as part of the evidence.
Nevertheless, in his judgment at page 9 line 19 of the record of appeal, the trial magistrate considered it as part of the evidence and in his view “a recording which lasted 10 minutes cannot amount to defamatory engagement.”
Hon Justice Stephen Mubiru ruled that
A video recording is in law regarded as a document (see R v Daye 1908 KB 330 at 340 and Seccombe v Attorney-General 1919 TPD 270, 272, 277‑278).
He further stated that It has been decided by courts that there is no difference in principle between a tape recording and a photograph (See R v Senat (1968) 52 Cr. App. Rep 282 and Regina v Maqsud Ali, 1965 [1966] 1 QB 688, [1965] 2 All ER 464).
Being a document, like any other document being offered in evidence, a recording must be authenticated: a witness must offer evidence establishing that the object is what that witness claims it is.
One frequently cited authentication regime was first articulated by the Georgia Court of Appeals. In Steve M. Solomon, Jr., Inc. v. Edgar 88 S.E.2d 167 (Ga. Ct. App. 195), where the court stated:
A proper foundation for [the use of a mechanical transcription device] must be laid as follows:
(1) it must be shown that the mechanical transcription device was capable of taking testimony.
(2) It must be shown that the operator of the device was competent to operate the device.
(3) The authenticity and correctness of the recording must be established.
(4) It must be shown that changes, additions, or deletions have not been made.
(5) The manner of preservation of the record must be shown.
(6) Speakers must be identified.
(7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress.'
Court further ruled that If a participant in the conversation is available to testify, it suffices for the witness to testify that he or she recalls the conversation, has listened to the recording, and is satisfied that the recording accurately captured what was said.
It is thereafter sufficient to show a chain of custody which establishes the reasonable probability that no tampering occurred. Minor infirmities in the chain of custody are insufficient to bar admissibility of a recording, but are relevant as to the weight the court chooses to give to it.
This requirement can be met when a witness with knowledge testifies generally about how the equipment was set up, the procedures employed, and the records that were kept documenting the process.
Justice Stephen Mubiru cited international case law, emphasizing that a proper foundation for admitting electronic evidence includes:
The mechanical transcription device must be capable of capturing testimony.
The operator must be competent.
The authenticity and correctness of the recording must be established.
No changes, additions, or deletions must have been made.
The manner of preservation must be shown.
Speakers must be identified.
Testimony must be voluntarily made without duress.
The evidentiary value of a recording depends on audibility (whether the recording can be heard) and intelligibility (whether the content is understandable). If a participant in the conversation is available to testify, they must confirm that the recording accurately represents what was said. Additionally, there must be a chain of custody to prevent tampering.
The issue courts most often focus on is intelligibility.
The ultimate test of audibility and intelligibility is whether the party offering the recording has been able to produce a transcript of the recording which accurately reflects the recording’s contents (see R v Rampling [1987] Crim LR 823).
For that reason, as required by Section. 88 of The Civil Procedure Act, since evidence in all courts has to be recorded in English as the official language of courts, if the recording is in any other language the transcript of the recording should be translated into English before it can be received in evidence. The recording in this case was never transcribed. It therefore was not tested for intelligibility and audibility.
For the reasons stated above, that part of the pleadings and evidence relating to the video recording ought to have been disregarded by the trial court.
The Second Case is the case of Amongin Vs Akello (HCT-05-CV-ep-0001 of 2014) [2015] UGHCCD 47 (29 June 2015);
Which was an election petition that concerned the admissibility of the recordings annexed to the affidavit in support of the petition. Counsel Ogalo raised a Preliminary Objection submitted that the annexure being recordings are not admissible in evidence and accordingly, these parts of the affidavits referring to them be severed from these two affidavits.
He started with the annexure on the affidavit of Akena Geoffrey who attaches the CD saying he was requested to translate it by the petitioner. The second affidavit is that of Onen Patrick who used his mobile phone to record.
Court ruled on the preliminary objection that before accepting electronic evidence, the following steps must be taken into consideration as stated as follows,
(1.) Reliability of the equipment used.
(2.) The manner in which the basic data was initially entered.
(3.) The measures taken to ensure the accuracy of data as entered.
(4.) The method of storing the data and precautions taken to prevent loss or alteration.
(5.) The reliability of the computer programs used to process the data.
(6.) And the measures taken to verify the accuracy of the program.
(7.) What soft ware was used to preserve digital evidence in its original form and to authenticate it for admissibility?
(8.) The competence of the person who accessed the original data.
(9.) This person must be competent to do so and able to give evidence explaining the relevance and implication of what he did.
Finally, (10.) An independent third party should be able to examine the process and achieve the same results.’ Courts have further observed that ‘the person in charge of the process of acquiring information through the electronic process has the responsibility for ensuring that certain standards are met because this kind of evidence can easily be modified and or duplicated.
Conclusion
The legal framework in Uganda recognizes electronic evidence, but its admissibility depends on compliance with legal thresholds. Courts have developed strict guidelines to ensure authenticity, relevance, and reliability.
The Amongin Jane Frances Akili case and subsequent rulings demonstrate that failure to meet these requirements can result in the exclusion of electronic evidence.
Therefore, while tendering in audio or video evidence, courts will ‘if a participant in the conversation is available to testify, it suffices for the witness to testify that he or she recalls the conversation, has listened to the recording, and is satisfied that the recording accurately captured what was said.’
As was stated in the case of Attorney General (Uganda) v The East African Law Society & Secretary General East African Community EACJ, First Instance Division, Application No. 17 of 2014 this simply means that the relevance of chain of custody, establishes the reasonable probability that no tampering occurred.
Therefore, minor defects in the chain of custody are insufficient to bar the admissibility of a video recording but might be relevant to the weight that the court chooses to give it.
Conclusively, under common law, ‘In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time’.
Legal practitioners must ensure that electronic evidence is properly authenticated, and a clear chain of custody is established to enhance its evidentiary value in court.
By Waboga David
DISCLAIMER:
The information provided is for academic purposes only and should not be construed as legal advice.
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