ELECTRONIC TRANSACTIONS AND THE LAW OF EVIDENCE

IN TANZANIA

Andrew L. Mollel & Zakayo N. Lukumay

Iringa University College
2007

i
© Iringa University College –2007

ISBN 9987 – 653 – 10 – 3

All rights reserved. No part of this publication may be reproduced,

stored in any retrieval system or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise
without prior written permission of the authors or Iringa University
College on their behalf.

ii
 DEDICATION

Dedicated to our dear parents who have supported our academic life since
childhood.

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 ABSTRACT

Electronic Transactions and the Law of Evidence in Tanzania is a revised

version of the study entitled: “The Impact of Information and Communication
Technology on the Rules of Evidence in Tanzania” submitted to the Faculty of
Law of the University of Dar es Salaam in partial fulfillment of the
requirements for a Masters Degree in Law. The study entailed an assessment
of the impact of advancement in Information and Communication Technology
(ICT) on rules of evidence with particular reference to the Evidence Act, 1967.
In this revised version, it becomes imperative to look widely at the subject of
electronic transactions due to the fact that ICT, particularly computer
technologies, have brought about modern techniques in conducting business
and other electronic transactions. Electronic commerce is currently booming
in Tanzania as elsewhere. Evidence generated through this new form of
business is also electronic in nature.

The current principles under the law of evidence in Tanzania, as observed in

this study, assume the existence of paper -based records and documents and
assume that these documents and records should bear signatures for legal
recognition.

On documentary evidence, the Law of Evidence demands production of the

best evidence, which is the original document or record. If the original is
proven to have been lost, destroyed or is unduly burdensome to obtain, courts
allow parties to adduce secondary evidence, which is a copy of the original
document or record. Electronic transactions, particularly through computer
technologies, enable businesses and consumers to use computers to create,
transmit, and store information in electronic form. This scenario raises a
number of challenges for principles of evidence, particularly those governing
admissibility of documentary evidence and authentication. It is the conclusion
of this work that there is a need for a re-examination and revision of the
fundamental principles of the law of evidence in Tanzania to accommodate
evidence in electronic form.

iv
This work reveals that steps taken so far with regards to the admissibility of
electronic evidence do not adequately address the gap created by the
advancement of ICT in the Law of Evidence -Tanzania.

The survey conducted reveals that the impact of ICT on rules of evidence can
best be responded to by enacting a comprehensive legislation which gives
legal recognition to electronically generated evidence. Currently, Tanzania
has no law on ICT and on Electronic Transactions in general, despite the fact
that cases related to ICT have started to be referred to courts of law.

The study recommends enactment of a comprehensive legislation which gives

electronic transactions legal recognition, including evidence generated in
electronic form. It further recommends that judges, through precedents and in
the absence of the law on ICT, should give a wide interpretation to paper
based terminologies like document, writing, evidence, and signature to cover
their counterparts in electronic form.

The above-proposed legal framework for recognition of electronic evidence in

Tanzania would create the predictability and certainty for computer -related
transactions vital for growth of e-commerce.

The work Electronic Transactions and the Law of Evidence in Tanzania is

organized in three parts as follows: Part One is on Electronic Transactions
and ICT Development in Tanzania, and comprises Chapter one: General
Introductory Chapter; Chapter Two: International Electronic Commerce; and
Chapter Three: Development of ICT in Tanzania. Part Two deals with the Law
of Evidence in Tanzania and comprises of Chapter Four: Significance of
Evidence Rules of Authentication in Legal Transactions; and Chapter Five:
The Tanzania Evidence Act, 1967. Part Three addresses the Impact of ICT on
the Rules of Evidence in Tanzania, and comprises Chapter Six: The Impact
on the Tanzania Evidence Act, 1967; Chapter Seven: The Legal Framework
for Admissibility of Electronic Evidence in Tanzania and the last chapter,
Chapter Eight, contains general observations, conclusion and
recommendations.

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 ACKNOWLEDGEMENTS

The success of this work has, to a great extent depended on efforts, support,
contributions, and encouragement from a number of individuals. Without them
this work would not have been possible to accomplish. Indeed, we are grateful
to all of them. It would have been a good idea to mention all of them by name,
but due to shortage of space, we will only mention a few.

First and foremost, we express our special gratitude to all those who provided
constructive criticisms, comments and suggestions on the first draft of the
original manuscript, as their names appear in the Masters Thesis.

Secondly, many thanks should go to Professor. Dr. M.C Mukoyogo, of the

Faculty of Law of the Open University of Tanzania, who kindly agreed to
review the first draft of the revised manuscript. His comments and
suggestions provided very valuable input in shaping the current book to look
the way it is now.

Thirdly, we are grateful to Professor S. Nyagava, Chairman of the Research

and Publication Committee, Iringa University College for the necessary
administrative support he extended to us throughout the various stages of the
production of this work. We equally thank all the committee members for
approving our manuscript for publication.

Fourthly, we would like to extend our gratitude to Dr. Sally Harris who had
spent her precious time to proofread the manuscript. Her linguistic comments
and corrections added valuable inputs to this book.

We would like also to thank the Finnish Evangelical Lutheran Mission (FELM),
who, through the IUCo Research and Publication Committee, provided
financial support in the printing and other stages necessary for the production
of this work. All persons mentioned above are in no way responsible for any
omissions, or faulty commissions in this work, for which we remain solely
responsible. We sincerely thank everybody, mentioned and those not
mentioned. To all we say “MAY GOD ALMIGHTY BLESS YOU.”

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TABLE OF CONTENTS

Copyright……………………………………………………………………………ii

Dedication ................................ ……………………………… …………………..iii

Abstract……………………………………………………………………………...iv

Acknowledgments……………………………………………………………………vi

Table of contents…………………………………………………………………...vii

Abbreviations………………………………………………………………………..xiv

PART ONE: ELECTRONIC TRANSACTIONS AND ICT DEVELOPMENT

IN TANZANIA 1

CHAPTER ONE 2

1.0 GENERAL INTRODUCTORY CHAPTER 2

1.1 Introduction………………………………………………………………………..2

1.2 Background Information……………………………………….… ……………...3

1.3 Conceptual Foundations of Electronic Transactions and the Law of

Evidence in Tanzania …………………………………………………..…….. 12

1.4 Objective and Scope ……………………………………………………………16

1.5 Previous Investigations and Discussions…………………………………………17

1.6 Conclusion………………………………………………………………………..21

CHAPTER TWO 23

2.0 INTERNATIONAL ELECTRONIC COMMERCE 23

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2.1 Introduction………………………………………………………………………23

2.2 Legal Aspects of International Electronic Commerce….… …………………….28

2.2.1 Formation of International Electronic Contracts…..………………………….30

2.2.2 Electronic Commerce and International Sale of Goods………………………33

2.3 The WTO and International Electronic Commerce……………………………...37

2.4 Dispute Settlement in Electronic Commerce…………………………………….38

2.5 Conclusion………………………………………………………………………..41

CHAPTER THREE 43

3.0 DEVELOPMENT OF ICT IN TANZANIA 43

3.1 Introduction………………………………………………………………………43

3.2 Historical Background ……………………………………….… ……………….43

3.3 Tanzania ICT National Policy…………………………………..………………..44

3.4 An Overview of the ICT National Policy………………………………………...46

3.5 Background, Vision and Mission………………………………………………...46

3.6 Objective of the Policy…………………………………………………………...47

3.7 ICT Legal and Regulatory Framework…………………………………………..48

3.8 A Critical Analysis of the National Policy……………………………………….50

3.9 The Current Situation of ICT in Tanzania……………………………………….51

3.10 ICT Development and Electronic Commerce in Tanzania……………………..52

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PART TWO: THE LAW OF EVIDENCE IN TANZANIA 54

CHAPTER FOUR 54

4.0 SIGNIFICANCE OF EVIDENCE AND RULES OF AUTHENTICATION

IN LEGAL TRANSACTIONS 54

4.1 Introduction……………………………………………………………………....54

4.2 Law of Evidence as a Branch of Procedural Law………………………………54

4.3 Meaning of Evidence. …………………………………………………………...54

4.4 Function of Evidence………………………….…………………………………55

4.5 Forms of Evidence……………………..………………………………………...56

4.6 Methods of Presenting Evidence in Legal Proceedings………………………….58

4.6.1 Orally………………………………………………………............................58

4.6.2 By Production of Documents……………………………….………….....….59

4.6.3 By Production of Material Objects……………………….…………………..61

4.7 Rules of Authentication…………………………………………………………..62

4.8 Conclusion…………………………………………………...…………………...66

CHAPTER FIVE 67

5.0 THE TANZANIA EVIDENCE ACT, 1967 67

5.1 Introduction………………………………………………….…………………...67

5.2 Definition of the Term „Evidence‟ under the Evidence Act, 1967………………67

5.3 An Overview of the Evidence Act, 1967………………………………………...67

5.4 Relevance and Admissibility of Evidence under Evidence Act, 1967…………..68

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5.5 Forms and Methods of Presenting Evidence under the Evidence Act,
1967…………………….……………………………… ………………………..68

5.5.1 Oral Evidence………………………………………..……………………….68

5.5.2 Documentary Evidence………………..………………………………..........69
5.5.2.1 Business Records, Bankers Books and Books of Accounts……………...69

5.5.2.2 Satisfaction of the Best Evidence Rule under the TEA 1967……............71

5.5.3 Real Evidence………………………………………………………………...72

5.6 Rules of Authentication……………………………………………………….72

5.7 Conclusion …………….……………………………………………………...74

PART THREE: THE IMPACT OF ICT ON THE RULES OF EVIDENCE IN

TANZANIA 76

CHAPTER SIX 76

6.0 THE IMPACT OF INFORMATION AND COMMUNICATION

TECHNOLOGY ON THE EVIDENCE ACT, 1967 76

6.1 Introduction………………………………………………………………………76

6.2 Definition of Evidence…………………………………………………………...76

6.2.1 Meaning and Scope of Electronic Evidence…………………………………77

6.2.2 How is an Electronic Evidence Created?………………………..…………...78

6.2.3 The Nature of Electronic Evidence…………………………………………..80

6.3 Challenges Associated to Electronic Evidence…………………………………..81

6.4 The Impact of ICT on Documentary Evidence……………………………..........82

6.5 Electronic Signatures…………………………………………….……………….83

6.6 Technologies Employed in Creating Electronic Signatures……….. …………....85

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6.7 Electronic Signatures: Meeting the Law‟s Functional Requirement……………..87

6.8 The Impact of ICT on Rules of Authentication……………….. ……...................90

6.9 Conclusion………………………………………………………………………..92

CHAPTER SEVEN 93

7.0 LEGAL FRAMEWORK FOR ADMISSIBILITY OF ELECTRONIC

EVIDENCE 93

7.1 Introduction…………………………………………………………...……….....93

7.2 Position in Tanzania……………………………………………….……………..94

7.3 Responses to the Impact of ICT in Other Jurisdictions…………………………..99

7.3.1 Position in Canada……………………………………………………………99

7.3.2 Position in the United States of America……………………………….......101

7.3.3 Position in India……………………………………………………...……..104

7.3.4 Position in the United in United Kingdom………………………………….106

7.3.5 Position in South Africa…………………………………………………….107

7.4 The Best Evidence Rule………………………………………………. …….....109

7.5 Lessons From India……………………………………………………………..110

7.6 Admissibility of Electronic Signatures…………………………………………112

7.6.1 Position in the United Kingdom…………………………………………….112

7.6.2 Position in India…………………………………………………………….113

7.6.3 Position in the European Union…………………………………………….114

7.6.4 Position of the United Nations……………………………………………...115

7.7 Suitable Approaches Recommended for Tanzania………………………..........116

7.7.1 Legislative Intervention…………………………………………………….116

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7.7.2 Judicial Intervention………………………………………………………...118

7.8 Conclusion………………………………………………………….…………...120

CHAPTER EIGHT 122

8.0 CONCLUSIONS AND RECOMMENDATIONS 122

8.1Conclusions…………………………………………….......................................122

8.2 Recommendations………………………………………..……………………..124

REFERENCES 127

Papers ………………………..…………………………………………………… 127

Reports …………..……………………………………………………………….. 128

Published works – (a) Articles…………………………………………………….128

(b) Books ……………………………………………………..128

Electronic Sources ………………………………………………………………. .129

APPENDICES 130

Appendix I: Electronic Evidence Model Law……...………………………………130

Appendix II: Electronic Transactions Model Law………………………………….133

Appendix III: Computer and Computer Related Bill…………………………...….143

Table of Legislation ……………………………………………………………….155

Table of Cases ……………………………………………………………………..156

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ABBREVIATIONS

ARPANET -Advanced Research Projects Agency Network

ATM -Automated Teller Machine

DHL - Dalsey, Hillblom and Lynn

DNA -Deoxyribonucleic acid

EAC -East African Community

EDI -Electronic Data Interchange

EU -European Union

FELM - Finnish Evangelical Lutheran Mission

GATS - General Agreement on Trade and Services

GATT - General Agreement on Tariffs and Trade

ICT - Information and Communication Technology

IEA -India Evidence Act

ISP -Internet Service Provider

IUCo - Iringa University College

LAN -Local Area Network

POS -Point of Sale

TCC -Tanzania Communication Commission

TCRA - Tanzanian Communications Regulatory Authority

TEA -Tanzania Evidence Act

TRIPs - Trade Related Aspects of Intellectual Property Rights

U.K. - United Kingdom

UETA - Uniform Electronic Transactions Act

UK ECA -United Kingdom Electronic Communications Act

UN -United Nations

xiii
UNCITRAL -United Nations Commission of International Trade Law

USA -United States of America

WAN - Wide Area Network

WTO -World Trade Organization

xiv
PART ONE: ELECTRONIC TRANSACTIONS AND ICT DEVELOPMENT

IN TANZANIA

"Information and communication technologies (ICTs) have the potential to

profoundly change global trade, finance and production. By making businesses
more competitive and economies more productive, and most of all by
empowering people with knowledge, ICTs can support faster economic growth
and thus strengthen the material basis for development. Our challenge is to
ensure that this potential is used to generate real gains in the global struggle
against poverty, disease and ignorance – and their offspring, fear, intolerance
and war."

Kofi A. Annan
Former Secretary-General of the United Nations

New York, 2002

1
CHAPTER ONE

GENERAL INTRODUCTORY CHAPTER

1.1 Introduction

Globalization is unstoppable, and it leaves no stone unturned. Even though it

may be only in its early stages, it is already intrinsic to the world economy. We
have to live with it, recognize its advantages and learn to manage it.1
Globalization describes the present political economic and cultural
atmosphere of increasing integration and interdependence of world-wide
socio-economic life, where information, money, goods, services and people
flow more frequently and quickly throughout the globe.2
Among the main catalysts of globalization, are the world-wide communication
webs created by information technology that, for their part, are moving society
along a route towards an information society. Other various notions that
accompany the concept of globalization, such as foreign direct investments
and free markets, are concepts that have taken strong root today in the
international community and in Tanzania in particular.
Commercial, financial and service transactions (stock markets, negotiable
instruments, stock exchanges, banking business or rather SWFT networks,
securities, fund transfers, purchase of goods, including motor vehicles, sales
transactions, etc) are all done electronically today.
The thrust of this work is to assess the impact of electronic transitions on the
Law of Evidence in Tanzania. Its focus is on Electronic Commerce,
Information and Communication Technology and the Tanzania Evidence Act,
1967.3 Electronic signatures as one of the methods of authenticating also
forms part of the work.

1
Ralph Amassah, “Reflecting the Borderless Electronic Commercial Environment in Contracting” in
<http//www.lexmercatoria.org> last accessed, 12/9/2006
2
Tapio Puurunen. Dispute Resolution in International Electronic Commerce, Licentiate Academic
Dissertation, Faculty of Law, University of Helsinki, Helsinki 2005, p.2

3 Originally Act No.6 of 1967(Cap 6 R.E.2002)

2
The main question of the study was whether the law of evidence in Tanzania
accommodates the new methods of adducing evidence resulting from the
advancement of computer technologies. As will be discussed later in this
work, the main part of the law of evidence that has adversely been affected by
ICT is documentary evidence as well as rules of authentication. It is doubtful
whether principles governing admissibility of paper-based documents can be
applied in admitting evidence in electronic form. In January 2007, while this
work was still in progress, a Bill intended to amend various laws was tabled
before Parliament. To keep pace with development in science and
technology, the Evidence Act is among the various laws proposed to be
amended. The Bill proposes to introduce new types of evidence which would
be admissible by courts of law.4 However, the bill leaves a lot to be desired,
as it addresses the whole issue of electronic evidence in a very narrow sense.
This work endeavours to address some of the challenges raised above and
will suggest possible solutions.

1.2 Background Information

Information Communication Technology (ICT) has now gained a very

important place in the international economy. 5 It has revolutionized the way
businesses operate, resulting in what is being called the “New Internet
Economy”. Converging technologies such as the Internet, personal computers
and wireless telephones have turned the globe into an increasingly
interconnected network of individuals, firms, schools and governments
communicating and interacting with each other through a variety of channels.
This technology is rapidly replacing traditional modes of doing business. 6
Electronic commerce and related applications of ICT have become
tremendous engines for economic growth and productivity, and are changing
the shape of the world in which humans live. Businessmen and consumers

4 The Written Laws (Miscellaneous Amendments) (No. 2) Act, 2007

5Lederman E., & Shapira R, “Law, Information and Information law”, 2001, Kluwer Law
International, Volume 13 at p. 3

6
Ibid

3
are increasingly using computers to create, transmit and store information in
electronic format.7

According to Kamal8, the number of Internet users in 2001 is approximated at

400 million and this number of users, volume of data and volume of traffic
continue to increase at a very high rate. It was projected that by the end of the
year 2004, there would be over 1 billion users on the internet, using fixed and
mobile access facilities.9 As a result, the Internet is quickly becoming a key
market place for buying and selling goods and services, enabling businesses
to embrace the advantages of electronic commerce to expand markets,
increase efficiency, increase profitability and develop new business models.
Incidentally, the total of global E-commerce increased to USD 3.9 trillion in
2004.10

In Tanzania, the role of ICT in day-to-day life is increasingly becoming more

locally relevant and appropriate to socio-economic requirements, cultural
priorities, and value systems.11 A considerable fraction of the Tanzanian
public is educated in the use of Information and Communications
Technologies (ICTs) and is aware of the benefits available by accessing,
sharing, and processing knowledge via modern technologies.12 Tanzania has
made remarkable progress in deploying ICT. This progress has been well
received by many service providers who are striving to address unmet
demand and competition in newly liberalized markets.13 Tanzanians are

7
Malik, V., “Cyber Law: A Comparative Study for the Legal Framework for E-Commerce in India and
the United States”, The Southern Law Journal xii, Fall 2000
8
Kamal, A & Gelbstain E., Information Insecurity: A survival guide to the uncharted territories of
cyber-threats and cyber-security, UNITAR, 2002
9
Ibid
10
Source: International Data Corporation, (Nov 2000), online: http://www.idc.ca ; cited in Industry
Canada, “Canadian Internet Commerce Statistics Summary Sheet” (date accessed: 07 Nov 2000)
11
The source of this information is a document on ICT Policy in Tanzania accessed at
www.ethinktanktz.org/ICTPolicy-Workshop.htm visited on 20/12/2004
12
Ibid
13
Ibid

4
influencing technological innovations and the development of new ICT
products and markets that are relevant to their circumstances.14

Since the mid-1990‟s, the Civil Service Department of Tanzania has initiated a
series of measures for transforming itself into becoming more efficient,
effective, and customer-oriented. These efforts have put in place the
foundations for what is now known as E-Government, while sector reforms
recognize and promote the use of ICT in their respective sectors.15

In the above spirit and like the rest of the continent, Tanzania's banking sector
has made remarkable progress in deployment of ICT by introducing a branch
of banking commonly referred to as electronic banking. The term electronic
banking is defined as “an array of data -processing, electronic and telematic
techniques and infrastructures that make it possible to exchange funds in a
paperless fashion within a two-way and sometimes three-way relationship
between banks, merchants and consumers.”16 Some of the banks have
invested significantly in information technology by introducing different forms
of electronic banking in Tanzania to facilitate electronic cash movement,
Automatic on-line cashier terminals and centralized database-processing
facilities.17Such banks have Cash Machines called ATM (Automatic Teller
Machines) with 24-hour access for customers to cash and basic banking
services. Automatic Teller Machines are electronic terminals that let a bank
customer bank almost any time. To withdraw cash, make deposits, or transfer
funds between accounts, one has to generally insert an ATM card and enter a
PIN.18 Apart from introducing ATMs, Barclays Bank has introduced Business
Master, an electronic cash management proprietary software system that links

14
Ibid
15
Ibid
16
Bwana, A. J., Electronic Banking and Law in Tanzania: Approaches

to its Regulation. Tanzania Lawyer, 2003

17
These are: City Bank, Barclays Bank, NBC Bank, Standard Chartered, CRDB, Stanbic and Tanzania

Postal Bank.
18
See http://www.ftc.gov/bcp/conline/pubs/credit/elbank.htm last accessed on 12/07/2005

5
the customer's computer to the Bank's financial system (PC-Banking). It
enables customers to see their balance and transaction reporting, money
transfers and electronic mail services. The NBC (1997) Ltd has also recently
introduced Internet banking services.19

CRDB Bank Limited has introduced a debit card branded as “Tembo Card”.
This card can be used to withdraw cash from Tembo Card Cash Points or to
purchase goods or services from retail outlets, which accept the card as a
means of payment.20 Tembo Card Cash Points offer cash service 24 hours a
day, 7 days a week.21 The product has a number of benefits: Firstly, it is
protected by Pin thus holders can do their shopping safely; secondly, it is
easier to carry than cash; third and last, customers can access to the Bank
services 24 hours daily at ATMs.22 In addition, CRDB provides PC Banking to
some of its customers.23

Tanzania Postal Bank, in addition to operating ATMs, has also recently

introduced a debit card branded as “Uhuru Card”. The debit card is used to
purchase items from selected merchants and to transfer money from the
customer‟s bank account to the merchant's account. For this transaction to
take place, one has to possess funds in his/her account to cover the
purchase.24

Despite the progress pointed out above, a full-fledged deployment of the

benefits of ICT in Tanzania has not yet been reached. This is reflected in the
slow pace of transformation of the economy into information based at both

19
Bwana J. A., Op. Cit at p. 10
20
see http://www.crdbbank.com/Tembo card.asp last accessed on 14/07/2005
21
Tembo Card Cash Points are available at CRDB Bank branches in Dar es Salaam, Moshi, Arusha,
Mwanza, Dodoma, Morogoro, Tanga, Mtwara, Bukoba, Shinyanga, Mbeya, Iringa, Songea and
Musoma and the Dar es Salaam International Airport.
22
Ibid
23
Bwana, A. J., op cit at p. 11
24
The information is available in the Bank‟s brochures available at the customers‟ care desk in the
Bank‟s premises located in the Headquarters, Dar es Salaam and also in some branches where this
product has so far been introduced.

