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Writer's pictureRebecca Mutesi

UNDERSTANDING THE LAW ON ELECTRONIC EVIDENCE IN UGANDA.


Evidence is information by which facts tend to be proved and the law of evidence is that body of law and discretion regulating the means by which the facts may be proved in both courts of law, tribunals and arbitrations in which strict rules of evidence apply.


In order to successfully admit any piece of evidence, electoral or otherwise, a party must overcome three obstacles;

1) authentication,

2) Hearsay and

3) the best evidence.


This was highlighted by Tsekooko Ag.J (as he was) in Uganda v David Kamugisha & Anor[1988-90] HCB 77 that the question of admissibility of evidence be it oral or documentary basically depends on whether it was relevant to the issue before court.


Otherwise the court record would be filled with all types of evidence which was not sufficiently relevant and they might tend to prolong the trial unnecessarily because of the immaterial matter.


Do these rules apply directly to electronic evidence? In the neighborhood, Tanzania’s High court pronounced itself on the admissibility of electronic evidence which followed an amendment to their Evidence Act.


In the case of Trust Bank Limited v Le-Marsh enterprises Ltd, and 2 Others Commercial Court Case No.4/2000 (High court of Tanzania), court was called upon to rule upon whether electronic evidence was admissible as best evidence. Court ruled that electronic evidence was admissible in Tanzanian courts.


This was a departure from the strict rule of best evidence. The judge stated that courts should not be ignorant of the modern business methods and shut its eyes to mysteries of the computer.


The present law on Evidence in Uganda recognizes the best ‘Best Evidence Rule’ which requires that only original documents in a written form can be admissible in courts of law, in case of dispute the admissibility and weight of this kind of evidence can be a challenge.


With the technological advancement in Uganda, electronic evidence has also been adopted. This has also led to the enactment of laws like; The Computer Misuse Act No 2 of 2011, The Electronic Signatures Act No 7 of 2011, The Electronic Transaction Act No 8 of 2011.


The Electronic Transaction Act provides for the use, security, facilitation and regulation of electronic communications and transactions as forms communication. The Act provides legal certainty in respect of validity, legal effect and enforceability of information in electronic transactions.


The Electronic transactions Act makes electronic evidence admissible in courts. Electronic signature Act makes provisions for the use of electronic signatures in order to ensure that transactions are carried out in a secure environment, establishes a public key infrastructure for authenticity and security of documents and also recognises the different signature creating technologies.


The Judicature (Visual-Audio Link) rules 2016, makes it more affordable to use technology to conduct proceedings in courts of law, these aim to provide for the taking of evidence in court by visual-audio link and to make it easier for the witness to give evidence without physically appearing in court and their evidence does not constitute electronic evidence.


The constitution (Integration of ICT into the Adjudication process for Courts of Judicature)(Practice directions),2019 provides for electronic services of court documents, providing for electronic versions of documents including pleadings, emphasizing use of technology.

Justice Mutonyi defined electronic evidence in the case of Amongin Jane Francis V Lucy Akello & anor (HCT-02-CV-EP-2014/1)[2015]UGHC 1; as any probative information stored or transmitted in digital form that a party at trial or proceeding may use. It is used to prove a particular proposition or to persuade the court of the truth of any allegations.


Eoghan Casey in his writing ``Digital Evidence on Computer Crime” defines digital evidence as any data stored or transmitted using a computer that support or refute a theory of how an offense occurred or that address critical elements of the offence.


Before accepting electronic evidence, a court will determine if it is relevant, whether it is authentic, or hearsay, or whether a copy is acceptable or the original is required. It is apparent that the use of digital evidence has increased in the past and that is why courts which were hesitant to admit it have now accepted it as one of the best evidence.


But like any other evidence,the proponent of electronic evidence must lay the proper foundation which makes the evidence reliable. Courts are mainly concerned about the reliability of such digital or electronic evidence. The foundation should include;

  1. Reliability of the equipment used.

  2. The manner in which the basic data was initially entered.

  3. The measures taken to ensure that the accuracy of the data was entered.

  4. The method of storing the data and the precautions taken to prevent loss or alteration

  5. The reliability of the computer programs used to process the data and the measures taken to verify the accuracy of the program

  6. What software was used to preserve the digital evidence in its original form and to authenticate it for admissibility.

  7. The competence of the person who accessed the original document. This person must be competent also to do so and able to give evidence explaining the relevance and implication of what he did.

  8. An independent third party should be able to examine and achieve the same results.

From the above foundation laid down by J Mutonyi in the case of Amongin Jane Frances V Akello and Anor, four elements highlighted are, relevance, authentication, accuracy and authorship.


The question of authenticity accrues to the fact that electronic documents can be easily manipulated and copied for instance the allegations in Vestergaard Frandsen A/S v Bestnet Europe Limited[2007]EWHC 2455(ch), which is a judgement in relation to an application by the defendants to strike out the action on grounds that it was vexatious and an abuse of the process. It can also be altered, updated or deleted.

Authentication was defined in the case of Dian GF international Limited vs Damco Logistics limited and Trantrack Civil suit No161 of 2010 [2012] as the process by which the authenticity or genuineness of the document is established. Whether the document is what purports to be is a matter of conditional relevance, that is the document is relevant only if the document is what it purports to be.


In Uganda, Section 7(2) of the Electronic Transaction Act provides that for the purposes of subsection(a) which talks of the original form, the authenticity of the data message shall be assessed a) by considering whether the information has remained complete or unaltered except for addition of an endorsement and any change which arises in the normal communication.

Section 8(5) of the same Act provides that the authenticity of the electronic record system in which an electronic records system is recorded or stored shall in absence of evidence to the contrary be presumed where (a) there is evidence that support a finding that all material times, the computer system or other similar device was operating properly didn't affect the integrity of the electronic record and there is no other reasonable grounds to doubt the integrity of the electronic records system.


Section 8(2) is to the effect that a person seeking to introduce a data message or an electronic record in legal proceedings has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.


This question of authorship was raised in the case of Nakayiwa and 2 Ors v Attorney General (CS-2013)/ [2018] UGCommC 13 where the defendant’s attorney produced a video before court after a delay of four years which counsel for the plaintiff objected. Court noted that if that video existed, it must be as old as the case. For electronic evidence to be admitted in evidence, there must be a degree of certainty that the evidence being presented is authentic and was handled in such a way that it has not compromised the integrity of its content. It was noted that the source of the data must be put properly before court.


It is important to note that information shall not be denied legal effect solely on ground that is in the form of data message, that is, email. The information has to be in a form that may be read, stored and retrieved by the other party whether electronically or as a computer print out as long as the information is reasonably capable of being reduced into electronic form by the party incorporating it as per Section 5 of the Electronic Transactions Act.


This written by

Rebecca Mutesi


UCU LLB 3

@n_umutesi

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