6
institutionally and at the individual level. For instance, apart from the
Commercial Division of the High Court, court records at the other divisions
and registries of the High Court as well as the Court of Appeal are still kept on
hard copies despite the existence of a number of computers. On the part of
the Commercial Division of the High Court, basic records related to cases
have been computerized. The computerized records enable availability of
case reports including a daily and weekly cause list, which is displayed on
video screens available within the court premises.25 These records however,
are not yet available online.

There are a number of reasons attributed to the above scenario, a few of

which will be discussed below. The first one is based on concerns over
reliability and authenticity of electronic records. For example an e-mail may
just indicate the person‟s name as the sender of the same. The apparent
issue would be whether the said e-mail message did actually originate from
the purported sender. This issue centres on authenticity. The other issue
would be whether the said e-mail message was not tampered with, bearing in
mind the fact that the said message had been in transmission via a network
composed of millions of computers. It is hard to believe that the message did
actually originate from the person whose name is indicated at the foot of the
message, without his/her signature.

Regarding computer print-outs, the question would be firstly, whether the

purported records did actually originate from the purported computer system.
Secondly, whether the records were entered in the computer system at the
purported period. Thirdly, whether the records were kept or stored in a
reliable system that does not allow tampering of the same, including
unauthorized copying. These challenges revolve around integrity, authenticity
and security of electronic records. Lack of clear answers to these challenges
leads many people to be reluctant to engage in online transactions.

25
Source: an informal interview held between the Registrar, Commercial Division of the High Court of
Tanzania on 14th May, 2005

7
The problem is aggravated by computer hackers who are technically
knowledgeable people who have skills in software development. They know
how to identify security weaknesses in products.26 Kamal27 points out in
respect of insecurity of computerized information, that in early 2002,
Computer Economics Inc., a U. S. company reported that their estimate for
the total cost of computer virus and worm attacks to the U. S economy
amounted to 17 billion dollars.28 In Tanzania, an elementary survey conducted
by the authors reveals that there are very little known about crimes related to
computers.

The second problem is associated with the nature of electronic evidence.

It presents three main problems. Firstly, it comes from a variety of media;
secondly, it is subject to manipulation, and thirdly, it is often not as tangible as
it should be.29

As shall be seen below, the laws of evidence are used to dealing with
information contained in a single medium such as printed documents, records,
photographs, newspapers and others of a similar nature. A printed document
or record presents no problem because it appears on a piece of paper. Thus,
an e-mail, though transmitted electronically, presents little problems when
printed on a paper because it is permanently visible. Equally, there should be
no problems in admitting information in electronic form resident in the
computer once printed because it is permanently visible, though it may be
argued that it is hearsay evidence,30 the reason being, such records or
documents are copies of information supplied to the computer by human

26
Kamal, A., Op. Cit, at p. 8 at p. 25
27
Ibid at p.21
28
Ibid
29
See an article entitled Uniform Electronic Evidence Act Consultation Paper, by Uniform Law
Conference of Canada accessed at Uniform Law Conference of Canada at
http://www.law.ualberta.ca/alri/ulc/current/eelev.htm on 25/02/2005

30
See Chissick, M., Op. Cit, at p. 171

8
beings.31 This information is normally created when a document is typed and
saved to a computer hard disk or when an entry is made to the computer
database resident in the computer hard disk.

The field survey revealed that seventy percent of lawyers interviewed are
concerned with the reliability of electronic evidence. They put more trust on
information resident on paper than a similar piece of information in an
electronic form. For example, in court proceedings, a witness swears by
raising a Bible (or any sacred book) on his right hand. The question would be
whether it would be a different thing if another witness were to swear by
raising a compact disk that contains an electronic Bible similar to the one
used by the other witness. Indeed, it is very difficult to convince many people,
including computer literate ones, that the compact disk the witness used to
swear upon contains a similar version of the Bible the other witness had used
to swear upon. Thus, more trust is likely to be accorded to the Bible which can
physically be seen and touched than the one on a compact disk. In a similar
vein, businesspersons, companies and institutions decline to computerize
records and to do away with paper-based records because they are not sure
whether the electronic version of records they keep can be accepted in court
in the event a dispute arises.

The third reason is lack of legal framework. Tanzania has yet to have cyber
laws. This fact is revealed by a survey conducted at the office of the Chief
Parliamentary Draftsman.32 According to this survey, Tanzania currently does
not have a law that recognizes electronic transactions. The Law Reform
Commission of Tanzania in the following words supports this position “While
some countries have adopted the new laws to cover this area, Tanzania is far
behind in this area. Most of her pieces of legislation are offline oriented hence
to be changed to focus online. The rationale behind is to protect consumer
and boost our economy”33. Restating the above, the Commission puts it that

31 Ibid
32
The fact was revealed by Mr. Nzori of the office of the Chief Parliamentary Draftsman, Dar es
Salaam
33
Law Reform Commission of Tanzania position paper on e-commerce, accessed at www.http:lrct.tz

9
“though Electronic Commerce started roughly 10 years ago, in Tanzania there
is no law to regulate this area. Therefore, the importance of having an
effective legal framework to cater across this area cannot be over-
emphasized.”34

However, the Law Reform Commission, which is an institution charged with

reforming the laws in Tanzania, has launched a project which will ultimately
lead to having a law on e-commerce in place. The Commission in this mission
produced a “Draft Discussion Paper on Introduction of a Legal Framework for
Electronic Commerce in Tanzania” which was tabled for discussion at the
stakeholders workshop held on 8th June 2005 at the Commission‟s
premises.35

Originally, many legal provisions in a number of statutes, including the

Tanzania Evidence Act, 1967 assumed the existence of paper-based
transactions. In particular, it assumed existence of paper-based records and
documents which should be original and authenticated. One apparent reason
for this phenomenon is that the Act originates from the Indian Evidence Act,
1872 (hereinafter to be referred to as the IEA). The Tanzania Evidence Act
was enacted in 1967. During this time, there were no computer business
transactions either in Tanzania and India. Thus, the current development in
ICT, particularly computer technologies including revolution of the Internet
could not have been foreseen in those days when these Acts were being
enacted.

It is argued in this work that the shift of the economy as discussed above from
a paper-based to an electronic-based commercial information environment
raises a number of legal challenges. The laws of evidence are among the
main branches of the law that have been affected by advancement of
information communication technology, the main area being documentary
evidence. In a study conducted by the Law Reform Commission of Tanzania

34
A Draft Discussion Paper on the Introduction of a Legal Framework for Electronic Commerce in
Tanzania , by the Law Reform Commission of Tanzania, 2004
35
The author of this work personally attended and participated in the workshop.

10
on introduction of a legal framework for e-commerce in Tanzania, one of the
main concerns raised by stakeholders is admissibility of electronic documents
as original evidence. The Commission accepts the recommendation by the
stakeholders that electronic documents should be tendered and admitted in
courts as original documents and it goes further to propose an amendment of
the Evidence Act, 1967 to accommodate these current changes.36

The rules of documentary evidence demand production of the best

evidence.37 The best evidence in respect to documents or records is the
original. If the original has been lost, destroyed or is unduly burdensome to
obtain, a party may lead secondary evidence to prove that a copy thereof (e.g.
a photocopy) is a true copy of the original.38 However, the evidential weight
and credibility of such secondary evidence may be less.

Electronic evidence presents a number of challenges that need to be

addressed before it is admitted in evidence. Documents created electronically
(e.g. by word processor) have different attributes than paper-based
documents. The main challenges are: What amounts to an original in
electronic environment? How is the requirement of writing and signature
satisfied? How would an electronic record be authenticated and attributed?
How should an electronic record be retained and for how long should it be
retained?

It is argued in this book that a comprehensive law of evidence that addresses

these challenges posed by advancement of computer technologies in
Tanzania is highly and urgently needed.

36
Source: A Draft Discussion Paper on Introduction of a Legal Framework for Electronic Commerce in
Tanzania, a Paper presented by the Law Reform Commission of Tanzania in a Stakeholders Workshop
held on 8th June 2005 in Dar es Salaam, at p. 75. The Act has already been amended to recognize the
electronic documents as evidence, although in our views, the step taken is far from being satisfactory.
37
S. 64(1) of the Tanzania Evidence Act, 1967
38
Ibid at ss. 67 and 68

11
Various countries have enacted cyber laws including the laws of evidence to
address the challenges pointed above. A good example is the Indian
Information Technology Act of 2000, which amends various provisions of the
Indian Evidence Act, 1872 to respond to advancement of technologies. Other
countries that have pursued the same course include Canada, Australia, the
United States of America, Singapore, United Kingdom and South Africa, to
mention but a few. The cyber laws of the above mentioned jurisdictions came
as a response to the call made under the UNCITRAL Model Law on E-
Commerce. The Preamble to this instrument requires countries to harmonise
their laws to give legal recognition to electronic transactions for the aim of
promoting e-commerce. In this respect, various countries adopted this piece
of legislation while others enacted their laws in this respect based on the
principles of the Model Law.

It is in the above spirit that it is argued here that computer technologies are
increasingly eliminating paper-based transactions, resulting in the formation of
a paper-less economy, commonly referred to as E-commerce. It becomes
imperative therefore that the principles of the law of evidence should be re-
examined with the view to accommodating electronic evidence. This will
enable conclusion of contracts and creation of rights and obligations through
an electronic medium.

It is also argued that absence of the legal framework in this area in Tanzania
is likely to impede the growth of E-commerce in Tanzania due to lack of
confidence amongst people who would wish to conclude various transactions
in electronic form.

1.3 Conceptual Foundations of Electronic Transactions and the Law of

Evidence in Tanzania

Issues regarding evidence attract much attention in the common law system,
often with complex rules on which evidence is admissible and which is not.
For example, regardless of how relevant and trustworthy it may seem in a
particular case, “hearsay” is normally not admissible as evidence, except

12
under special circumstances.39 The interest of finding and proving the truth
therefore frequently comes in conflict with the rigid rules of evidence.40

The term „evidence‟ is derived from the Latin word, „Evidentia‟ which means
„being clear‟ or „plain‟, or „apparently clear‟.41 Section 3 of the Evidence Act,
1967 defines the term „evidence‟ to denote “the means by which an alleged
matter of fact, the truth of which if submitted to investigation, is proved or
disproved; and without prejudice to the proceeding generality, includes
statements and admissions by accused persons.”

The word „means‟ used in the definition of the term „evidence‟ above is
defined by the Oxford Advanced Learners‟ Dictionary42 as an action by which
a result is brought about or a method(s). In other words, therefore, evidence is
a method used to present facts in court for the aim of either proving or
disproving an alleged matter.

The definition which encompasses production of oral and documentary

evidence was given by Phipson, who defines evidence as the testimony,
whether oral, documentary, or a real, which may be legally received, in order
to prove or disprove some fact in issue. From the above definitions, there are
various methods or kinds of evidence a few of which are oral evidence,
documentary evidence, circumstantial evidence, real evidence and hearsay
evidence. The authors of this work would add in this list electronic evidence.43

In Tanzania, the law relating to the principles of evidence is governed by the

TEA. Under this Act, there are two main methods of presenting evidence in
court. These are by oral and documentary evidence. The two main principles

39
See for instance supra note 3, ss. 62 and 66.
40
See Bogdam, M. Comparative Law, Kluwer Law and Taxation Publishers, Norstedts Juridik Tano,
1994, p.107
41
Rao, S. R., Lectures on Law of Evidence (Indian Evidence Act, 1872 as amended by Act No. 4 of
2003), Asian Law House, 2004
42
Hornby, A. S., Oxford Advanced Learner‟s Dictionary of Current English, Fourth Edition, Oxford
University Press, 1989 at p. 772
43
Buzzard, J. H., Phipson on Evidence, 13th ed. sweet & Mascrel, London 19 & 2 at p.2

13
which govern admissibility of documents are exceptions to the hearsay rule
and the best evidence rule. Exception to the hearsay rule is enshrined in
section 34 of the Tanzania Evidence Act, 1967 that lays down conditions for
admissibility of hearsay evidence. One of the exceptions is when the
statement whether written or oral was made in the ordinary course of
business by a person who cannot be found by reason of either death,
diplomatic immunity, refusal to testify, or the exorbitant expenses of procuring
him. The best evidence rule is provided for under section 63 of the Act, which
provides that contents of documents may be proved by either primary or by
secondary evidence.44 Section 66 of the Tanzania Evidence Act provides for
the best evidence rule as follows:

“Documents must be proved by primary evidence except as otherwise

provided in this Act.”

Primary evidence is defined under section 64(1) which states that primary
evidence is the document itself produced for the inspection of the court. Under
sections 67 and 68, secondary evidence may be admitted in court where the
original cannot be found. The principle stated above was reiterated in Shirin
Rajabali Jessa v. Alipio Zorilla M.45 as follows;

“A document must be proved by primary evidence by producing the

document itself for the inspection of the court, and by secondary evidence
when it falls under the categories of S. 67.”

From the analysis of the provisions above, it is clear that the terms
“documents”, “books”, “records”, “written”, “signed” assume existence of a
tangible thing which under, normal circumstances, entails a piece of paper.
The ordinary construction given to these terms excludes evidence derived
from electronic transactions. They are thus suited only to a paper-based
economy. It can therefore correctly be stated that the Evidence Act of 1967

44
Law of Evidence Act, 1967
45
[1973] LRT n. 34

14
was enacted to govern paper-based transactions. The reason is based on the
requirement posed that a document or record must be in writing and must
bear a signature. The main legal challenges facing electronic evidence under
the current paper-based statutes, including the Evidence Act of 1967, is the
requirement of writing and signatures.

The nature of electronic evidence entails information that is recorded

electronically. The information may be created electronically or simply stored
in an electronic form. At one stage, it may be on paper as printout and at the
other stage, it may be in a computer hard disk, compact disc, and floppy
diskette. It may also be resident in a network, including the Internet.

The discussion above raises a number of basic questions as follows: Will a

document generated by a computer satisfy the requirement of writing? Should
electronic evidence be allowed into a court of law to prove or disprove a fact
in issue? If so, what form should the evidence of this nature take? A computer
print-out? A soft copy, which is a record or document in electronic form
resident in a disk? What should be regarded as the original? Can or should a
printout be said to be a “copy” (secondary evidence) of the “original”
electronically stored version? How are electronic records and documents
assured of their security, reliability and authenticity?

It is these questions that necessitate a re-examination of the Tanzania law of

evidence for the purpose of assessing the impact of the advancement in
computer technologies on it.

It will therefore be recommended that, there is an urgent need for creating a

comprehensive legal framework that accommodates pieces of electronic
evidence generated mainly through electronic transactions.

It will be recommended that in going through this process, two main

approaches should be adopted. These are legislative and judicial
interventions. Legislative intervention will lead to having a legal framework for
admissibility of electronic evidence, particularly records and documents
created in electronic form. It will also be argued that the need to harmonize

15
the law of evidence to facilitate electronic transactions, including e-commerce,
is overdue. It will be suggested that, rather than introducing a few provisions
in the amendment of the Evidence Act as has recently been done, new
comprehensive statute on evidence which will take into account electronic
records in addition to all other aspects of evidence is required. The end result
of whatever approach to be adopted should be a legal framework that provide
for clear guidelines for recognition of electronic evidence in court.

In respect to judicial intervention, it will be argued that the current principles of

the law of evidence based on production are ideal. These principles are,
however, not ideal for records and documents in electronic form. Two
alternatives are suggested in this study. The first one is to treat the evidence
of this nature as demonstrative. In this, once a party has produced a disk or
hard disk containing information to be relied upon, the court should admit it as
demonstrative evidence similar to what happens when the court visits a site in
dispute. As long as the information can be displayed on the computer or video
screen, the court should record that it has inspected the information. Of
course, the weight should be left to the presiding judge or magistrate. The
second one is for the courts, particularly courts of records, to give wide
interpretations to paper-based principles related to admissibility of records
and documents to cover records and documents in electronic form.

1.4 Objectives and Scope

The objective of the study leading to this work was to examine whether the
principles governing recognition and admissibility of evidence under the
Evidence Act, 1967 can accommodate evidence generated from electronic
transactions. This study has therefore identified the problems in relation to
admissibility of electronic evidence, analyzed them and recommended the
solutions based on experiences drawn from various jurisdictions that have
legal frameworks and which recognize electronically obtained evidence in
place.

The study was limited to the assessment of the impact of the advancement of
Information Communication Technology in commercial transactions generally,

16
and on the law of evidence in Tanzania. The various pieces of legislation were
analysed with the main focus on the Evidence Act, 1967. The relevant
information on development of ICT in Tanzania was collected from three
regions, namely Dar es Salaam, Arusha and Mwanza.

1.5 Previous Investigations and Discussions

The subject of Electronic Transactions and the Law of Evidence has not
attracted many researchers in Tanzania. The consequence of this scenario is
that there is little literature on this subject area. The little literature available is
a few reports by the Law Reform Commission of Tanzania. At the
international level, a number of studies have been done in relation to this
subject. Sarkar46 is one of the famous researchers who explored on
admissibility of electronic evidence under the Indian Evidence Act, 187247 as
amended by Information Technology Act, 2000.48 His work reveals the fact
that the law of evidence of India has undergone many changes as a result of
advancement of information technology. Sarkar‟s work is of great significance
for Tanzania in that Tanzania‟s law of evidence traces its origin to India.
However, the Tanzania Evidence Act, 1967, as shall be elaborated further in
this book, has remained rigid and insensitive to technological changes.

Kahn & Blair49 jointly explored admissibility of electronic mail as evidence. The
work of these authors is very important because it contains a discussion on
the anatomy of the e-mail. The authors point out that, before a court admits an
e-mail, it must be satisfied of its integrity and authenticity. The study, however,
addresses the American position. It will be argued that the study is indeed
relevant in the Tanzania situation because the subject matter of this study is
universal. Moreover, the Internet originated in America and many internet

46
Sarkar, M. C. Sarkar on Evidence, 15th edn, Wadhwa & Company Nagpur, 2001 Vols. I and II.
47
Act No. 1 of 1872 (India)
48
Act No. 21 of 2000
49
Kahn, R. A., & Blair, B. T., The Anatomy of An E-mail Message: Why Good e-Business Records
Require More than Meets the Eye, accessed at http://www.kahnconsultinginc.com/library/KCI-
Anatomy-of-an-Email.pdf on 25/02/2005

17
servers are located in America. Hence, legal development taking place in
America in relation to the internet should have an effect in the Tanzanian legal
system as well.

An article by Asian School of Cyberspace50 is also relevant to this study. The

authors of this article analyzed digital evidence under the Indian Evidence Act,
1872 as amended by the Information Technology Act, of 2000.

One website source contains an article entitled “Using E-Mail as Evidence”.51

The article addresses the issue as to whether e-mails can be used as
evidence in a Family Court System.

Eckberg52 in his article warns lawyers “e-mail is the best thing since slippery
banana peels”. According to Eckberg, a survey carried in 840 U. S companies
by Policy Institute and the American Management Association in 2004
revealed that one in five firms have either received subpoenas for employee
e-mail or have used e-mail to defend the firm against allegations of sexual,
racial or other discrimination claims.

Dror53 explored the usages of e-mail as evidence in America. He pinpoints

that an e-mail message has been the main piece of evidence in a wide-
ranging investigation. He underlines the importance of companies to monitor
the employees‟ e-mails as they may be used as evidence in the event of a
dispute. The article addresses the US as well as the Israeli position in this
respect. Though the article does not address the Tanzania situation, it will be
used as background information in this paper.

50
Accessed at http://www.asianlaws.org/cyberlaw/library/india/cc/dig_evi_legal.htm on 25/02/2005
51
Accessed at http://deltabravo.net/custody/email.htm on 03/03/2005
52
Eckberg J., E-Mail: Messages are evidence, accessed at
http://www.enqurer.com/editions/2004/07/27/biz_biz2.html on 03/03/2005
53
Dror, Yuval, Haaret‟z 21.11.2002 accessed at http://www.aliroo.com/corporate/haaretz.html
accessed on 03/03/2005

18
Glordano54 discussed admissibility and recovery of electronic evidence in both
the California and Federal Courts of the United States of America. The study
though not addressed to the Tanzania situation is important because it
addresses various steps that can be taken to make sure that electronic
evidence is authentic. The study also will be used in this paper as background
material.

Hagberg,55 addressing admissibility of e-mail, noted that e-mail can play a key
role in discovery and trial for the reason that it contains a wealth of
information. The author further discusses a few cases in which e-mail
evidence has played a substantial role despite the fact that some courts are
still grappling with the admissibility of e-mail and documents retrieved from the
computer‟s hard disk.

Harris56 explored admissibility of electronic records from a South Africa

perspective. The author addresses the issue as to whether electronic records
fall within the ambit of archival law. The solution to challenges posed by
computer technologies in relation to records is also addressed in this work.

Harris57 further points out that before the 1983 Computer Evidence Act; South
Africa was rooted in reliance to oral testimony and authentic documents. Proof
of contents of documents is made by production of the original. The law
allows production of copies, but the courts must be convinced that copies
have been produced in the ordinary course of business and subjected to
stringent control mechanisms.

54
Giordano, S. M., Authenticating Electronic Evidence in California and Federal Court,. accessed at
http://www.ceb.com/newsletterv7/Civ_lit.htm on 03/03/2005

55
Hagberg, Karen L., and A. Max Olson. "Shadow Data, E-mail Play a Key Role in Discovery, Trial."

NewYork Law Journal (1997)

56
Harris, V. Law, Evidence and Electronic Records: A Strategic Perspective from the Global
Periphery” National Archives of South Africa Journal of the Society of Archivists, Volume 25,
Number 2 / October 2004 at pp 211 - 220
57
Ibid

19
An Article prepared by the London Office of Sidley & Austin, 58 is also relevant
to this study because it addresses the circumstances under which e-mail is
admissible as evidence under the Civil Evidence Act 1995 of the United
Kingdom. The study addresses the UK position. However, it will be used as
background material in this study.

Ryan & Shpantzer59 jointly discussed admissibility of digital evidence from the
American perspective. The other author, Krishnamachari60 discusses the law
of evidence of India as amended by the Information Technology Act of 2000.
Similar to Sakar‟s work, Krishnamachari‟s work is important to this study
because it shows how the Indian Evidence Act of 1872 has been amended to
respond to changes brought by computer technologies.

Takach61 explored admissibility of electronic evidence under the Evidence Act

of Canada. Various aspects of electronic evidence ranging from admissibility
of computer records, discovery and retention of electronic records and
documents are discussed his work.

Another important source of material in the subject matter of this study is a

consultation paper prepared by the Uniform Law Conference of Canada
entitled “Uniform Electronic Evidence Act of Canada.”62 The consultation
paper addresses the manner in which Canada reacted to changes caused by
advancement of ICTs on various laws including the Evidence Act of Canada.
The solution to such challenges was addressed by amending the law of
evidence to provide for legal recognition of electronic evidence.

58
Accessed at http://www.sidley.com/cyberlaw_new.asp on 24/2/2005
59
Ryan D. J., & Shpantzer, G., “Legal Aspects of Digital Forensics”, The George Washington
University, Washington, D. C.
60
Krishnamachari, V., Law of Evidence, Fifth Edition, S. Gogia & Company, Hyderabad, 2003
61
Takach, S. G., Computer Law, 2nd ed. (2003) at Chapter 6.
62
See an article entitled Uniform Electronic Evidence Act Consultation Paper, by Uniform Law
Conference of Canada accessed at Uniform Law Conference of Canada at
http://www.law.ualberta.ca/alri/ulc/current/eelev.htm on 25/02/2005

20
Though the studies reviewed above do not describe the situation as prevailing
in Tanzania in respect of the subject under discussion, they are significant
and important to this study because Tanzania is likely to draw from them
some lessons that may assist it in addressing the challenges that computer
technology has posed in the law of evidence. For this reason, the studies will
be used to form the background materials to this study.

As reflected in the literature review above, the impact of ICT on e-commerce

and on the law of evidence is one of the areas where little research has been
done in Tanzania. A number of lessons are therefore to be drawn from
various countries which have so far addressed the impact of ICT on the law of
evidence. The discussions in this work are expected to raise awareness on
the part of law makers and the public in general.

It is also expected that the work will lay a foundation for debate or further
discussion that may ultimately lead to having a clear legal framework on
electronic transactions and electronic evidence in Tanzania. It will also
contribute to the availability of literature on the impact of ICT on the rules of
evidence. The findings of this work will also excite further research on this
subject.

1.6 Conclusion

This Chapter aims at making a general introduction on the impact of ICT on

rules of evidence under the Evidence Act, 1967. It is revealed in this Chapter
that the main area that has been affected by the advancement of Information
Communication Technology under TEA is documentary evidence and rules of
authentication. The current position under the Act is that it does not provide
for admissibility of electronic evidence and signatures in the electronic form,
except for the few provisions in the recent amendments63. It will be
recommended that a legal framework to this effect is needed to admit various
kinds of electronic evidence. The alternatives suggested above, namely to
have a new comprehensive law of evidence to govern admissibility of

63
See supra note 4

21
electronic documents or to have the current principles applicable to
documentary evidence extended by courts to cover electronic documents,
would lead to having such a proposed legal framework in place. The recent
amendment to the Tanzania Evidence Act is an ideal development. 64 Yet it is
inadequate, given the huge impact posed by ICT on various transactions. The
rationale is to have a law that accommodates new developments caused by
ICT in the law of evidence. It has been observed that computer technology is
rapidly changing the world economy from paper-based to information-based
economy. The law should therefore be able to regulate such information-
based economy for promotion and growth of E-Commerce.

64
Ibid Sections 33-36.

22
 CHAPTER TWO:
INTERNATIONAL ELECTRONIC COMMERCE
2.1 Introduction
The origins of the Internet go back to the 1960s when new ways of
communicating between researchers were sought. In 1969, the ARPANET
was established between several U.S universities with support from the U.S
Department of Defence. The ARPANET allowed communication between
users through the “Network Control Protocol” which converted messages into
streams of packets at the source, and then reassembled them back into
messages at the destination. During the first decade, the ARPANET was
mainly used to facilitate e-mail (The first one was sent in 1972,) to support
discussion groups, to allow access to distant databases, and support the
transfer of files between government agencies, companies and universities.
The U.S became briefly interested in the ARPANET as a wartime
communication tool, but this idea was quickly abandoned. During the early
1980s, the TCP/IP Protocol was introduced; it set standards for the flow of
information across networks and allowed the identification of users through
internet addresses or domain names. This gave rise to communication
between various interconnected networks and, thus, the internet was born.
In 1990, the World Wide Web (www) was created, allowing for the first time
the online transmission of web pages, which integrated text and graphics. In
order to facilitate information exchange over the web, various programs and
applications were introduced, which made the once research-oriented system
more accessible for commercial and private use. Commercial activities on the
internet, such as virtual shopping and online banking, started in 1994.
Meanwhile, public support of the internet in the United States had been
largely phased out.
Since its beginning in 1969, the internet has experienced rapid growth. The
number of Internet users grew from 32 in 1972, 1,000,000 in 1992 to
6,499,697,060 in 2006.65

65
Internet World Statistics accessed at http://www.internetworldstats.com/stats.htm on 27 September,
2006. See also Hobbes Zakon, R. “Internet Timeline” 1997; Hafner and Lon, 1996;OECD, 1997f;
Wendel,K. “Internet History”, 1997.

23
The first international online links were established in 1973, with connections
between the United States, the United Kingdom and Norway. In 1997, more
than 110 countries were connected to the Internet and universal coverage
continued increasing to date.
But the Internet is only one among many instruments for creating electronic
transactions. Six main instruments of electronic transactions can be
distinguished: the telephone, the fax, television, electronic payment and
money transfer systems, electronic data interchange (EDI) and the Internet
itself. This list creates a broad definition of “electronic transactions”. In many
discussions, “electronic transactions” refer only to the Internet and other
network-based communications.

It is an undeniable fact that electronic transactions play a pivotal role in almost

all aspects of international economic dealings today.
In this chapter, the various rules of electronic commerce, as one among such
international electronic transactions, are explored. This chapter also deals
with legal aspects of international electronic contracts generally, sale of goods
contracts, as well as the disputes resolution systems in case of breach of the
terms of those contracts.
The role of the WTO in relation to the challenges posed by ICT and the
electronic transactions in the whole issue of international trade is also
examined. It is pointed out at the end that the nature of business transactions
under international electronic commerce requires parallel changes in the legal
aspects of international trading patterns, including methods of resolving
disputes arising therefrom.
A variety of electronic transactions gave birth to an “E” language; we now
speak of e-commerce, e- learning, e-finance, e-insurance, e- banking, e-
governance, and the like.
What is e-commerce?
Electronic commerce can be defined broadly as:
“The use of electronic networks to exchange information, products, services
and payments for commercial and communication purposes between
individuals (consumers) and businesses, between businesses themselves,

24
between individuals themselves, within government, or between the public
and government and, last, between business and government”66
It refers to transactions between buyers and sellers over open computer
networks such as the Internet. It is the paperless exchange of business
information using Electronic Data Interchange (EDI), electronic e-mail,
Electronic bulletin boards, Electronic Funds Transfer and other network based
technologies. Not only does it automate manual processes and paper
transactions, but it also helps organisations move to a fully electronic
environment and change the way they operate businesses.
This definition encompasses the many kinds of business activities that are
being conducted electronically and conveys the notion that electronic
commerce is much more comprehensive than simply the purchasing goods
and services electronically.

What are the benefits of e-commerce?

E-commerce is transforming the global marketplace, and its impact is being
felt across the full range of business and government. E-commerce requires
an open, predictable and transparent trading environment, which operates
across territorial borders and jurisdictions. To foster such an environment and
to realise its full economic potential necessitates international co-operation, so
as to develop the enabling conditions for its growth.

66
Green Paper on Electronic Commerce for South Africa - A public discussion paper accessed at
http://docweb.pwv.gov.za/Ecomm-Debate/myweb/greenpaper 12 August 2002

25
Countries have to work together to remove barriers or impediments to the free
flow of electronic products and services across jurisdictions and to resolve
problems that may arise due to its borderless character. Government is
shown to be the appropriate vehicle to ensure that this is possible.
The main benefits of e-commerce are demonstrated by the following
achievements:
Improved response time. It provides quick and cost-efficient ways through
which to communicate and update information.
Improved competitive positioning. Electronic commerce has a potential to
level the playing field for small and large entities throughout the world. Small
and medium enterprises and public-sector customers reap the benefits of e-
commerce.
Ease of concluding deals and financial transactions. Click-and-pay
technology is gaining popularity as a means through which to transact.
Published information, communicating, buying, selling, paying and checking
orders occurs 24 hours a day, 365 days a year.
Extended market reach and thus increased revenue potential.
Geographic barriers or boundaries are removed. An increased number of
Internet users exist to whom to market products and services at lower cost
and greater speed.
Increased consumer convenience and choice. Consumers can easily
locate hard-to-find goods and services, and also have a wide choice from
which to make a purchase anytime, anywhere.
Reduced prices. Increased competition forces organisations to produce
better quality products at reduced cost.
Improved customer service. Information is shared more quickly through the
use of an electronic medium.
In the long term, e-commerce via the internet is certainly the mechanism with
the highest volume of electronic transactions, as it creates a world-wide
market without the necessity for buyer and seller ever to meet. This market is
growing at an explosive rate, with software companies already selling and

26
transmitting their software over the Internet, and online banks opening
accounts with customers in far-flung parts of the world.67
On the international level, e-commerce has been one of the most visible
examples of the way in which ICT can contribute to international economic
growth. It helps countries improve trade efficiency and facilitates the
integration of developing countries into the global economy. It allows
businesses and entrepreneurs to become more competitive.68
Traditional international trade essentially consists of moving goods and/or
services in one direction and of money in the other. This cannot be done
without sharing information between all the parties involved in the transaction,
parties such as the manufacturer, agents and brokers, suppliers of transport
services, banks, insurers, custom authorities in at least two countries, etc.
Fifty parties or more may be involved in one trade transaction.
But paper documents represent an old and ineffective technology. If
information is communicated on paper, one needs to transport a lot of paper
in addition to the actual information. It takes time, and it is expensive. The
paper is bulky, and it is an insecure technology for storing and transmission of
information. For those reasons, there is a strong desire to get rid of paper in
trade, transport, finance and administration. One wants to utilize modern
information technology for a more effective and rational handling of
information.
However, in any such new developments, challenges are inevitably apparent.
The major legal challenges resulting from these developments are not related
to the technology as such, but to the utilization of such new technologies that
have changed the way business and its administration are done.

67
“International Electronic Commerce” Report to the Ranking Senate Minority

Member of the Joint Economic Committee, United States General Accounting Office

March 2002
68
Annan, Kofi in E-Commerce and Development Report 2002, last accessed on September 26, 2006 at
http://www.unctad.org/ecommerce/ecommerce_en/edr02_en.htm

27
2.2 Legal Aspects of International E-Commerce
The existing international legal rules did not at first fit the new business
infrastructure. The communication of legally significant information in the form
of paperless messages was hindered by legal obstacles to the use of such
messages or by the uncertainty as to their legal effect or validity.69
With rapidly increasing interest in doing business over the Internet and the
corresponding legal challenges, the international community has shown
concern and has taken various legislative steps for many years now.70
As far back as 1985, the UNCITRAL adopted a recommendation to
governments and international organizations to elaborate legal texts relating
to trade. They were required to review the rules within their competence
relating to automatic data processing with a view to eliminating unnecessary
obstacles to the use of automatic data processing in international trade.71
A few years later, further legislative steps were taken. This time, the UN
adopted the Model Law on E-Commerce with Guide to Enactment.72 The
purpose of the Model Law was to offer national legislators a set of
internationally acceptable rules as to how a number of legal obstacles to
electronic commerce might be removed. The principles expressed in the law
were also intended to facilitate the use of modern means of communications
and storage of information. It was based on the establishment of a functional
equivalent for electronic media of paper-based concepts such as "writing",
"signature" and "original". By providing standards by which the legal value of
electronic messages could be assessed, the Model Law was intended to play
a significant role in enhancing the use of paperless communication. It also

69
Spyrelli, C, „Electronic Signatures: A Transatlantic Bridge? An EU and US

Legal Approach Towards Electronic Authentication‟, The Journal of Information,

Law and Technology (JILT) 2002(2) <http://elj.warwick.ac.uk/jilt/02-2/spyrelli.html>

70
UNCITAL Model Law on Electronic Commerce (1996), UN and Draft Resolution No. II: UN
Convention on the Use of Electronic Communications in International Contracts, 2005
71
1985 UNCITRAL - Recommendation on the Legal Value of Computer Records
72
Model Law on Electronic Commerce with Guide to Enactment, Adopted by UNCITRAL on 12 June
1996.

28
contained rules for electronic commerce in specific areas, such as carriage of
goods, contracts and the like.

Furthermore, the Model law may be useful in certain cases as a tool for
interpreting existing international conventions and other international
instruments that create legal obstacles to the use of electronic commerce.
It should be noted that, while the Model law was drafted with constant
reference to the more modern communication techniques such as EDI and
electronic mails, the principles on which it was based, as well as its
provisions, are intended to apply also in the context of less advanced
communication techniques, such as telecopy. There exist situations where
digitalized information initially dispatched in the form of a standardised EDI
message might, at some point in the communication chain between the
sender and the recipient, be forwarded in the form of a computer print-out.
Such situations are covered by the Model law based on the understanding
that more communication techniques are in rapid developments, and future
situations need to be covered as well.

In a more focused legal approach, the Model law establishes rules relating to
admissibility and evidential weight to be accorded to electronic data message
in e-commerce.73

With respect to admissibility, the Model Law establishes that data messages
should not be denied admissibility as evidence in legal proceedings on the
sole ground that they are in electronic form.74 This puts emphasis on the
general principle stated in the law, and is needed to make it expressly
applicable to admissibility of evidence, an area in which particularly complex
issues might arise in certain jurisdictions as will be discussed elsewhere in
this book. The term "best evidence" is a term understood in, and necessary
for, certain common law jurisdictions. However, the notion of "best evidence"
could raise a great deal of uncertainty in legal systems in which such a rule is

73
Article 9 of the Model Law
74
Ibid, para 1

29
unknown. States in which the term would be regarded as meaningless and
potentially misleading may wish to enact the Model Law without the reference
to the "best evidence" rule.
As regards the assessment of the evidential weight of a data message, the
Model Law provides useful guidance as to how the evidential value of data
messages should be assessed (e.g., depending on whether they were
generated, stored or communicated in a reliable manner).
In yet another development, the UN adopted the Model Law on Electronic
Signatures.75 The Model Law aims at bringing additional legal certainty to the
use of electronic signatures. Building on the flexible principle contained in the
UNCITRAL Model Law on Electronic Commerce, it establishes criteria of
technical reliability for the equivalence between electronic and hand-written
signatures. The Model Law follows a technology-neutral approach, which
avoids favouring the use of any specific technical product. It further
establishes basic rules of conduct that may serve as guidelines for assessing
possible responsibilities and liabilities for the signatory, the relying party and
trusted third parties intervening in the signature process.

2.2.1 Formation of International Electronic contracts

The two most common ways of entering into contracts on the World Wide
Web are by exchange of e-mail or by what is known as Web-click whereby a
shopper visits the website of an e-merchant and selects the item(s) or orders
the service that he or she is after. There are certain preliminary considerations
that apply to both types of contracts. Such considerations include whether a
valid contract can be concluded wholly electronically at all and, if it can, how
such a contract can be authenticated and attested to by a legally valid
signature if necessary and what the legally acceptable proof of the contract
is? It seems taken for granted that a contract can be concluded validly over
the World Wide Web. In general, this is true. In the common law tradition,
apart from a few specific exceptions, a contract may be concluded by any

75
UNCITRAL Model Law on Electronic Signatures with Guide to Enactment, Adopted by
UNCITRAL on 5 July 2001

30
means including writing, orally or by conduct.76 Other countries may require
that contracts, especially involving those above a set amount of money,
should be in or evidenced in writing. In such a case the question that arises is
whether an Internet contract satisfies the requirement. Under pre-Internet era
traditional law, such a contract would not normally satisfy the requirement of
writing because that would require visible representation in tangible form
whereas computer data is, strictly speaking, intangible. This problem has
been largely resolved in many countries through the passing of legislation that
operates using a „functional equivalence‟ approach of giving the same legal
effect to data messages as to paper-based documents. Incidentally, the
legislation in different countries exhibits similarities in part because most can
trace provenance in some way or other to an instrument of the United Nations
Commission on International trade Law (UNCITRAL) Model Law on Electronic
Commerce of 1996.
The most recent of the series of UN developments on the area of e-commerce
is perhaps the adoption of the UN Convention on the Use of Electronic
Communications in International Contracts (hereinafter referred to as
Electronic Contracts Convention), 2005.77
The Convention aims to enhance legal certainty and commercial predictability
where electronic communications are used in relation to international
contracts.
The convention applies to the use of electronic communications in connection
with the formation or performance of a contract between parties whose places
of business are in different States.78
The fact that the parties have their places of business in different States is to
be disregarded whenever this fact does not appear either from the contract or
from any dealings between the parties or from information disclosed by the

76 Emily M. Weitzenboeck, “Electronic Agents and the Formation of Contracts” International Journal
of Law and Information Technology, Vol.9, No.3 (2001): pp. 204-234, accessed at
<http://www.ijlit.oxfordjournals.org/cgi/content/abstract/9/3/204>

77
UNGA Res. A/60/21, 23 November 2005. As of July 2006, only six states have signed the text of the
Convention, and none has so far formally ratified it.
78
Ibid, Article 10

31
parties at any time before or at the conclusion of the contract. In accordance
with the provisions of this convention, neither the nationality nor the civil or
commercial character of the parties or of the contract is to be taken into
consideration in determining the application of the Convention.79
The Convention assures companies and traders around the world that
contracts negotiated electronically are as valid and enforceable as traditional
paper-based transactions.80 The treaty seeks to remove obstacles to the use
of electronic communications in international contracting, including obstacles
that might arise under current international trade law instruments, most of
which were negotiated long before the development of technologies such as
e-mail, electronic data interchange and the Internet.

The provisions of the Convention deal with, among other things, determining a
party's location in an electronic environment; the time and place of dispatch
and receipt of electronic communications; and the use of automated message
systems for contract formation.81
Other provisions contain criteria establishing functional equivalence between
electronic communications and paper documents, including "original" paper
documents as well as between electronic authentication methods and
handwritten signatures.82

The Convention complements and builds upon earlier instruments on

international trade, including the UN Convention on contracts for the
International Sale of Goods,83 the Model Law on Electronic Commerce and
the Model Law on Electronic Signatures.84

79
See Ibid, Article 1
80
Ibid, Article 8
81
Ibid, Articles 6 and 12
82
Ibid, Article 8 and 9
83
Vienna, 11 April 1980
84
Supra note….

32
2.2.2 Electronic Commerce and the International Sale of Goods
The introduction of newer technologies and applications such as fax,
electronic data interchange (EDI) and the internet have also had great impact
on the existing legal regime for the international sale of goods. The question
of international sale of goods is regulated by a number of international
treaties, including the UN Convention for the International Sale of Goods 1980
(CISG).85 Although the advent of modern communication techniques provides
a challenge to the traditional rules of sale of goods contracts, the provisions of
the CISG form a coherent body of contract law, well suited to deal adequately
with modern communications techniques in international business.
The CISG is applicable to all sales contracts where the parties to the contract
have their place of business in different States and where, firstly, the States in
question are parties to the Convention, or secondly, where the normal private
international law rules lead to the application of the law of a Contracting State,
or thirdly, where the parties choose the CISG as the applicable law directly or
indirectly.86
Thus, if G, who has his place of business in Germany (Contracting State),
orders goods from A, who has his place of business in Australia (Contracting
State), then the CISG will apply to their agreement, unless they expressly
exclude the application of the Convention, since both countries are
Contracting States.
Similarly, if S who has place of business in South Africa (non-Contracting
State) orders goods from A, who has his place of business in Austria
(Contracting State), then the CISG will apply to their agreement if the normal
private international law rules make the Austrian law applicable, since the
CISG is regarded as part of Austrian domestic law
One must, however, be careful in the second type of situation because, in
terms of the CISG, a number of countries have made reservations to the
effect that the CISG will not apply where one of the parties has its place of

85
Adopted by a diplomatic conference on 11 April 1980, the Convention establishes a comprehensive
code of legal rules governing the formation of contracts for the international sale of goods, the
obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract.
The Convention entered into force on 1 January 1988.
86
Ibid, Article 1

33
business in a non-Contracting State.87 Therefore, if S with its business place
in South Africa (non-Contracting State) concludes a sales agreement with U,
who has his place of business in the United States (Contracting State), then
the CISG will not apply even if the normal private international law rules refer
to the law of the United States because the United States has made use of
the right of reservation when ratifying the CISG.88
Thirdly if S with its business place in South Africa (non-Contracting State)
concludes a sales agreement with G, who has his place of business in
Germany (Contracting State), and the parties agree to a choice of law clause
in their agreement choosing German law, then the CISG will also apply as
part of the German domestic law.
In this case one can say that the CISG has been chosen indirectly because
often parties will not even be aware that the CISG will apply. A direct choice,
in contrast, will contain a specific reference to the applicability of the
Convention.
The analysis of offer and acceptance which forms part of the structure of the
CISG is often difficult to make in complicated negotiations where there is a
great deal of communication between the parties, as is often the case in
international trade. This is further complicated by the introduction of methods
of communication such as EDI which requires a more flexible approach than
the strict offer-acceptance dichotomy. It seems, however, that with the
provisions contained in the Convention, there is enough flexibility to evade the
constraints of forcing communications into either the offer or acceptance
mould.
The question as to when communications will become valid and binding in the
case of parties who are not in touch directly has been solved in a number of

87
For example: Upon ratifying the Convention, Denmark, Finland, Norway and Sweden declared, in
accordance with article 92, paragraph 1, that they would not be bound by Part II of the Convention
("Formation of the Contract"). Upon ratifying the Convention, Denmark, Finland, Norway and Sweden
declared, pursuant to article 94, paragraph 1 and 94, paragraph 2, that the Convention would not apply
to contracts of sale where the parties have their places of business in Denmark, Finland, Iceland,
Sweden or Norway. In a notification effected on 12 March 2003, Iceland declared, pursuant to article
94, paragraph 1, that the Convention would not apply to contracts of sale or to their formation where
the parties had their places of business in Denmark, Finland, Iceland, Norway or Sweden.
88
In terms of Article 95 of the Convention, a ratifying state may declare that it will not be bound by
subparagraph 1(b) of Article 1 of the CISG.

34
different ways. Each of these approaches in essence determines which of the
parties carries the risk of a communication being lost, destroyed or damaged
in the transition process.
Unless determined by agreement between the parties themselves there are
four main theories which may be applied:
(a) the information theory which determines that a communication only
becomes effective once the recipient takes notice of the content of the
communication. This theory is usually applied to direct forms of
communication such as telephone and may often also be the default position
in cases of uncertainty;
(b) the reception theory which determines that a communication only
becomes effective once the recipient has actually physically received the
communication or has at least been made available to the recipient, even
though he or she has not yet taken notice of the content. In terms of this
theory, the deciding moment is dependent upon the communication being
available to the recipient in the sense that it has been placed at his or her
disposal in a place in which he or she would expect to receive
communications in the normal course of business and in a manner which is
comprehensible to him or her. It is usually used in regard to indirect forms of
communication such as telegram and telex and has its origin in civil law
systems;
(c) the postal or dispatch theory in terms of which the communication is
effective once it has been posted or sent by the sender. This is usually
applied to cases of indirect communications and has its origins in the
Common Law where it was introduced to handle the issue of revocability of
offers;
(d) the formulation theory in terms of which the communication becomes
effective the moment that the responder begins to formulate its
communication. This theory is usually only used in conjunction with the postal
theory to prevent a party from retracting an offer or communication once the
other party has started to respond to that communication.89

89
http://www.cisg.law.pace.edu/cisg/biblio/eiselen1.html

35
Although these theories or principles were developed first and foremost to
deal with the risks of communications in the contract negotiations phase, they
are generally applied today to all forms of communications between
contractual parties.
When dealing with communications in electronic trade, a strong case can be
made out for the use of one of the variants of the reception theory rather than
the information or dispatch theory in the absence of any provision by the
parties. If EDI for instance, is being applied, it is quite easy to determine when
a party had access to a message, or when it had received it. On the other
hand, it may be very difficult to determine when a person actually became
informed of the existence or content of the message in a subjective sense.
Very often an electronic order will be acknowledged by the supplier's system
and executed by its plant without any person with executive powers actually
taking notice of the communication. In these circumstances, it is unrealistic to
apply the information theory. This theory also provides opportunities for the
recipient to play ducks and drakes with its opponent, and it encumbers the
sender with an almost impossible burden of proof.
It is therefore fair to conclude that the fear has not yet been realized that the
CISG would become an unchanging and static monument of legal unification
unable to deal with changing circumstances in a fast changing world. The
electronic revolution that has taken place in the last part of the twentieth
century, the new forms of communication brought with it and new ways of
doing business as a result of it, provide an excellent field to test the hardiness
and flexibility of the CISG. The foregoing discussion shows that the
Convention and its underlying principles are sufficiently robust and flexible to
deal with the changes and challenges posed by the new forms of
communication and that virtually no changes need be made to the
Convention. The areas where the approach or solution followed in the CISG
has been shown to be problematic stem not from the use of more modern
forms of communication, but rather are structural or conceptual deficiencies
that existed from the outset and are applicable to all forms of communication.

36
The above analysis clearly shows that the CISG is a coherent and logical
body of law able to survive and grow in the modern world.90

2.3 WTO and International Electronic Commerce

The WTO, a treaty organization establishing comprehensive legal and
institutional framework for international trading systems91, has not been
spared by the advances in the areas of ICT and e-commerce.
Since late 1990s, the WTO has been engaged in an effort to determine
whether the GATT, the GATS and TRIPs must be amended to respond to the
challenges posed by electronic commerce. This review process has focused
on questions of interpretation that arise when these agreements are applied to
international electronic trade. But the WTO has a rare opportunity to do more
than pursue a traditional liberalization agenda. Despite phenomenal rates of
growth, electronic commerce over the Internet is in its early stages of
development, and most countries are still reflecting on whether, and to what
extent, new legislation may be required. The WTO is in a unique position to
encourage its members to adopt rules that are consistent across international
borders without unnecessarily burdening electronic commerce or establishing
barriers to trade.
In order to play this coordinating role, the WTO will have to supplement the
existing framework of agreements. The existing GATT framework will not
suffice because it is clear that much of electronic commerce does not involve
trade in goods. Everyone would agree, for example, that providing online
brokerage advice or travel information involves delivery of a service, not sale
of goods. Moreover, there is disagreement over whether some electronically
delivered products should be treated as virtual goods, an issue of
considerable significance to the software industry. The issue is crucial for

90
Siegfried Eiselen. “Electronic commerce and the UN Convention on Contracts for the International
Sale of Goods (CISG) 1980” EDI Law Review (1999) 21-46
91
Loibl, Gerhard, “International Economic Law” in Malcom, Evans (ed), International Law, Oxford

University Press, New York, 2003, p.708

37
businesses engaging in e-commerce, since it determines which multilateral
trade rules and obligations apply to these transactions.92
Similarly, the existing GATS framework will not suffice. Unlike the GATT, the
GATS do not require Members to remove existing barriers to trade. Indeed, a
Member is not obligated to liberalize any part of its market for services unless
it specifically commits to do so. Members may decide whether to subject
themselves to National Treatment in a particular services sector and may
claim exemptions from the application of MFN. In light of these flexible legal
arrangements, it is not surprising that most WTO Members to date have made
very limited commitments to remove barriers to trade in services, although
some detailed proposals are being developed to reform the GATS framework,
giving it more bite. We support this work.
In light of the regime's current limitations, however, it would not make sense to
rely on GATS as the principal tool for eliminating barriers to electronic
commerce and coordinating regulatory policy.
Despite the importance of TRIPs, it also will not serve as a tool for preventing
or eliminating most potential barriers to electronic commerce. TRIPs covers
intellectual property, not goods or services, and thus will not prevent barriers
to trade in either of these areas. Moreover, TRIPs was not fully implemented,
until 2006. Thus, although TRIPs provides a good model for WTO's role,
TRIPs alone cannot serve to coordinate national efforts to regulate electronic
commerce.93
2.4 Dispute Settlement in International Electronic Commerce.
The subject of dispute resolution is of great relevance to the development of
international electronic commerce. Disputes in electronic commerce have
much in common with disputes in other contexts; however, there are also
some differences which require new or adapted solutions. It also has to be

92
Tim, Brightbill and Sarah Dylag, “Barriers to International Electronic commerce: Recent Issues and
Developments” in <http://www.wrf.com/docs/publications/11623.pdf>
93
WTO and Electronic Commerce: Issues for World Trade: A Microsoft White Paper, published in
September, 1999, in <http://www.microsoft.com/issues/essays/1999/11-15wto-b.mspx> Last accessed,
September 26, 2006

38
remembered that the types of disputes which can arise are very diverse in
nature, and therefore, solutions proposed must respond to this diversity.
When discussing international electronic disputes and the methods of their
settlement, a distinction is made between contractual and non-contractual
disputes. In the latter case, the subject of this discussion, the differences in
the contracts concerned must be taken into account. Three categories of
contracts appear particularly relevant:
(a)The first category is that which has perhaps attracted the most attention
among practitioners. It concerns the telecommunications infrastructure for
electronic commerce and specifically contracts between enterprises that
operate this infrastructure and enterprises that want to use it in order to offer
different or competing services to third parties. Such "interconnection"
agreements often affect public licences, and therefore have a special legal
status.
Disputes in this category tend to be particularly complex for a variety of
reasons. They concern questions of contract interpretation as well as
problems of contract modification which occur quite frequently since the
conditions of contract can change very quickly and the agreements reached in
a contract can be affected by provisions of other contracts. Finally, in many
countries regulatory bodies exist which have the power to intervene in the
conclusion and execution of such contracts. This last point is probably the
main reason why domestic rules of law (especially those relevant to the
licensing of telecommunication operations) often contain dispute-resolution
mechanisms. Disputes of this kind have already arisen and have been
brought before the courts94 or settled in special proceedings.
On the international level, the World Bank dispute resolution system under the
International Center for Settlement of Investment Disputes (ICSID) and the
new dispute resolution procedures of the World Trade Organisation, may play
a role in this area although at present only governments can be party to them.

94
This was the case with the dispute between Mercury and OFTEL, the British regulatory body,
concerning the basis on which British Telecom (BT) determined interconnect prices. On 9 February
1995, the House of Lords upheld Mercury‟s claim and revised the interpretation which OFTEL had
given to its agreement with BT.

39
(b) A second group of contracts consists of those which are concluded
between users of the Information Highway and firms that grant access to it. In
this group fall contracts regarding telecommunication services, in particular
those of "service providers" who grant access to communications networks.
The provisions of such contracts are normally set forth in the service
provider's general conditions of contract. Disputes in this area most often
concern bills and conditions of access, so that the amount in dispute is
generally quite small. However, this category includes more than simple billing
disputes, such as controversies with regard to the liability of service providers
or duties of the user concerning information transmitted.
(c) The most important and also interesting area is that of contracts between
users. It is in this group that the special characteristics of electronic commerce
and the variety of relationships to which it gives rise become particularly
apparent. In considering contracts between users, one could differentiate
between commercial contracts on the one hand and consumer contracts on
the other, based on both the differing treatment of these two categories of
contracts in national and international law and by the differing interests
involved. However, the criteria for differentiation are not entirely uniform and
the differences are often difficult to detect, particularly since world-wide
computer networks open up a global market even for the smallest purveyor of
goods and services.
One clearly notes from the foregoing that the rapid development of electronic
commerce must be expected to give rise to many disputes of various kinds.
The question of how these disputes can best be resolved has received little
attention, and there are few if any mechanisms available at present which are
adequate to the medium. It can be expected that the lack of suitable dispute-
resolution mechanisms will constitute a serious obstacle to the further
development of international electronic commerce.
Both the business and the legal communities need fundamentally to rethink
the approach to dispute resolution as it is now practised in court and
arbitration proceedings. Not only do existing laws and legal instruments need
to be re-evaluated, but also dispute resolution mechanisms need to be
reviewed to determine how they can be adapted to meet the needs of
electronic commerce.

40
Dispute-resolution mechanisms, which are consistent with the electronic
medium and make use of its potential, pose some new legal questions. Some
of them require domestic and international legislative action; others can be
resolved through private action by those directly involved in commercial
transactions or professional bodies.
The electronic medium, and in particular the facility of rapid communication
with all parts of the world, offers new possibilities to accelerate the
proceedings for dispute settlement. It also offers new dimensions for dispute
avoidance and resolution, in particular through the possibilities of consulting
interested and concerned circles, for instance through collective procedures
as they may be developed in user groups or expert fora.
There is a wide spectrum of dispute-resolution methods and mechanisms
which may be adapted for use in electronic commerce. In view of the variety
and complexity of the situations which may arise, it is suggested that a flexible
two-tier system of summary proceedings with a possible appeal in arbitration
is a suitable solution which with procedural fairness combines speed of
communication and efficiency.
2.5 Conclusion.
International electronic commerce poses a great challenge to the way
businesses are currently conducted.
The discussion in this chapter reveals that dramatic changes in the fabric of
international commerce necessarily require parallel changes in the
international legal framework to address those changes. An examination of
legislative interventions so far taken under the auspices the UNCITRAL on
international electronic commerce has been made. Approaches in the
formation of international electronic contracts and sale of goods have been
discussed showing the challenges they create to the existing traditional
trading systems at the international level.
It has been pointed out in this chapter that, although the international bodies
charged with duty of overseeing international business have taken serious
steps in modernising and harmonizing international electronic commerce legal
frameworks, much has yet to be done. The initiatives taken have a very
limited scope and are far from satisfactory for online business, especially in

41
the area of settlement of disputes arising from international electronic
commerce.
One more important challenge to the international community is to ensure that
current and future developments in the area are adopted and implemented
within States‟ legal frameworks for the expansion of international electronic
trading transactions.

42
 CHAPTER THREE

DEVELOPMENT OF ICT IN TANZANIA

3.1 Introduction.

This chapter looks at the historical development of Information and

Communication Technology in Tanzania. It portrays the early problems of IT
in Tanzania, the trends in the growth of computer use in the later years, the
current development of National ICT policy and the role of ICT in e-commerce
in the country. It is argued in this chapter that although Tanzania has so far
made great strides towards revolutionizing ICT in terms of access and
connectivity, these developments have achieved very little in the way of e-
commerce growth in the country. This is not to say there is no e-commerce in
Tanzania, but as compared to the rapid growth of e-commerce in the rest of
the world, the country faces a number of challenges in fully benefiting from
ICT development.

3.2 Historical Background

The history of ICT in Tanzania is very much associated with the development
of informatics which goes as far back as 1960s when the first computer, ICT
1500, was installed in the Ministry of Finance. By the early 1970s there were
seven computers in the country and the Ministry of Finance had acquired a
new computer, an ICL 1900.95

However, various problems beset the early introduction of computers, from

installation to software applications. The main problems faced during the early
development of computers in Tanzania included lack of qualified indigenous
experts, making the whole project to depend on foreign experts,
uncoordinated planning in the whole processes, leading to heavy financial
losses; and the consequent government intervention where, in 1974, the

95
Klodwig Mgaya, “Development of Information Technology in Tanzania”

43
importation of computers and all related accessories was banned by the
government.96

Although the government continued monitoring the importation of computers

into the country by requiring all computer importers to apply for import
licences, these bureaucratic tendencies were later overwhelmed by the high
demands for computer use, the obsolescence of existing computers and the
collapse of the East African Community in 1977. The latter factor resulted
from the fact that most of the organizations previously run by the collapsed
EAC, including railways, posts and telecommunications, civil aviation,
harbours and airways, had all computerized their operations. For these
organizations to continue their operations in the usual way, the government
had to buy computers and use the necessary Tanzanian computer personnel
who had already worked with the EAC.

3.3 Tanzania ICT National Policy

Despite good intentions, Tanzania has been plagued by an unclear and

inconsistent policy environment. This is acknowledged in the National ICT
Policy which states:
The lack of an overall policy and poor harmonization of initiatives, has
led to random adoption of different systems and standards,
unnecessary duplication of effort, and waste of scarce resources,
especially through the loss of potential Synergies. Therefore, this
National ICT Policy deploys a broad-based strategy to address
Tanzania‟s developmental agenda. The need for an appropriate
institutional arrangement to ensure that all stakeholders can rise to the
challenge of implementing this ICT policy, cannot be overemphasized97
But since 1997, Tanzania has made a remarkable development in ICT with
initiatives between both individuals and private as well as public entities.
Currently, the country has more than 21 licensed Internet Service Providers
(ISPs) to provide internet services to various customers, many of which are

96
This came as the result of criticisms from members of parliament and the general public.
97
National ICT Policy: Ministry of Communication and Transport, 2003

44
companies, government offices or Internet cafés throughout the country. Most
of the customers are located in Dar es Salaam.98 Internet Cafés therefore
provide a viable access option for enterprises/individuals that do not have
their own computers and telecommunications access. Furthermore, the
Tanzania Communications Commission (TCC)99 has licensed six companies
to provide public data communication services including Internet bandwidth.

In a further development, there have been a number of companies in

manufacturing, commercial or service sectors that have increased their
investments in ICT products and services, some investing as high as 75% of
all investments in equipment in order to boost productivity and efficiency and
hence, their competitiveness. Parallel to that, there has been growth of
employment opportunities particularly in software application area in banking,
shopping, education, health, agriculture, business, and teleworking as well as
software development. In addition, several large banks, multinationals and
large companies make extensive use of networked computers, some with
Internet access available on the networks. The banking sector makes
extensive use of ICT to provide improved customer service with some banks
interconnecting their branches and cash-dispensing ATMs.

These initiatives that gradually included Tanzania in the global information

society forced the government to recognize the importance of ICT in
facilitating other sectors of the economy, enabling them to function properly
and efficiently and thus to contribute to national growth. The government also
acknowledged that ICT was vital in supporting its efforts to achieve national
objectives for the promotion and consolidation of democracy, transparency
and openness, and good governance; for extending the provision of social
and economic services for poverty alleviation; and for narrowing the existing

98
National Policy on ICT, p. 18

99
Government regulator of Communication and broadcasting established by S. 3 of Tanzania

45
digital divide.100 The government therefore prepared the National ICT Policy of
Tanzania in 2003 to coordinate all matters related to ICT in the country. 101

3.4 An Overview of the National ICT Policy

In order to coordinate ICT activities in the country, the Tanzanian government

in May 2002 formulated the first order draft of National ICT Policy of
Tanzania (hereinafter called “the Policy”). It then called for a one-day
workshop of all stakeholders to discuss it. The Policy was prepared in
conjunction with the Tanzania Development Vision 2025 (hereinafter called
“Vision 2025”), which explicitly includes ICT by noting: “The new opportunities
that ICT is opening up can be harnessed to meet the goals of the Vision.”

The policy is divided into several key areas which include (but are not limited
to) the development of ICT infrastructure and Universal Access. One may
however ask, five years later, how successful has the National policy been?
Has it achieved any of its stated aims or objectives? The success-so far-of the
policy can be evaluated through two representative examples: the creation of
the Tanzanian Internet Exchange and the Rural Telecommunications
Development Fund.
The National ICT Policy has as its first objective the need to:-
“Foster efficient, inter-operable, reliable and sustainable national ICT
Infrastructure commensurate with grass-roots needs and compliant with
regional and international standards, with increasing access while reducing
cost”

3.5 Background, Vision and Mission

The Policy acknowledges the wide range of converging activities, the dangers
of the digital divide and the risk of being excluded further from the knowledge
economy, all these being issues that pressed the Government to formulate a

100
Ibid
101
The policy can be viewed at www.ethinktanktz.org/esecretariat/DocArchive/zerothorder.pdf visited

on 30 June 2002

46
policy framework through which coordinating mechanisms and harmonised
strategies for ICT might be nurtured.102

The Policy states its vision in the following words: “By exploiting its unique
geographical position, Tanzania becomes a regional hub of ICT infrastructure
providing ICT-based solutions that enhance sustainable socio-economic
development, which addresses national and regional poverty reduction
concerns.”103 The Policy states that its mission is “to coordinate ICT activities
in the public and private sectors and to provide a conducive legal and
regulatory framework and private infrastructure investments in e-commerce
capacity building (infrastructure and human capital), software and hardware
development and production, and promoting regional and international
cooperation.”104

3.6 Objectives of the Policy

The objectives of the Policy are grouped into nine main areas. These are:
strategic ICT leadership, legal and regulatory framework, capacity building,
ICT infrastructure, ICT industry, ICT productive sectors, service sectors,
universal access, and local content. The main focus of this study is legal and
regulatory framework. It is the Policy‟s objective to establish and maintain an
enabling legal and regulatory framework aligned with Tanzania‟s constitutional
provisions, legislative and regulatory environment and consistent with regional
and global best practices. It further aims at ensuring that legislation is put in
place to address intellectual property rights issues unique to the use of ICT
networks. Finally, it is the objective of the Policy that Tanzania does not
become a haven for perpetrators of cyber-crimes.

102
Article 1.1 of the Tanzania ICT Policy
103
Ibid, article 1.2
104
Ibid, article 1.3

47
3.7 ICT Legal and Regulatory Framework in Tanzania

There is currently no single law, which specifically regulates ICT in Tanzania.

The Tanzanian Communications Regulatory Authority Act of 2003 comes
closest to this function. The Act establishes the Tanzania Communications
Regulatory Authority for the purpose of regulation of telecommunications,
broadcasting, and postal services. The Act also aims at providing for
allocation and management of the radio spectrum, covering electronic
technologies and other Information and Communication Technologies (ICT)
applications. The Act therefore combines the Tanzanian Communications
Commission and the Tanzanian Broadcasting Commission into one body
named the Tanzanian Communications Regulatory Authority (TCRA).
The TCRA reports to two ministers, the Minister of Communications and the
Minister for Broadcasting.
The Act defines the functions of the TCRA into three broad categories:
• Licensing
• Monitoring
• Dispute resolution
The TCRA‟s primary function is the issuing or cancellation of licences. It is
important to note that this is not an independent function, in the sense that the
TCRA can make a decision to grant or cancel a licence on its own. Any
licence relating to universal access or with a time period of more than five
years must be approved by the Minister of Communications or the relevant
sector minister.105

On the key role of monitoring, the functions of the TCRA are laid out in the
Act:
To monitor the performance of the regulated sectors including in
relation to –levels of investment, availability, quality and
standards of service, the cost of services, the efficiency of

105
Section 6

48
 production and distribution of services and other matters relevant
to the Authority106
As far as licensing is concerned, there are currently five basic categories of
telecommunications operators of which three are relevant:
• Public data communication operators
• Private data communication operators
• Internet service providers
There is full competition in each of these categories. The barriers to entry are
primarily financial (namely, start up capital and licence fees) rather than
regulatory.
We understand that there is an Electronic and Postal Communications Bill of
2005 which is aimed at providing for and regulating activities in the Electronic
and Postal Communications sectors and related matters.107 This Bill is not
intended to replace the Tanzanian Communications Regulatory Authority Act
of 2003, although, if enacted, it will make extensive amendments, including
repealing and replacing sections 6, 36 and 47 of the previous Act.108 It also
repeals the Tanzania Communications Act, 1993 and the Broadcasting
Services Act, 1993, and amends the Fair Competition Act, 2003.
It remains clear, however, that regulation of ICT in Tanzania is still at very
initial stage, and much needs to be done in the ICT legal framework.

The Policy underscores the new needs, rights and vulnerability brought by
globalisation and by the pervasiveness of the Internet. The policy underlines
that for secure electronic transactions to occur, an environment of trust must
be created and sustained through the legal and regulatory apparatus, taking
cognisance of constitutional rights and provisions of criminal, civil and
commercial laws.109

106
See Section 6(1) (c ).
107
According to available records, this Bill has not yet been tabled to Parliament for enactment
108
See Section 129 of the Electronic and Postal Communications Bill Act, 2005
109
ICT National Policy, part 3.5

49
The Policy acknowledges that Tanzania‟s legal framework, regulatory
capacity and related institutional infrastructure are inadequate in quantity, and
quality, diversity and that Tanzania currently lacks technological capacity
conducive for ICT development and application. It then identifies the need for
specific and effective legislative instruments on privacy, security, cyber crime,
ethical and moral conduct, encryption, digital signatures, copyrights,
intellectual property rights, fair trade practices and anti-trust practices as
some legal issues that should be addressed. The Policy proceeds to declare
the government‟s desire of providing a consolidated, effective legal and
regulatory framework that offers an environment conducive to the
development of ICT which can into account issues associated with the
convergence of telecommunication, broadcasting and information systems, so
that new opportunities are created for the citizens of Tanzania, in line with
their Constitution. It purposes, furthermore, to promote business in electronic
form in a secure environment and to put in place a legal framework to provide
the guiding principles, rules and legislation.

On placing the legal framework for ICT, the Policy promises that “the
Government will review existing laws and regulations in order to repeal or
adjust those that are not conducive to the healthy growth of the ICT industry
and enact new ones that take account of issues associated with Internet
Governance and the convergence of telecommunication, broadcasting and
information systems.”

3.8 A Critical Analysis of Tanzania‟s ICT Policy

The Policy emphasizes introduction of the legal and regulatory framework that
would be conducive for development of ICT in Tanzania. The way forward
proposed in the Policy is to review existing laws and regulations in order to
repeal or amend those that are not conducive to the growth of ICT. This
statement in the authors‟ view is too general. One would expect that thorough
research would be conducted with the intent of identifying the laws that have
been affected by ICT and the new areas that will require a completely new
piece of legislation. The present study makes a thorough research on the
impact which ICT has caused on the law of evidence, with the aim of coming

50
up with recommendations that may lead to creating a legal frame work that
gives electronic evidence legal recognition.

As shall be discussed later in this work, it is the view of the author, supported
by both literature and field survey, that the kind of reform suitable for Tanzania
is to have a comprehensive legislation which addresses all aspects of
ICT. The proposed legislation should be able to make amendment to all the
laws that have been affected by advancement of ICT. Specific pieces of
legislation, guidelines and rules peculiar to a particular field may be
promulgated. The rationale for this approach is the need to have a legal
framework that enhances predictability for parties transacting business that
uses the modern technologies, regardless of the medium used.

3.9 Current Situation on ICT in Tanzania

The key theme across the Tanzania ICT industry is the lack of clear legal
framework and government Implementation. In certain areas, lack of any
government coordination has created competitive sectors in the market, such
as the ISP sector. Other sectors, such as public data operators, are currently
dysfunctional. One of the unstated themes of Tanzanian ICT policy is that a
competitive market will provide more efficient services and reduce the burden
on government. This has meant that the data communication sector has been
thrown open to whoever can afford the license fees.
The belief in competition has informed the approach of the TCRA to the ICT
sector in the country.
The regulatory body sees itself primarily as a generator of revenues for the
government. It does not currently play, nor foresee itself as playing a valuable
role in creating a conducive legal framework in the ICT sector.
The previous section (the regulatory framework) laid out the functions of the
TCRA according to the Tanzanian Communications Regulatory Authority Act
of 2003. Specifically, it highlighted the section on monitoring. The TCRA is
required to monitor the levels of investment in the sector, the availability,
quality and standards of service, the cost of services and the efficiency of
production and distribution of services.

51
Additionally there is no local manufacture of ICT equipment in Tanzania: all
local dealers or agents import these products. There are no standards guiding
the imports of either hardware or software. Few local companies are
developing computer application packages. Most of the software used by both
public and private sectors is imported at considerable cost. The use of open-
source software is on the lower side. Overall, Tanzania has a small emerging
skilled capacity to support the ICT industry in terms of developing, selling or
supporting hardware and software.

3.10 ICT Development and electronic Commerce in Tanzania.

The way business and trade is conducted in Tanzania has not been spared by
the ICT revolution.110 A recent survey indicates that individuals and
organizations flock into internet cafes in the country every day to surf the Net
or do various electronic transactions.111 While a number of people go to
internet cafes to make use of email services, employment searches and
telephone calls abroad which are cheap via the net, others go to the cafes on
e-business missions. Nevertheless, the proportion in this category is relatively
small.
Only a few local websites recently began offering limited e-business services.
However these services are constrained by the lack of a national payment
system, local credit cards, and a legislative framework appropriate for e-
business. These are constraints that need to be addressed urgently. Most
significantly, the legal framework does not provide adequate safeguards to
create an environment of trust for e-business transactions to take place.
Consequently, financial institutions are not able to set up provisions for
supporting e-transactions for their own and each other‟s clients.112

110Mutagahywa, B. Kajiba, J “Connectivity and E-commerce in Tanzania”

Economic and Social Research Foundation (ESRF), Tanzania, 2000 accessed at

http://www.eldis.org/static/DOC9183.htm on September 20, 2006

111
afrol.com “Internet use Grows in Tanzania Despite of Government Policy” Accessed at
<http://www.afrol.com/News2001/tan003_internet_growth.htm> last visited on 23 November 2004
112
National ICT Policy, part 2.4.2

52
Given the fact that e-commerce has taken pace in many parts of the world
today various efforts have to be made in Tanzania to create the necessary
awareness of the potential benefits of e-commerce. Despite rapid adoptions of
Internet Technology in Tanzania, the wider application of e-commerce is still
far beyond reach in the country.
Due to legal framework and technological infrastructure limitations, the
opportunities embedded on e-commerce are far beyond reach in Tanzania
today. As far as technological infrastructure is concerned, the Tanzanian
Communication Commission has licensed only six companies to provide
public data communication services.113 From the point of view of legal
framework limitations, the rapid growth of e-commerce over the world has put
Tanzania in the position of facing challenges to various commercial laws and
other related laws. The legal system is mainly based on common law.
Regulatory steps to secure electronic transactions such as digital signatures,
reforms to contract law, dispute settlement and others have not yet been
promulgated. The basic commercial laws in Tanzania are derived from the
19th century. The laws were designed to facilitate paper-based transactions.
Despite the changes and regulatory reforms made by the country since
Independence, most of the laws enacted since British Colonial rule before the
1960s are still in force.
However there have been deliberate efforts by the Government and other
institutions to increase general e-commerce awareness and to propose legal
framework changes to favour the adoption of e-commerce.

113
These include Wilken Afsat, Datel Tanzania, Equant Tanzania, Simbanet Tanzania, Soft Tech
Tanzania, Fastcom Africa. There are presently more than thirteen licensed ISPs in Tanzania where the
more prominent are: Computer and Telecommunication Systems Ltd (CATS), Cyber Twiga, Simunet,
a wholly owned subsidiary of TTCL, Planetel Communications

53
PART TWO: THE LAW OF EVIDENCE IN TANZANIA

CHAPTER FOUR

SIGNIFICANCE OF EVIDENCE AND RULES OF AUTHENTICATION IN

LEGAL TRANSACTIONS

4.1 Introduction

The thrust of this Chapter is to explore the significance of the law of evidence
and rules of authentication in legal transactions. In this context, the Chapter
will address the meaning of evidence, functions of evidence, and various
forms of evidence as well as methods of presenting evidence in court.

Finally, the Chapter will, in a nutshell, discuss rules of authentication, the

focus being on signatures as one of the methods of authentication.

4.2 The Law of Evidence as a Branch of Procedural Law

Law may be broadly categorized under two heads, namely: substantive law
and procedural law. The substantive law defines what facts go to constitute a
right or liability. The procedural law, on the other hand is the means by which
substantive law is applied to particular cases. The law of evidence is a
procedural law.114

The fundamental principles of the law of evidence are as follows: firstly,

evidence should be confined to the matter or facts in issue; secondly, hearsay
evidence should not be admitted; and thirdly, the best evidence must be given
in all cases.115

4.3 Meaning of Evidence

As has already been pointed out elsewhere in this work, the term „evidence‟ is
derived from the Latin word, „Evidentia‟ which means „being clear‟ or „plain‟, or

114
Krishnamachari, V., Op. Cit, at p. 4
115
Ibid

54
„apparent and clear‟.116 In other words, evidence is any matter of fact, the
effect, tendency or design of which is to produce in the mind a persuasion,
affirmative or disaffirmative, of the existence of some other matter of
fact.117 The term is further defined as documentary or oral statements and the
material objects admissible as testimony in a court of law.118

The definition, which encompasses production of oral and documentary

evidence, was given by Phipson, who defines evidence as the testimony,
whether oral, documentary, or a real, which may be legally received, in order
to prove or disprove some fact in issue.

In this study, the term evidence shall mean the fact which tends to generate
proof in legal proceedings. Thus, proof of facts is central to the law of
evidence. Twining119 points out that proof is the establishment of the
existence or non-existence of some fact, factum probandum or fact in issue to
the satisfaction of a legal tribunal charged with determining the fact in issue.
The degree of satisfaction required is prescribed by the applicable standard of
proof, for example, „balance of probability‟ or „beyond reasonable doubt.‟ 120
The logic of proof is concerned with the validity, cogency and appropriateness
of arguments as the rational basis for persuasion towards making or justifying
a decision or conclusion on a question of fact.

4.4 Function of Evidence

The object of legal proceedings or litigation is the determination dependent on

facts of rights and liabilities.121 Litigation in this context refers to formal
proceedings to enforce the law or to pursue a claim in law through to a final

116
Rao, S. R., Lectures on Law of Evidence (Indian Evidence Act, 1872 as amended by Act No. 4 of
2003), Asian Law House, 2004
117
Twining, at p. 179
118
See http://www.answers.com/topic/evidence last accessed on 30/05/20005
119
William Twining, Rethinking Evidence: Exploratory Essays, Basil Blackwell, 1990, at p. 179.
120
Ibid
121
Sarkar, Op. Cit at p. 5

55
determination by a court or other legally constituted tribunal.122 It is the total
process from the formal institution of legal proceedings to a final order or act,
which makes a case res judicata.

The fundamental principles that underlie the English civil procedure are firstly,
the principle of party autonomy; secondly, the court as an umpire and the
principle of specialization of functions; thirdly, the principle of orality; and
fourthly, the principle that adjudicative decisions should be based on the
issues, the evidence and the arguments presented in open court. 123
According to the second principle, the court stands as an uninterested and
neutral umpire and the parties are expected to show, by presenting evidence,
that what they are asserting is true. This is the reason why the court itself
cannot undertake a search for relevant evidence but must reach its decision
solely on the basis of such evidence as is presented by the parties.

Based on these principles, the central purpose of adjudication is the correct

application of substantive law to facts proved to be true on the basis of
relevant evidence presented to the tribunal.124

As mentioned above, the main principle in the law of evidence is based on the
fact that only relevant evidence may be admitted or heard. The fact seeking to
prove the fact-in-issue must be relevant to a material fact or fact-in-issue.125
The fact is relevant when it tends to support or negate the fact-in-issue. The
weight depends on the strength or weakness of the support or negation.

4.5 Forms of Evidence

There are a number of types of evidence. These are, firstly, oral evidence,
which is confined to words spoken by mouth. It includes all statements which
the court permits or requires to be made before it by witnesses, in relation to

122
Twining, W., Op. Cit, at p. 179
123
Ibid, p.185
124
Basu, N., The Law of Evidence in British India, at p. 872
125
See for example Section 7 of the TEA, 1967

56
matters of fact under inquiry. They are verbal utterances of witnesses made
with a view to prove or disprove an alleged matter of fact.

The second type of evidence, direct evidence presupposes that a fact is given
by a witness, which comes to him through his own senses, or evidence from a
document or item produced before court. In other words, direct evidence is
that which an eyewitness or expert describes from his or her own first hand
observations.

The third type of evidence is circumstantial evidence, which is indirect

evidence. Evidence is circumstantial when it only rests on a greater or lesser
degree of probability. Normally, the court has to logically infer certain facts
from other proven facts. A good example is the situation where an accused
person is found with the clothes of the deceased. The inference that can be
drawn here is that the accused person has committed a murder.

A fourth type of evidence is real evidence, which is evidence of material

objects, other than documents, produced for the inspection of the court.
These include clothing, weapons, blood samples, tape recordings, film and
videocassettes. It should be noted that real evidence does not exclude oral
evidence. Real evidence is normally required to connect to oral evidence and
make it relevant.

A fifth type is hearsay evidence, which is evidence that refers to statements of

other persons who are not in court made by a witness giving evidence in
court. It suggests the existence of a better testimony. As a general rule,
hearsay evidence is not admissible unless adduced under exceptional rules
which allows admissibility of statements made in the course of business by a
person who cannot be found.

A sixth type is original evidence. This is evidence which comes from its source
without passing through any intermediate channel. A good example is where
a witness deposes to a fact within his own knowledge or where a thing or
original document is produced before the court. Original oral evidence is

57
sometimes called “immediate real evidence” and original documentary
evidence is sometimes referred to as “primary evidence”.

A seventh type is derivative evidence. This type of evidence is sometimes

referred to as original or transmitted evidence in that it is brought from its
source through an intermediate channel. The good example of this type of
evidence is where a witness offers to prove a fact on the basis of information
obtained from another person or describes the condition of a thing or contents
of a document not produced.

An eighth type is documentary evidence. This type of evidence which

occupies the main part of this study, is divided in two forms: primary and
secondary documentary evidence. Evidence of this nature is in a written form.
It refers to documents produced for the purpose of proving or disproving any
fact in court. It is primary documentary evidence when the original of the
document is presented in court, and it is secondary documentary evidence
when a copy thereto is presented in court.

4.6 Methods of Presenting Evidence in Legal Proceedings

There are three main ways of proving a fact in a court or tribunal. These are
firstly, by oral evidence; secondly, by documentary evidence; and thirdly, by
real evidence (in other words, production of things or material objects). A brief
discussion of each of these methods follows.

4.6.1 Orally

As pointed out earlier in this Chapter, the basic rule of evidence is that it must
be the oral sworn account of facts of which the witness has personal
knowledge. The witness must be available in person in court to have his
statement or her account tested by cross-examination. For this reason, oral
evidence is the main method of presenting evidence in legal proceedings. It
includes signs made by a person who in account of some illness or physical
injury is unable to speak. These include deaf and dumb persons provided that
they have sufficient understanding. The signs must however be interpreted

58
and if those who are unable to speak are literate, they may write their
evidence.

A party who appears before a tribunal to adduce oral evidence must present
primary evidence. Primary evidence in this respect is an oral account of the
original evidence.126 A good example is the statement or testimony of a
person who saw what happened and who gives an account of it to be
recorded by the court. Primary evidence is the best evidence in the eye of the
law, in that it affords the greatest certainty of the fact in issue.

4.6.2 By Production of Documents

What is a document? An English case of Grant and Another v. Southwestern

and County Properties Ltd and Another127 provides various interpretations of
the term „document‟ in the following words „A “document” is defined in the
Oxford English Dictionary as “Something written or inscribed which furnishes
evidence or information upon any subject-matter, as a manuscript, title-deed
or coin” etc., and in Osborne‟s Concise Law Dictionary,128 it is defined as
“Something on which things are written, printed or inscribed and which gives
information any written thing capable of being evidence.” In Phipson on
Evidence,129 there is a discussion on what documents are, within the meaning
of the rule of evidence: that the contents of public and judicial documents are
provable either by primary or more usually by secondary evidence. The
contents of private documents must be proved by primary evidence except in
the cases specifically mentioned as exceptions in a subsequent part of the
book.‟130

126
Sarkar, Op. Cit., at p. 1053 Sarkar, Op. Cit., at p. 1053

127
[1974] 2 All ER at 472
128
4th ed., p. 121
129
10th, ed., para 1681
130
bid

59
A party in legal proceedings before a court of law is permitted to present a
written proof on top of the verbal or oral proof. The rationale for allowing
parties to do so is based on the maxim “vox audata perit, litera scripta
manet.”131 Krishnamachari quoting Best on Evidence expounded this maxim
in the following words, “ The false relations of what never took place, and
even in the case of real transactions, the decayed memories, the imperfect
recollections, and willful misrepresentations of witnesses, added to the
certainty of the extinction sooner or later, of the primary source of evidence of
their death--all show the wisdom of proving some better or at least more
lasting mode of proof for matters which are susceptible of it, and are in
themselves of sufficient consequence to overbalance the trouble and expense
of its attainment.” 132

A party seeking to prove the contents of a document has two choices. He or

she may resort to primary or secondary evidence. However, the cardinal rule
of the Law of Evidence is that the best evidence must always be given. In this
regard, the primary evidence is the best evidence. Based on this rule, a party
to legal proceedings must produce the original; and secondary evidence is not
admissible unless the absence of the original is satisfactorily explained.133

Are photographs taken by means of mechanical device admissible? When a

person adducing oral evidence refers to a fact which he or she says he or she
saw, that person is allowed to present a photograph taken from that particular
incident. Regarding its accuracy, it is the photographer himself or any other
person with knowledge of it who must be called to prove this fact.134

Can a party to legal proceedings tender a piece of evidence in taped

records? The issue is whether a tape-recorded statement is a document to fall
within rules governing documentary evidence. The leading case in this

131
The meaning of this Latin word according to an Open-dictionary.com accessed last at
http://www.yahoo.com/ on 21/07/2005 is that “A heard voice perishes, but the written letter remains”
132
Krishnamachari, V., Law of Evidence (as Amended by 4 of 2003), at p. 277
133
Ibid, p.279
134
Ibid, p.277

60
respect is Grant and Another v. Southwestern and County Properties Ltd and
another.135 In this case it was held that “A tape recording was a document if
what was recorded was information or evidence and a tape recording of a
conversation could properly be described as documentary evidence of the
conversation.”

In India, tape-recorded statements have been admitted as primary and direct

evidence of what has been recorded provided: firstly that, the statements are
relevant to the matter in issue; secondly, that there is identification of the
voice; and thirdly, that the accuracy of the tape-recorded statement is proved
by eliminating the possibility the tape having been erased or altered.136

4.6.3 By Production of Material Objects

A party in legal proceedings is allowed to produce for inspection of the court

material objects other than documents.137 These material objects may either
be clothing and fibres, weapons, blood samples, and others of similar nature.
This type of evidence is referred to as “real evidence”. Material objects are
used to connect and make relevant evidence that has been adduced orally.
For example, in a criminal case involving an accused who is alleged to have
used a machete to harm the complainant, that machete may be produced
before the court to corroborate the oral testimony in this respect.

A very modern type of real evidence is DNA.138 The English case of R (on the
application of Marper) v Chief Constable of South Yorkshire139 underscored
the significance of this type of evidence in the following words by Lord Steyn:

135
[1974] 2 All ER at 455
136
Ibid, p.276
137
Mapunda B. T., OLW 202 Evidence Part One, p. 3
138
Deoxyribonucleic acid (DNA) is a nucleic acid that contains the genetic instructions specifying the
biological development of all cellular forms of life (and many viruses). DNA is often referred to as the
molecule of heredity, as it is responsible for the genetic propagation of most inherited traits. During
reproduction, DNA is replicated and transmitted to the offspring. Source:
http://en.wikipedia.org/wiki/DNA accessed last on 13/09/2005
139
[2004] 4 All ER at 193

61
“My Lords, it is of paramount importance that law enforcement agencies
should take full advantage of the available techniques of modern technology
and forensic science. Such real evidence has the inestimable value of
cogency and objectivity. It is in large measure not affected by the subjective
defects of other testimony. It enables the guilty to be detected and the
innocent to be rapidly eliminated from inquiries.” 140

Another piece of real evidence which is admissible is the sample of breath. In

Cross v. Cross141 the test record print-out of an automatic breath-testing
device used to ascertain the proportion of alcohol in specimens of breath is
admissible as evidence, since the print-out constitutes the product of a
mechanical device, which at common law, falls into the category of real
evidence. In The Statue of Liberty Owners of Motorship Sappord Maru v.
Owners of Steam Tanker Statue of Liberty142 it was held that the record made
by purely mechanical means and without human intervention by a radar set at
a radar station, in respect of the echoes of two ships involved in a collision at
sea, is in the nature of real evidence and is admissible in evidence in a
collision action; and the same principle will apply to other types of real
recordings.

4.7 Rules of Authentication

It is important here to examine the development of the rules of evidence

relating to signatures. Having defined the term “signature”, one needs to trace
the move from an approach based on the form to one based on the function
the signature performs.

Webster‟s English Dictionary defines signature as a person‟s name written by

himself or herself. It is stated in Stroud‟s Judicial Dictionary143 that, “Speaking
generally, a signature is the writing, or otherwise affixing, a person‟s name, or

140
Ibid
141
[1985] 1 All ER at 87
142
[1968] 2 All ER at 195
143
2nd ed, vol. 4, p 2783

62
a mark to represent his name, by himself or by his authority … with the
intention of authenticating a document as being of, or as binding on, the
person whose name or mark is so written or affixed … ”

This definition in our view, is very important because it demonstrates the

function the signature performs, namely to authenticate documents. For
purposes of clarity, it is pertinent to define the term “authenticate”.

The Macquarie Dictionary defines the term „to authenticate' as 'to make
authoritative or valid; to establish as genuine'. Further the term 'valid' is
defined in part as 'legally sound, effective, or binding; having legal force;
sustainable at law.'144 Black‟s Law Dictionary provides several definitions of
the term “authentic”. However, important to our purpose, the term means,
“genuine; true; real; pure; reliable; trustworthy; having the character and
authority of an original; dully vested with all necessary formalities and legally
attested. Competent, credible and reliable as evidence.” „Authentication” is
said to be “the act or mode of giving authority or legal authenticity to a statute,
record or other written instrument, or a certified copy thereof, so as to render it
legally admissible in evidence…An attestation made by a proper officer by
which he certifies that a record is in due form of law, and that the person who
certifies it is the officer appointed so to do. Acts done with a view of causing
an instrument to be known and identified.”145

The above definitions from various sources demonstrate, in the author‟s view,
the main key function of authentication, which is to certify that a record is real,
genuine, trustworthy and original and that it may be relied in evidence in the
court of law. The word “record” is significant in this study because it will be
proposed later in this study that the same be used in the place of the word
“document”. From this discussion, it is now apparent that signature is one of
the methods of authenticating documents.

144
Websters Dictionary defines 'valid' in similar terms as does the Oxford dictionary.
145
Leaderman and Ron Shapira, Op. Cit at p. 378

63
Black‟s Law Dictionary146 also defines the term signature as “the act of putting
one‟s name at the end of an instrument to attest the validity; the name thus
written.

A signature may be written by hand, printed, stamped, typewritten, engraved,

photographed, or cut from one instrument and attached to another, and a
signature lithographed on an instrument by a party is sufficient for the purpose
of signing it; it being immaterial with what kind of instrument a signature is
made. And whatever mark, symbol, or device one may choose to employ as
representative of himself is sufficient.” On the purpose of signature in
commercial transactions, Black‟s Law Dictionary further states, “in commercial
law, any name, word, or mark used with intention to authenticate a writing
constitutes a signature.”

A judicial definition of a signature was given in the case of R v. Moore, Ex

Parte Myers147 where Higginbotham made the following comment: 'It was
observed by Patterson J., in Lobb v Stanley, that the object of all Statutes
which require a particular document to be signed by a particular person is to
authenticate the genuineness of the document. A signature is only a mark,
and where a Statute merely requires a document shall be signed, the Statute
is satisfied by proof of the making of the mark upon the document by or by the
authority of the signatory. ... In like manner, where the Statute does not
require that the signature shall be an autograph, the printed name of the party
who is required to sign the document is enough,... ; or the signature may be
impressed upon the document by a stamp engraved with a facsimile of the
ordinary signature of the person signing ... . But proof in these cases must be
given that the name printed on the stamp was affixed by the person signing,
or that such signature has been recognised and brought home to him as
having been done by his authority so as to appropriate it to the particular
instrument'.148

146
Black’s Law Dictionary at p. 963
147
(1884) 10 VLR 322
148
Ibid

64
This case149 dealt with a pawn-broker's pledge ticket that was not signed by
the pawn-broker in accordance with the relevant legislation but was signed by
an authorised agent even though the name of the pawn-broker was printed on
the pledge ticket.

The definition in the case of R v. Moore, Ex Parte Myers150 and Webster‟s

Dictionary is adopted in this study. However, the ideal proposed definition is
that a signature is an act of writing, processing, encrypting, logically
associating or affixing a person‟s name, initials, symbol, sound or data on a
document or record by hand, typing, printing or by using any other device for
marking, stamping, scanning, photographing, or processing for purposes of
authenticating such document or record.

This definition demonstrates the manner of affixing a signature as well as the

function of the signature, namely to authenticate the genuineness of the
document or record. As will be argued in this book, electronic signatures will
as well be capable of performing this function. Moreover, the intention of
having terms like “record”, “data”, “encrypt”, “process”, “sound”, and
“associate” in the definition is to encompass electronic or digital
signatures. The effect would be that, once a statute requires a signature, this
requirement would be met if an electronic or digital signature is used.

The more modern judicial approach to the validity of signatures concentrates

on the function rather than the form of a signature.151 This line of authority can
be traced back over 150 years, and it now represents the standard judicial
test for validity.152 Under these cases a signature will be valid, irrespective of
the form it takes, if it performs the functions which the law requires of a
signature.153

149
Ibid
150
Ibid
151
Reed, C. Op. Cit
152
Ibid
153
Ibid

65
These cases suggest that the primary function of signatures is for
authentication purposes. In other words, the function of signatures is primarily
evidential. The leading case in this position is Goodman v. J. Eban Ltd supra,
where it was stated that the validity of a particular signature method is found
by referring to the function it performs. The signature will thus be valid if it
provides evidence of authentication of the document by the signatory. Any
signature method must be able to evidence the identity of signatory, intention
to sign and intention to adopt the document.

The question before us is whether electronic signatures can achieve these

functions. Chapter Six of this work will endeavour to address this issue.

4.8 Conclusion

This Chapter was aimed at highlighting the significance of evidence and rules
of authentication in legal transactions. It has been observed that the purpose
of any litigation is to determine the rights and liabilities of parties. The court
thus has a duty of applying rules of evidence and authentication to sift facts
presented to it before it arrives at a conclusion. In this respect, the rules of
evidence determine which fact is relevant and thus admissible in court.

It is the argument of the authors that, while in paper-based transactions hand-

written signatures serve as a means of authentication, in an electronic
environment, modern methods of authentication of documents by digital
signature, should be admissible. Chapters Five and Six of this book contain a
detailed discussion in this respect. But before embarking on a detailed
analysis of such technical arguments, the overview of the law of evidence in
Tanzania must be done first. This task is done in the next chapter.

66
 CHAPTER FIVE

THE TANZANIA EVIDENCE ACT, 1967

5.1 Introduction

The aim of this Chapter is to examine the Tanzania Evidence Act (TEA) with a
view to identifying principles governing admissibility of evidence in Tanzania.
The Chapter will briefly highlight major features of the TEA, identify forms and
methods of presenting evidence under the TEA and finally discuss the rules of
authentication.

5.2 Definition of the Term „Evidence‟ under the Tanzania Evidence

Act, 1967 (TEA)

The TEA provides for rules of evidence for courts in the Tanzania Mainland
except for primary courts. It defines the term „evidence‟ to denote “the means
by which an alleged matter of fact, the truth of which if submitted to
investigation, is proved or disproved; and without prejudice to the proceeding
generality, includes statements and admissions by accused persons”154

The term „means‟ used in the above definition is defined by the Oxford
Advanced Learners‟ Dictionary155 as an action by which a result is brought
about or a method(s). In other words, therefore, evidence is a method used to
present facts in court for the aim of either proving or disproving an alleged
matter.

5.3 An Overview of the Evidence Act, 1967

154
Section 3 of the Evidence Act, 1967
155
Hornby, A. S., Oxford Advanced Learner’s Dictionary of Current English, Fourth Edition, Oxford
University Press, 1989 at p. 772

67
The Act has a total of 180 sections, which are divided, in three main parts.
Sections 7 to 57 forms Part One and it covers generally on relevancy of facts.
Part Two comprises sections 4 to 6 and 58 to 126, which deals with
production, proof and effect of evidence. The last is Part Three, which is
composed of sections 127 to 180, which provides for witnesses.

5.4 Relevance and Admissibility of Evidence under TEA

On relevancy of facts, the TEA provides that, a fact is relevant when it is so

connected with the other in any of the ways referred to in the provisions of the
Evidence Act relating to the relevancy of facts.156 In other words, the fact is
only relevant if it is so linked to another in the ways provided in the Act.

The general rule on admissibility is covered under section 7 of the TEA. The
purpose of this section is to the effect that no other evidence is admissible
which is not covered under this Act. However, it is correctly observed that the
decision on admissibility of a certain piece of evidence rests on the court,
which at the end determines whether the same is relevant to a matter before
it, hence admissible to prove the fact in issue.

To this end, the TEA provides for oral as well as documentary evidence. It
also provides for authentication of documents. The next sections will provide a
detailed discussion in this respect.

5.5 Forms and Methods of Presenting Evidence Recognized under TEA

5.5.1 Oral Evidence

Section 61 of TEA provides that “all facts, except the contents of documents,
may be proved by oral evidence.” The analysis of this provision reveals that
oral evidence must be the (sworn) oral account of facts of which the witness
has personal knowledge. The witness has therefore to be available in person
in court to have his or her account tested by cross-examination. In this
respect, Section 62 (2) of TEA provides that “oral evidence must, in all cases

156
Section 3

68
whatever, be direct; that is to says (a) if it relates to a fact which could be
seen, it must be the evidence of a witness who says he saw it; (b) if it refers to
a fact which could be heard, it must be the evidence of a witness who says he
heard it; (c) if it refers to a fact which could be perceived by any other sense,
or in any other manner, it must be the evidence of a witness who says he
perceived it by that sense or in that manner and (d) if it refers to an opinion or
to the grounds on which that opinion is held, it must be the evidence of the
person who holds that opinion or, as the case may be, who holds it on those
grounds.” It is this rule of evidence that forbids hearsay evidence.

5.5.2 Documentary Evidence

5.5.2.1 Business Records , Bankers Books and Books of Accounts

The Evidence Act provides for admissibility of a variety of records. These are
records made in the course of business, public records, books of accounts
and banker‟s books. Business records are admissible under Section 34 (b)
which provides for admissibility of statements whether written or oral made in
the ordinary course of business by a person who cannot be found by reason
of either death, diplomatic immunity, refusal to testify, or the exorbitant
expenses of procuring him. According to this section, the statements made in
this manner must consist of “an entry or memorandum made by him in books
or records kept in the ordinary course of business or the discharge of
professional duty, or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or properties of any kind, or of the date of
a letter or other documents usually dated, written or signed by him;” This is an
exception to the hearsay rule.

Case law may assist in clarifying this provision. In Yahaya Hussein v. Ohan
Transport Ltd and Another,157 the Court of Appeal (as per Nyalali C. J., as he
then was), declined to admit a post-mortem report prepared by the doctor on
request by the counsel for the plaintiff for the reason that the record (Post-
mortem Report) was not made in the ordinary course of business.

157
[1980] TLR 59

69
The above case is significant in that it construed Section 34 (b) of the TEA as
follows: “It seems to me quite clear that paragraph (b) deals with four kinds of
statements. Firstly, statements made in the ordinary course of business;
secondly, written acknowledgments for receipts of money, goods, securities or
other property; thirdly, commercial documents, and fourthly and lastly, dates
in letters or documents which are usually dated.”158 It was further observed in
this case that statements made in the ordinary course of business are
particularized as an entry or memorandum in books or records kept in the
ordinary course of business or kept in the discharge of professional duty. The
issue is whether electronic records can be admissible as records kept in the
ordinary course of business. The following section endeavours to address this
issue.

Commercial documents mentioned in the above case would include entries in

books of account and banker‟s books. Section 36 provides for entries in books
of account. It states that “entries in books of account, regularly kept in the
course of business, are relevant whenever they refer to a matter into which
the court has to inquire, but such statement shall not alone be sufficient
evidence to charge any person with liability.” Section 37 provides for
relevancy of public records. It states that “any public or other official book,
register or record, stating a fact in issue or relevant fact, and made by a public
servant in the discharge of his official duty or by any other person in
performance of a duty specially enjoined by the law of the country in which
such book, register or record is kept, is itself a relevant fact”

Sections 76 – 82 govern admissibility of banker‟s books. Section 77 provides

for mode of proof of entries in banker‟s books. Under this section, proof of
entry in a banker‟s book is made by presentation of a copy of any entry in
such book and this shall be a prima facie evidence of such entry and of the
matters, transactions and accounts therein recorded.

Section 81 provides for inspection of a banker‟s book by a court upon a

request of any party to legal proceedings. Section 78 provides for safeguards

158
Ibid

70
governing admissibility of banker‟s book. These are proofs (1) that the book
was at the time of the making of the entry one of the ordinary books of the
bank, (2) that the entry was made in the usual and ordinary course of
business, and (3), that the book must be in the custody or control of the bank.

The proof in this respect according to Section 78 may be given by a partner or

an officer of the bank either orally or by affidavit sworn before any
commissioner for oaths or a person authorised to take affidavits.

5.5.2.2 Satisfaction of the Best Evidence Rule under TEA

The best evidence rule is embodied under section 66 of the Evidence Act,
1967 which provides that documents must be proved by primary evidence.
The Act defines primary evidence as the document itself produced for the
inspection of the court.159 Krishnamachari clarifies that primary evidence is
the evidence, which the law requires to be given first.160 The law requiring the
production of primary evidence of a disputed document is in accordance with
the Best Evidence Rule.161 This document must be the „document itself‟. In
other words, the document itself is the original. This position was restated in
Shirin Rajabali Jessa v. Alipio Zorilla162 where Onyiuke J. held: “A document
must be proved by primary evidence by producing the document itself for the
inspection of the court, and by secondary evidence when it falls under the
categories of s. 67 [of the] Tanzania [sic] Evidence Act, 1967.”

Under sections 67 and 68, secondary evidence may be admitted in court

where the original cannot be found. It is so stated under s. 67 (1) that
“secondary evidence may be given of the existence, condition or contents of a
document in the following cases: (a) when the original is shown or appears to
be in the possession or power of (i) the person against whom the document is

159
See section 64 (1) of the Act. For other definitions see 32A C.S.J. s.776, Lukas v. Williams & Sons
(1892) 2Q.B. 113 at p. 116 per Lord Esher MR
160
Krishnamachari, Op. Cit., at p. 279
161
Ibid
162
[1973] LRT No. 84

71
sought to be proved; or (ii) a person out of reach of, or not subject to, the
process of the court; or (ii) a person legally bound to produce it, and when,
after the notice specified in section 68, such person does not produce it;”

Section 68 provides that “secondary evidence of the contents of the

documents referred to in paragraph (a) of subsection (1) of section 67 shall
not be given unless the party proposing to give such secondary evidence has
previously given to the party in whose possession or power the document is,
or to his advocate, such notice to produce it as is prescribed by law; and if no
notice is prescribed by law, then such notice as a court considers reasonable
in the circumstance, of the case:” By secondary evidence it is meant, the
evidence which may be given under certain circumstances in the absence of
the better evidence, viz., primary evidence.163

5.5.3 Real Evidence

Under Evidence Act of 1967 a party is allowed to present material objects in

court. However, this type of evidence is in most cases applicable to criminal
cases where the prosecution may tender in court material objects like clothes
and fibres, blood samples, weapons and other materials of similar nature. For
instance in Jeremia Shemweta v. Republic,164 the appellant gave
an explanation as to how an electric motor which, incidentally, was tendered
and admitted as real evidence at the trial and marked Ex "A" came to be in his
house.165

5.6 Rules of Authentication

To be admissible, evidence must be relevant to an issue that is in dispute. For

evidence to be relevant it must be authentic; that is, there must be proof of its
source. A general rule of evidence is that the party seeking to introduce
evidence must provide some evidence of authenticity before it becomes

163
Krishnamachari., Op. Cit., at p. 282
164
[1985] TLR 228 (HC)
165
Ibid

72
admissible. In most cases, the dispute is over the meaning of the contents of
the message, so authentication is not an issue.

Parties may enter a verbal agreement for the sale and purchase of
property.166 However, with passage of time, memory of what was agreed upon
may fade and both parties will at some stage die. The land goes on forever
and either the parties or their successors may at some time have to determine
just what was agreed upon. It is these problems which have caused the law to
require some agreements to be reduced to written form and authenticated by
the signature of the party or parties responsible for the creation of
documents.167

Section 68 of the TEA provides for proof of signature and handwriting of

persons alleged to have signed or written documents produced. It states, “If a
document is alleged to be signed or to have been written wholly or in part by
any person, the signature or the handwriting of so much of the document as is
alleged to be in that person‟s handwriting must be proved to be in his
handwriting.”168

The word “sign” is defined under the Interpretation of Laws Act 169 as follows:
“sign,” with its grammatical variations and cognate expressions, includes with
reference to a person who is unable to write his name, “mark”, with its
grammatical variations and cognate expressions”. This definition leaves much
to be desired. In the first place, it defines the term “sign” in respect of a person
who is not able to write, leaving out those who can write. It is not clear
whether a person who is able to write is covered under this definition.
Secondly, the Act does not define the term “signature”.

However, the analysis of the above statutes together with many others which
provide for writing and signature, is that transactions must be authenticated by

166
Lloyd, I. J. Information Technology, 3rd ed. Butterworths p. 571
167
Ibid
168
Section 68 of the Tanzania Evidence Act, 1967
169
Section 4 of the Interpretation of Laws Act, CAP 1 R. E. 2002

73
affixing a personal signature on a piece of paper. The reason is that a “mark,”
as stated earlier in this study, has to be placed on something tangible: in this
case, a piece of paper. Thus, in the eyes of an ordinary person this requires
ink on paper that result in producing something visible and that which alters
the thing marked. It is doubtful whether electronic signatures can meet the
requirement of a manuscript signature.

5.7 Conclusion

This Chapter was aimed at exploring the TEA with the view to identifying
types and methods of presenting evidence in court or tribunal. It also
discussed signature as one of the methods of authentication of documents.
The analysis above reveals that even before the amendment of the TEA to
accommodate new methods of presentation of evidence, courts have not
remained silent on technological advancement. They have been ready to
extend some principles of the law of evidence to accommodate changes in
the technology. A good example is Tanzania Cotton Marketing Board v.
Corgecot Cotton Company SA170 the Court of Appeal stated as follows:“ While
it is an undisputed fact that under Rule 4 of the Arbitration Rules, 1957, the
award is to be forwarded to the Registrar of the High Court by registered post,
the words „registered post‟ should be interpreted widely enough to take into
account the current development in communication technology that has taken
place….”171 The court thus went on to extend the definition of „registered post‟
to include postage by DHL.172

Applying the same spirit, it is argued here that this is an opportune moment;
the court is invited to hold that “current development in communication
technology” includes the Internet and Email, in which case an award, decrees,
pleadings, agreements and other legal documents may be communicated
through the mentioned media.

170
[1997] TLR 165
171
Ibid
172
DHL is an acronym for Dalsey, Hillblom and Lynn, founders of DHL World Express. Source:
http://www.acronymfinder.com/afquery.asp?p=dict&String=exact&Acronym=DHL

74
In 2000, the Commercial Division of the High Court applied the reasoning
above in Trust Bank Tanzania Ltd v. Le Marsh Enterprises Ltd and
Others,173 Nsekela J. (as he then was), underscoring the need for the
Judiciary to be ready to adopt changes caused by technological revolution
engulfing the world, proceeded to extend the definition of banker‟s books to
include evidence emanating from computers subject to the same safeguards
applicable to other banker‟s books under section 78 and 79 of TEA.

It is argued in this study that the courts should apply the same line of
argument to accommodate electronic evidence and modern rules of
authentication by use of electronic signatures under rules of evidence in
Tanzania. Having addressed the Impact of ICT on the TEA 1967 in Chapter
Six, Chapter Seven will examine the legal framework for admissibility of
electronic evidence by looking at the steps taken by various jurisdictions to
accommodate electronic evidence in their legal systems.

173
H.C., (Com.Div.) at DSM, C.C. No. 4 of 2000, (unreported)

75
PART THREE: THE IMPACT OF ICT ON THE RULES OF EVIDENCE IN

TANZANIA

CHAPTER SIX

THE IMPACT OF INFORMATION AND COMMUNICATION TECHNOLOGY

ON THE EVIDENCE ACT, 1967

6.1 Introduction

The thrust of this Chapter is to assess the impact of advancement of ICT on

admissibility of documentary evidence as well as rules of authentication as
provided for the under the TEA, 1967. On the rules of authentication, this
Chapter will focus on electronic signatures. It will examine electronic signature
technologies from the point of view of assessing the impact of the same with
respect to the ordinary paper-based signatures and how electronic signature
technologies are capable of meeting the requirement of the law of evidence
and thus creating legally binding signatures.

The main issue will be whether computer evidence and electronic signatures
are admissible in court proceedings in Tanzania under the current TEA. It will
be concluded in the final analysis that, provided a signature technology
produces signatures that meet the functional requirement similar to paper-
based or manuscript signatures, an electronic signature produced thereby
should be treated as legally valid under the law of evidence of Tanzania. On
electronic documents, it will be argued that the principles governing
admissibility of paper-based documents be extended to cover documents in
electronic form.

6.2 Definition of “Evidence”

The definition which encompasses production of oral and documentary

evidence was given by Phipson, who defined evidence as the testimony,
whether oral, documentary, or real, which may be legally received, in order to
prove or disprove some fact in issue. From the above definitions, there are

76
various methods or kinds of evidence, few of which are oral evidence,
documentary evidence, circumstantial evidence, and real evidence and
hearsay evidence. The authors of this work would add electronic evidence to
the list.

The analysis of the above definition is that the definition of the term „evidence‟
does not envisage evidence in electronic form. Before examining the impact
of ICT on rules of evidence, it is pertinent to address the nature of electronic
evidence, including electronic signatures.

6.2.1 Meaning and Scope of Electronic Evidence

This section is aimed at addressing the meaning and the manner in which
electronic evidence is generated. The section will as well examine the nature
and challenges facing electronic evidence. The section will end up with a
discussion on the impact of ICT on electronic evidence under the TEA.

Electronic evidence is information that is recorded electronically. It is argued

that this kind of evidence is a version of documentary evidence.174 It may be
created electronically or simply stored electronically. The information of this
nature may be any record, document, database, spreadsheets,
communication, transaction and printout.175

At one stage it may be on paper as a print out and at other stages in

electronic form. It may exist in one place, for example when a record is
created using a stand-alone computer, and it may as well exist in two places,
for instance, when information is sent through networked computers.176 A
good example of such a network is Local Area Network (LAN), Wide Area
Network (WAN), or International Network (Internet).

174
Uniform Law Conference of Canada, Op. Cit.
175
Electronic Evidence: A Gold Mine Waiting to be Explored, an article Gross, J.R., accessed at
http://www.willyancey.com/electronic_evidence.htm#Litigation on 08/07/2007
176
Uniform Law Conference of Canada, Op. Cit.

77
6.2.2 How is an Electronic Evidence Created?

Before examining the nature of electronic evidence, it is pertinent to have a

brief discussion on how electronic evidence is created. A number of methods
are applied in creating electronic evidence. The first is by entering data or a
record into the computer. The computer by its internal mechanism processes
the data and produces some information. The second method is by typing
words using a computer word processor. This method produces a typed
document that may either be saved on a computer disk or sent to a recipient
whose computer is linked with that of the sender. A third method is by
automatic mechanical operations of the computer.

In the first method, computer software may process data entered into the
computer by reorganising, comparing, evaluating, re-grouping or selectively
retrieving the relevant information. The good example is when a telephone
company compiles raw data into a phone bill for a certain subscriber and a bill
is produced. The bill may be literally a statement that may read as follows:
“The following long distance calls were placed from your phone to these
numbers on these days and times”.

In the above example, the computer adds new information in the process of
turning raw evidence into processed evidence. It is argued that this kind of
evidence is hearsay because the processed information is partly a result of
raw data that is entered into the computer by human beings. As a general rule
of evidence, hearsay evidence is not admissible. The rationale behind
hearsay evidence is that human beings can easily forget a fact which came to
their knowledge by being narrated to them by other human beings.

The second method of creating electronic evidence is by imaging a word

document or photograph using a scanner. The electronic imaging captures
the exact document or photograph onto optical or magnetic disk. The former
method, which is however still similar to imaging is microfilming. It is pointed

78
out that, imaging by use of scanners is quickly replacing microfilming
technology.177

The fourth method of getting data into the computer is by creating

programmes that automatically record transactions taking place without
human involvement. In the first method discussed above, a human being gets
data related to a certain customer‟s telephone bills into a computer. In an
automatic transaction, a computer is programmed to record automatically
telephone calls made by a certain customer. In this respect, a computer
programme is instructed to record the airtime taken by a customer when
making a call. The computer programme should also be able to identify short
and long calls.

Another good example of automatic generated evidence is Automatic Teller

Machines (ATMs). These machines are connected to a computer that is
programmed to accept deposits of cash and withdrawals. Thus, a computer
would create a record that a certain customer with a certain account has
withdrawn a certain amount of money at a certain date and time.

In the event a dispute arises from such transaction, the records that the
computer automatically created are likely to be tendered in evidence. For
instance in R. v. Masquid Ali178 it was asserted that “the law is bound these
days to take cognizance of the fact that mechanical means replace human
effort”.179 In this spirit, the automatic records created by a radar showing the
location of two ships which were involved in a collision was admitted as real
evidence based on the reason that the records were made a mechanical
device without human intervention.180

In relation to computer evidence, Chissick quoting Professor Smith in an

article on computer evidence pointed out “where information is recorded by

177
Uniform Law Conference of Canada
178
[1966] 1 Q. B. 688
179
Ibid
180
The Statue of Liberty [1968] 1 W. L. R. 739

79
mechanical means without the intervention of a human mind, the record made
by the machine is admissible in evidence, provided of course, it is accepted
that the machine is reliable.”181 This statement was cited and approved in R.
v. Spiby.182 In this case, the prosecution, in a case involving an appellant who
was convicted for unlawful importation of cannabis, relied upon telephone
print-outs from the hotel‟s computer to prove that a particular guest at that
hotel had called the appellant at his home. The court of Criminal Appeal held
that the print-outs were real evidence since the computer had automatically
logged the lifting of the phone receiver and the making of the call.

Based on the English Legal system experience, it is submitted in this

publication that electronic evidence created by computers automatically
without intervention of human minds should be admissible as real evidence
and it should not in any way be treated as hearsay. The reason is that, for a
statement to be hearsay, it must be made by human being. Computers that
operate properly are reliable; hence, records created in this manner should as
well be regarded as reliable and trustworthy. Chissick 183 puts it correctly, to
my view, that computers would be useless if they were not able to record
information with a fair degree of reliability.

6.2.3 The Nature of Electronic Evidence

Different from paper-based documents, which are visible and tangible, much
of electronic evidence cannot be seen with naked eye. It takes a number of
technological steps for an electronic evidence to be obtained. It tends to be
hidden among immense data files. This evidence is measured by kilobytes,
megabytes, gigabytes and terabytes. Thus, in the electronic or digital world,
the information is divided into two parts. The binary strings of 0s and 1s that
make up the genetic code of data allow information to be fruitful and multiply,

181
Chissick., Op. Cit., at p. 172
182
[1990] 91 Cr App R 186 cited in R. v. Shepherd [1993] 1 All ER, 332
183
Ibid, p.179

80
and also allow people to create, manipulate, and share data. 184 In the event
one sends this information to another person using computers, the information
is transmitted through many phases. First, the sender creates it. Then the
information to be communicated is broken down into small packets that
contain some portion of the contents of the communication as well as the
sender‟s and the recipient‟s Internet Protocol addresses and some accounting
information. The packets are individually transmitted from the sender‟s
computer to a nearby packet switch and then forwarded to the next available
switch in the direction of their ultimate destination. Different packets may take
different routes through the network as they travel from sender to recipient,
depending on link availability and loading in the network. Upon receipt, the
packets are reassembled into an exact replica of the original file. Thus,
information passes through several stages of disassembly, storing and
forwarding and reassembly, before becoming available to the recipient. The
recipient may store the file for future reference for some period before deleting
it.185 The issue is how to ensure trustworthiness, reliability, integrity and
security of electronic evidence. It is argued that since digital evidence usually
takes the form of a writing, or at least a form which can be analogized to a
writing, it must be authenticated and satisfy the requirements of the best
evidence rule.186

6.3 Challenges Associated to Electronic Evidence

The problem with electronic evidence lies in the very temporary nature of
digital data. It is very easy to view, copy, modify or destroy a digital record; be
it a number, document or image. Although digital technology permits perfect
reproduction and easy dissemination of print, graphics, sound, and multimedia
combinations,187 the combination of a high percentage of fraud with employee

184
Smith, A., Why Digitize? An Article accessed at http://www.irmt.org/evidence/wbediscussion.html.
last accessed on 27 July,2005
185
Ryan D. J., & Shpantzer, G., “Legal Aspects of Digital Forensics”, The George Washington
University, Washington, D. C
186
Ibid
187
http://www.tribuneindia.com/2002/20020218/login/main4.htm last accessed on 27 July, 2005

81
involvement and the possibility that raw data can be modified by an individual
with immediate access to the system means that any evidence collected from
the system has a questionable and unverifiable level of integrity. 188

As pointed out above, the best evidence rule is applied to ensure reliability,
that is to say integrity, of the document or record. The issue is whether the
same rule can apply to electronic evidence. The next section will endeavour to
address this issue.

6.4 The Impact on Documentary Evidence

Earlier in this work, the authors briefly discussed the best evidence rule under
the TEA. As observed, the rule requires production of an original of the
document for examination by the court. The Act defines primary evidence as
the document itself, produced for the inspection of the court.189 According to
this rule, the document itself is the original.

The issue in an electronic environment is whether an electronic document

which may never take a physical form should be considered to be in a written
form as required by the law as discussed above. The field survey revealed
that 66% of lawyers, including judges and magistrates, have ideas on the
impact of ICT on the rules of evidence. Forty-Four pointed out documentary
evidence as the main area so affected. The impact is reflected in the following
questions: Can the document in an electronic form be retained permanently
for it to qualify within the definition of the term „writing‟ in the Statute of
Interpretation discussed above? Though an electronic document may be
retained permanently, in its plain definition, it cannot qualify to be a thing in
writing. This is because a document in an electronic form consists in series of

188
Meherry, M., The Problem with Electronic Evidence, accessed at
http://estrategy.co.za/news.asp?pklNewsID=9637&pklIssueID=308&pklCategoryID=145 on
28/06/2005
189
See section 64 (1) of the Act. For other definitions see 32A C.S.J. s.776, Lukas v. Williams & Sons
(1892) 2Q.B. 113 at p. 116 per Lord Esher MR

82
numbers stored in the computer‟s memory.190 What is displayed on the screen
is a translation of the numbers by the computer, after application of a coding
convention, into a form of words for the reader.191

Under the Evidence Act,192 therefore, the definition of the term „document‟
entails existence of elements of physicality, visibility by sight and permanence
of the record. In all senses, this excludes electronic records and
documents.193

Until very recently, the position of the law of evidence in Tanzania in respect
of admissibility of records in electronic form was that such records were not
admissible as evidence in court proceedings. The issue is whether, in the
absence of any statutory provision, the principles set in Trust Bank Case194
could be applied to this form of evidence or records. It is doubtful whether
either under case law or statutory law a party may produce a floppy disk or
compact disk or a computer hard disk to prove the contents of records
resident therein. The reason, as pointed above, is that records resident in the
items above are not visible unless displayed on a computer screen or as a
computer- printout.

6.5 Electronic Signatures

The evolution of electronic commerce has brought with it new methods of

authentication of electronic documents. Electronic signature is the main
method of authenticating an electronic document or record. The following
section will discuss the meaning, nature and technologies applicable for
creating electronic signatures. The issue that being addressed here is
whether electronic signatures can perform the same function which a

190
Christensen., Op. Cit, at p. 13
191
Ibid
192
Ibid
193
Section 2 of the Tanzania Evidence Act, 1967
194
See supra note 167

83
manuscript signature performs. The rationale is that, as pointed out earlier in
this study, such manuscript signatures work well for paper-based
transactions. The section will as well examine the impact of ICT on electronic
signatures.

An electronic signature is defined as “an electronic symbol or process logically

associated with an electronic record and executed by a person with the intent
and full knowledge that the electronic signature constitutes a valid certification
of the electronic record”.195

Another source defines an electronic signature as “an electronic sound,

symbol or process, attached to or logically associated with a contract or other
record and executed or adopted by a person with the intent to sign the
record.”196 It is also “data in electronic form that is attached to or logically
associated with other electronic data and which serves as a method of
authentication”.

An electronic signature is also defined as “an electronic symbol or process

logically associated with an electronic record and executed by a person with
the intent and full knowledge that the electronic signature constitutes a valid
certification of the electronic record.”197

An analysis of the definitions shows that, firstly, electronic signature can

consist of any electronic data, a symbol, a code, a mark or a sound logically
attached or associated with electronic data. The attachment or association is
logical because, as is the case with digital technology, electronic signature
may sometimes take a form which is invisible to a human eye. Secondly,
that an electronic signature similar to a traditional signature is capable of
performing two functions; namely, it identifies and authenticates a particular
person as the source of the electronic message and indicates such person‟s
approval of the information contained in the electronic message. Indeed, the

195
Source: www.scc-assessor.org/dictionary_of_terms.html accessed on 23/02/2005
196
Source: www.nela.net/Parents/loeleglo.htm accessed on 23/02/2005
197
Source www.scc-assessor.org/dictionary_of_terms.html accessed on 23/02/2005

84
proposed new definition of signature in this study would encompass any
electronic or digital signature. The difference between electronic and digital
signatures will be addressed later in this book.

6.6 Technologies Employed in Creating Electronic Signatures

There are a number of methods of signing electronic documents. For

example, the use of scanning equipment to create a digital image for a
person‟s signature, for instance, so that this image is reproduced at the end of
a word-processed letter.198 It can as well be anything attached to or
associated with electronic data, which is able to serve as a method of
identification.

In other words electronic signature is a generic, technology-neutral term that

refers to the universe of all of the various methods by which one can "sign" an
electronic record. Although all electronic signatures are represented digitally
(i.e., as a series of ones and zeroes), they can take many forms and can be
created by many different technologies.199

Examples of electronic signatures include a name typed at the end of an e-

mail message by the sender; a digitized image of a handwritten signature that
is attached to an electronic document, sometimes created via a biometrics-
based technology called signature dynamics secret code or Person
Identification Number (PIN), such as that used with Automatic Teller Machine
(ATM) cards and credit cards, to identify the sender to the recipient; a code or
"handle" that the sender of a message uses to identify himself; a unique
biometrics-based identifier, such as a fingerprint or a retinal scan; and a digital
signature.200

Another simple method shows a name and details in an electronic contract on

a website, and then the user clicks an “I Agree” icon. More complex methods

198
Ibid
199
Semidinghoff., Op. Cit
200
Reed C., Op. Cit

85
of electronic signature are achieved by way of using cryptography
technology.201

A more secure electronic signature is produced by performing a mathematical

function on the document, or part of it, which identifies the signatory and
authenticates the contents of the document. To be an effective signature, the
modified document must be producible only by the maker, and any attempt to
change the content of the document must invalidate the signature.202

Classified electronic signature produces the more complex methods of

electronic signatures. This kind of electronic signature is commonly referred to
as a digital signature. Digital signatures use what is known as public key
cryptography, which employs an algorithm using two different but
mathematically related keys, one for creating a digital signature and another
key for verifying a digital signature.203

For example, Bob has been given two keys. One of Bob's keys is called a
Public Key, the other is called a Private Key. Bob's Public key is available to
anyone who needs it, but he keeps his Private Key to himself. Keys are used
to encrypt information. Encrypting information means "scrambling it up" so
that only a person with the appropriate key can make it readable again.

Either one of Bob's two keys can encrypt data, and the other key can decrypt
that data.

Consider this message Susan sends to Bob: “Hey Bob, how about lunch at
Taco Bell. I hear they have free refills!" With a public key, Susan encrypts this
message. The encrypted message would appear like this: “HNFmsEm6Un
BejhhyCGKOK JUxhiygSBCEiC 0QYIh/Hn3xgiK BcyLK1UcYiY

201
Ibid
202
Ibid
203
Zekos G. I., ePen Technology and Electronic Signatures, Intellectual Property & Information
Technology Law, Vol. 8, Isuse 6, Dec. 31, 2003 at p. 2

86
lxx2lCFHDC/A”. Bob gets the message in an unintelligible form as it appears
above. With a private key Bob decrypts the message. The decrypted
message would appear as follows: “"Hey Bob, how about lunch at Taco Bell. I
hear they have free refills!” As can be noted, the decrypted message appears
in the form Susan sent before she encrypts with a public key. Thus, any of
Bob's coworkers might have access to the message Susan encrypted, but
without Bob's Private Key, the data is worthless.

Therefore, in order for a digital signature to qualify as such, it must meet the
following conditions. First, it should be unique to the subscriber affixing it.
Second, it should be capable of identifying such subscriber. Third, it should be
created in a particular manner using a means under the exclusive control of
the subscriber. Fourth, it should be linked to the electronic record to which it
relates in such a manner that if the record were altered, the digital signature
would be invalidated.204

This discussion of electronic signature technologies demonstrates that

electronic signatures are actually harder to forge than manuscript signatures.
Sulner205 contends that identification of a piece of handwriting is not as simple
as it may seem to be. It requires professional skills of comparing the
handwriting. The only function which electronic signatures cannot provide is
that of making a visible mark on a document. Its mark is in digital form.
However, it is correctly contended that a signature, whether electronic or on
paper, is first and foremost a symbol that signifies intent . The primary focus is
on the "intention to authenticate," which distinguishes a signature.206

6.7 Electronic Signatures: Meeting the law's Functional Requirements

As explained above, to be valid and effective, a signature must provide

evidence of three things: the identity of the signatory, his intention to sign and
his intention to adopt the contents of the document as his own.

204
Ibid
205
Sulner, H. F., Op. Cit. at p. 10

87
Manuscript signatures meet these functional requirements in a number of
ways. Identity is established by comparing the signature on the document with
other signatures, which can be proved, by extrinsic evidence, to have been
written by the signatory. The assumption is that manuscript signatures are
unique, and that therefore such a comparison is all that is necessary to
provide evidence of identity. In practice, manuscript signatures are usually
acknowledged by the signatory once they are shown to him, and extrinsic
evidence is only required where it is alleged that the signature has been
forged.

Intention to sign is normally presumed, because the act of affixing a

manuscript signature to a document is universally recognized as signing. 207
Intention to adopt the contents of the document is similarly presumed because
it is general knowledge that affixing a manuscript signature to a document has
that effect. In both cases, the burden of displacing the presumption is on the
signatory.208

Electronic signatures can equally meet the law's functional requirements, but
in rather different ways. To begin with, the signature itself does not provide
sufficient evidence of the signatory's identity. To establish this, further
evidence is required which links the signature key or other signature device
used to the signatory himself.209

In practice, the recipient of an electronically signed document wishes to be

able to rely on the signature without further checking, and so a number of
organizations known as Certification Authorities have been set up. These
bodies take traditional evidence of identity, (e.g., by examining passports),
and, in the case of public key encryption signatures check that signatures

206
Ibid
207
See also the case of L'Estrange v. Graucob [1934] 2 KB 394, 403 per Scrutton LJ
208
See Saunders v. Anglia Building Society [1971] AC 1004.
209
Reed C. supra

88
effected with the signatory's secret key are verifiable using the public key. 210
Once the Certification Authority is satisfied as to the signatory's identity, it
issues an electronic certificate, which includes, inter alia, a certification of the
signatory's identity and of his public key.211 This certificate may be used by
the recipient to prove the signatory's identity.212

It is argued that, once identity has been proved, the very fact that an
electronic signature has been affixed to a document should raise the same
presumptions as for manuscript signatures.213 There is one difference,
however. In the case of a manuscript signature, the signatory has to be
present in person and must have the document to be signed in front of him.
Electronic signature technology is a little different. There are essentially two
options. Firstly, the signature is effected by selecting from an on-screen menu
or button, with the signature key stored on the signatory's computer.
Secondly, the signature key is stored on a physical token, such as a smart
card, which needs to be present before the signature software can affix the
signature.214

In either case, a third party who had access to the computer or to the storage
device would be able to make the signature. For this reason, an electronic
signature should be treated as more closely analogous to a rubber stamp
signature.215 The party who is seeking to rely on the validity of the signature
may need to adduce extrinsic evidence that the signature was applied with the
authority of the signatory. In many cases, where an electronic signature which
has previously been acknowledged by the signatory is effected by an
unauthorised third party, the apparent signatory will be estopped from denying

210
Smedinghoff, supra
211
Ibid
212
Ibid
213
Reed C. supra
214
Ibid
215
Ibid

89
that it was his signature216 because courts presume that a third party who is
given access to the signature technology has been authorised by the
signatory to sign on his behalf.217 Does this lead to a conclusion that an
electronic signature fails to meet the evidential requirements because a
successful forgery cannot be detected easily? The answer is, no. The reason
is that no such requirement is imposed for paper-based signatures.

Thus, while handwritten signatures in most cases serve merely to indicate the
signer's intent, signatures in an electronic environment typically serve three
critical purposes for the parties engaged in an e-commerce transaction: to
identify the sender, to indicate the sender's intent and to ensure the integrity
of the document signed.218

6.8 Impact of ICT on Rules of Authentication

Admittedly, modern computer and communications technology is making it

feasible, and in some cases essential, to use methods of signature which are
very different from the 'traditional' manuscript signature for purpose of
authenticating documents in electronic form.219

In paper-based commercial transactions, the traditional signature has

established itself as a cornerstone for effecting such transactions.220 A set of
well-defined rules governing the use of traditional signatures has developed
over a substantial period. These rules are the foundation for the currently
established commercial legal infrastructure, but the use of electronic
signatures, it is suggested, will challenge many of these well-established
rules.

216
See Brown v. Westminster Bank Ltd. [1964] 2 Lloyd's Rep. 187
217
Smedinghoff, supra
218
Ibid
219
Reed C, 'What is a Signature?', 2000 (3) The Journal of Information, Law and Technology (JILT).
http://elj.warwick.ac.uk/jilt/00-3/reed.html/ p. 1

90
The field survey revealed that 15 percent of practicing lawyers scan their
signatures and embed them on electronic documents. One would be tempted
to doubt whether judges are prepared to admit the documents so signed
electronically. The study revealed that thirty percent of judges responded that
they would allow a party in a case to tender a document signed in electronic
221
form. Seventy percent of judges were, however, reluctant to admit
documents signed electronically. Two main reasons can be attributed to this
reluctance. First, the TEA does not provide for electronic signatures; and
second, the meaning of signature does not include a signature in electronic
form.

The analysis of the provisions related to signatures under TEA is that

transactions must be documented in "writing" and be "signed." The immediate
impression that this section demonstrates is that it requires ink on paper and,
thus, the electronic communications do not meet appropriate legal
requirements for writing and signature envisaged in a number of statutes,
including TEA.

During the period of enactment of these statutes, the Legislature did not
contemplate technological advancement which makes it feasible to create
documents in electronic form. For example, the Interpretation of Laws Act 222
defines writing as “any expression referring to writing include printing,
lithography, typewriting, photography and other modes of representing or
reproducing words in visible form.”223 From this definition, it is clear that
digital information is not a representation or reproduction of words in a visible
form. However, courts may adopt a purposive approach to the meaning of this
definition and hold that an electronic document is a set of data from which
words in visible form can be reproduced if required.

220
Reed, C., Op. Cit at. 1
221
Ibid
222
Cap. 1 Revised Edition of 2002
223
Ibid

91
It is admitted that, given the ease with which the original of an electronic mail
message can be forged, authentication may present a problem should the
other party deny authorship of the message.

Simply relying on the e-mail address in the `From:' field of the message or on
the person's typed name appearing at the bottom of the message for
authentication may therefore not be enough. However, there are a number of
common-sense measures that can be taken. These can include use of a
private VAN which provides independent record of message origin and reply
to the stated e-mail address with an acknowledgement of receipt. An
unrejected acknowledgement may be accepted as evidence of authentication.
If the order is from a known customer, the acknowledgement may be sent by
fax or regular mail. The use of special customer codes or passwords known
only to the customer may also be an alternative for meeting the rules of
authentication.

6.9 Conclusion

This Chapter was aimed at examining the impact of ICT on documentary

evidence as well as on rules of authentication under the Tanzania Evidence
Act, 1967. The focus was on electronic records and documents as well as
signatures as a method of authentication of electronic documents.

It is observed that the Tanzania Evidence Act, 1967, that regulates

admissibility of documentary evidence and signatures has been affected by
the advent of ICT. These technologies, as observed, have brought changes
on the way of affixing signatures on electronic documents. It is now possible
to sign an electronic document electronically.

On rules of authentication, it was observed that electronic signature

technologies are capable of producing signatures that can meet legal
requirements similar to those imposed on paper-based signatures. The
underlying reason is that, there has been a shift from concentrating on the
form a signature is supposed to take to the function the signature ought to
perform. This function, as observed, is evidential.

92
 CHAPTER SEVEN

LEGAL FRAMEWORK FOR ADMISSIBILITY OF ELECTRONIC EVIDENCE

7.1 Introduction

This Chapter aims at examining the legal framework for admissibility of

electronic evidence in different countries. The focus of this work, as said
earlier, is limited to exploring the impact of ICT on rules of evidence under the
Tanzania Evidence Act, 1967. As discussed elsewhere in this book, Tanzania
has not done much in terms of reviewing its laws to respond to the
technological advancement. The law of evidence is also one of the branches
of the law that has been affected by such advancement of the technology,
particularly, computer technologies. However, in 2003, the Government of
Tanzania produced an ICT policy which indicates knowledge of a need to
have legal frame work to accommodate ICT in Tanzania.

The courts have also addressed the need to have a legislative response
towards ICT. This Chapter will therefore examine the initiatives made so far,
both at the national level for those countries which have so far legislated in
this area and at the International level. The aim here is to draw lessons that
Tanzania may find relevant for addressing the impact of ICT on its law of
evidence.

It is these lessons that if adopted, may guide Tanzania to create a legal frame
that recognizes electronic evidence as well as modern rules of authentication
of documents in electronic form.

It will be argued in this Chapter that the importance of having the legal
framework which creates confidence amongst those in the business
community currently employing ICT in transactions of basic operations is that
doing so will promote electronic commerce.

It will further be argued that legal barriers to electronic transactions resulting

from traditional writing and signature requirements may be and should be
removed by creating predictability through legislation and case law. The

93
legislation should clearly and unambiguously state that electronic signatures
satisfy legal signature requirements `and that writing in electronic form can
satisfy legal writing requirements. The legal framework for admissibility of
electronic evidence in different countries is discussed below.

7.2 Position in Tanzania

It was pointed out earlier that Tanzania has not made any progress in
enacting any legislation to regulate electronic transactions, including
electronic evidence. However, there have been some initiatives that may
ultimately lead to having a legal frame for regulation of ICT in general, and
particularly of electronic evidence. The initiatives can be grouped into three
forms. These are legislative, judicial and administrative. On legislative
initiatives, there are ongoing efforts by the Law Reform Commission of
Tanzania, which has so far made a study on introduction of the legal
framework to regulate ICT in Tanzania. The draft discussion paper in this
respect was a subject of discussion in a series of stakeholders‟ workshops. In
these workshops, the stakeholders said that Tanzania definitely needs a law
on ICT and that in fact it should have been in place many years ago.

Following these recommendations, the Law Reform Commission of Tanzania

took further important steps in this area.
The Commission prepared four Proposed Draft Bills based on functional
equivalence from the final Report on E-Commerce and-cyber and computer-
related crimes.
The Final Report plus the proposed Draft Bills have been submitted to the
Minister of Justice and Constitutional Affairs for further steps. The four Bills
are Electronic Evidence Bill, the Electronic Transactions and Communications
Bill, the Cyber-and Computer-Related Crimes Bill and the Data and Privacy
Protection Bill.224

224
Mambi, Adam, “The Status of Cyber Laws in Tanzania” Paper presented in the Cyber Laws

Workshop for East Africa, Kampala ,April 24-28 2006

94
The timely processing of the proposed Bills towards their enactment into laws
remains to be seen.

In yet another development in the area, the TEA has been amended to give
partial recognition to evidence generated electronically.225

Part IX of the amending Act, proposes to amend the Evidence Act, Cap. 6
(the Principal Act) and it reads: -

34.The principal Act is amended by adding immediately after section 40 the following
section-

“ 40A. In any criminal proceedings-

(a) An information retrieved from computer systems, networks or servers; or

(b) The records obtained through surveillance of means of preservation of

information including facsimile machines, electronic transmission and
communication facilities; or

(c) The audio or video recording of acts or behaviors or conversation of

persons charged,
Shall be admissible in evidence.

The marginal note is “Evidence obtained under-cover operations‟

35.The principal Act is amended by adding immediately after the definition of the
word “bank”, appearing in section 76, the following new definition –

78A. – (1) “ Banker‟s books” include ledgers, cash books, account

books and any other records used in the ordinary business of the bank
or financial institution, whether the records are in written form or a
data message kept on an information system including, but not limited
to computers and storage devices, magnetic tape, micro-film, video or
computer display screen or any other form of mechanical or electronic
data retrieval mechanism.

36. Finally, the Bill seeks to amend the principal Act by adding immediately after
section 78 the following section –

78B. – (1) A printout of any entry in the books of a bank on micro-film,

computer, information system, magnetic tape or any other form of
mechanical or electronic data retrieval mechanism obtained by a
mechanical or other process which in itself ensures the accuracy of
225
See supra note 4

95
 such print out, and when such print out is supported by a proof
stipulated under subsection (2) of section 78 that it was made in the
usual and ordinary course of business, and that the book is in the
custody of the bank, it shall be received in evidence under this Act.

(2) Any entry in any banker‟s book shall be deemed to be primary evidence of
such entry and any such banker‟s book shall be deemed to be a
“document” for the purposes of subsection (1) of section 64.
The marginal note in the new section 78 A is “Electronic records.‟

Nevertheless, as pointed out early in this work, this initiative alone is seriously
inadequate in so far as electronic transactions and their nature are concerned.

In the first place, the amendment does not cover all aspects of challenges
posed by electronic transactions on the law of evidence. Only some few
sections of the Tanzania Evidence are amended, leaving untouched a number
of other provisions of the same law which relate to documentary evidence.
The amendment is also inadequate if one takes into account the fact that
there are various other laws in the country which touch upon documents as
potential pieces of evidence.

Furthermore, the amendment does not cover all issues relating to ICT,
electronic commerce and Internet transactions in general, particularly in
relation to legal certainty.

Another shortcoming of the above amendment is lack of mechanisms for

authenticity. Since one of the main concerns in the admissibility of
electronically generated documents centers on the question of their security,
reliability and credibility, any attempt to provide legal recognition of this type of
documents has to go hand-in hand-with the provision for mechanisms of
authentication, so as to reduce the risks resulting from the above concerns.
The current amendment of the TEA does not mention anything about the
manner of authentication of electronically obtained documents when they are
used as evidence.

The importance of such a requirement need cannot be overemphasized. In

the age-old best evidence rule, electronically generated documents containing

96
factual statements fall foul of the hearsay prohibition.226 But as has been
observed in R v. Minors227 if computer outputs cannot be relatively used as
evidence in criminal cases, much crime will in practice be immune from
prosecution. The result of the decision was however that in order to ensure
mechanisms for the authentication of electronically generated evidence, or
computer printouts under the (English) Police and Criminal Evidence Act,
1984, all computer evidence have to comply with the provisions of section 69,
which reads:

(1) In any proceedings, a statement in a document produced by a computer shall

not be admissible as evidence of any fact stated therein unless it is shown:-

a) that there are no reasonable grounds for believing that the statement
is inaccurate because of improper use of the computer;

b) that at all material times, the computer was operating properly, or if

not, that any respect in which it was not operating properly or was out
of operation was not such as to affect the production of the document
or the accuracy of its contents.

To satisfy the court that the conditions under the provisions of section 69(1)
above have been met, it is necessary to obtain either a signed statement or
oral testimony from a person who occupies a responsible position in relation
to the operation of the computer system.

Looking at the conditions of admissibility of electronic evidence in India, one is

convinced that enough precautions have been taken. The (Indian) Information
Technology Act, 2000 introduces special provisions relating to electronic
records and their admissibility.228 The conditions which have to be satisfied so
as to make computer outputs primary evidence are stated in the relevant
sections as follows:

226
See A.Singh, Principles of the Law of Evidence, 1st ed, Central Law Publishers, Allahabad, 1977
227
[1982] 2 All ER 208 at 210
228
See Sections 65A and 65B of the (Indian) Information Technology Act, 2000

97
 a) It is necessary that the computer output containing the information was
produced by the computer, which was used regularly to store or
process the information for the purposes of any activities being
regularly carried on by the person having lawful control over the use of
the computer;

b) The information is of the kind which was regularly fed into the computer
in the ordinary course of its activities;

c) The computer should have been operating properly during the period of
the data feeding. If it was not operating properly during that period or
was out of operation, it is necessary that the gap was not such as to
affect the electronic record or the accuracy of its contents;

d) The information contained in the electronic record was derived or was

reproduced from the information fed into the computer in the ordinary
course of its activities.

In addition, two distinct kinds of Rules have been put in place for the
authentication of electronically generated documents.
These rules are The Information and Communication Technology (Certifying
Authorities) rules 2000 and the Cyber Regulations Appellate Tribunal
(Procedure) Rules, 2000.
The Information Technology (Certifying Authorities) Rules 2000 detail various
aspects and issues concerning the Certification Authorities for digital
signatures. These rules specify the manner in which information has to be
authenticated by means of digital signatures, the creation and verification of
digital signatures, licensing of certification authorities and the terms of the
proposed licenses to issue digital signatures. The said rules also stipulate
security guidelines for certification authorities and maintenance of mandatory
databases by the said certification authorities and the generation, issue, term
and revocation of digital signature certificates.

The said rules further mandate the audit of the operations of the Certification
Authority and classify various kinds of information.

98
Therefore, when a statement has to be produced in evidence under the above
section, it has to be accompanied by a certificate that identifies the electronic
record containing the statement.

Unfortunately, such safeguards are lacking in the recent amendment to the

TEA 1967.

For these reasons, this work concludes that more needs to be done in
addressing the challenges posed by electronic transactions on the law of
evidence in Tanzania.

The second initiative is judicial. The leading case in this respect is Trust Bank
Tanzania Ltd vs Le-Marsh Enterprises Ltd.229 The case will be discussed in
this Chapter when addressing the judicial response to the impact of ICT in
Tanzania. The third initiative is administrative. In this, the Government of
Tanzania in 2003 issued a policy on ICT as briefly discussed earlier in
Chapter Three.

7.3 Responses to the Impact of ICT in other Jurisdictions

A good number of jurisdictions that follow the common law legal system and
some others that follow the continental legal system may assist in providing a
solution to admissibility of electronic records and documents. Among the
jurisdictions to be examined are the United Kingdom, Canada, India and
South Africa. Other jurisdictions like United States of America will also be
examined, due to the fact that computer technology including the Internet
traces its origin from this country.

7.3.1 Position in Canada

Admissibility of electronic evidence in Canada is regulated by the Evidence

Act of Canada.230 The Act defines the term as follows: "record" includes the

229
Supra note 167
230
The Evidence Act of Canada (RS. 1985 Chapter C. 5 last accessed at http://laws.justice.gc.ca/en/C-
5/text.html on 27/04/2005

99
whole or any part of any book, document, paper, card, tape or other thing on
or in which information is written, recorded, stored or reproduced, and, except
for the purposes of subsections (3) and (4), any copy or transcript admitted in
231
evidence under this section pursuant to subsection (3) or (4).” Section 31.8
of the Act defines the term “data” to mean representation of information or of
concepts in any form. This would include, in our view, data or records in
electronic form.

The prime requirements to prove admissibility of electronic records are the

authenticity of that record, the integrity of the electronic system in which that
particular record was recorded or stored, and its being made in the usual and
ordinary course of business.232 The Act puts a condition for admissibility of
electronic records that any person seeking to admit an electronic document as
evidence has the burden of proving its authenticity by evidence capable of
supporting a finding that the electronic document is that which it is purported
to be.233

Thus, in Canada, electronic records made in the course of business including

electronic images are equal in law to traditional paper records provided that
they are authentic and that the electronic system which stores or generates
such records is both secure and reliable.

As was discussed in the preceding sections of this work, Tanzania has also
adopted similar safeguards placed on admissibility of electronic records by
way of amending the Evidence Act of 1967.234 The definition of the term
„record‟ under the Canada Evidence Act may as well be adopted in the
Tanzania Evidence Act. Safeguards under section 78 of the Tanzania
Evidence Act of 1967 together with such other safeguards have been made
applicable to electronic records.

231
Ibid, s.30 (12)
232
Ibid, s.30 (1)
233
Ibid, s. 31 (1)
234
See supra note 4

100
7.3.2 Position in the United States of America

In the United States of America, most federal courts that have evaluated the
admissibility of computer records have focused on computer records as
potential hearsay.235 The courts generally have admitted computer records
upon showing that the records fall within the business records
236 237
exception. Kahn points out that most federal and state laws have roughly
kept pace with the adoption of information technology necessitating existing
laws to be rewritten. The purpose is to have the laws account for new
technological developments. In this spirit, some new laws have been created
in some cases, while other laws have remained untouched. However, for the
untouched laws, wide interpretation is made to include new technology. As
the focus of this study is limited to examination of admissibility of electronic
records, evidence statutes of America will be examined.

Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." A "statement" is defined to
include a written assertion.238 Hearsay is not admissible in Federal court
except as provided by the Federal Rules of Evidence "or by other rules
prescribed by the Supreme Court pursuant to statutory authority or by Act of
Congress.”239 Among the exceptions enumerated under these rules are
Federal Rules of Evidence 803 that are particularly relevant to computer
printouts records of regularly conducted activity not excluded by the hearsay

235
Kerr S. Orin., Computer Records and the Federal Rules of Evidence, USA Bulletin (March 2001),
accessed at http://www.usdoj.gov/criminal/cybercrime/usamarch2001_4.htm on 30/03/2005 Kerr S.
Orin., Computer Records and the Federal Rules of Evidence, USA Bulletin (March 2001), accessed at
http://www.usdoj.gov/criminal/cybercrime/usamarch2001_4.htm on 30/03/2005
236
Ibid
237
Kahn, R., Op. Cit., at p. 9
238
Federal Rule of Evidence 801(c).

239
Federal Rule of Evidence 80 (2).

101
rule, even though the declarant is available as a witness. These records are a
memorandum, report, record, or data compilation, in any form, or acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term "business" as used in
this paragraph includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit. The
phrase “in any form” would include such records in electronic form and print
out made in the course of business.

Tanzania should also adopt this provision and amend s. 34 (b) of the
Evidence Act which is similar to this provision to recognize business records
generated or stored by computers in electronic form.

Case law supports the above provision of the law. In Minnesota v. Philip
Morris Inc.,240 it was held that printing out large amounts of data results in the
receiving party spending time analyzing the information. Receiving the data in
only electronic form still allows the receiving party to conduct necessary
analysis. Another case taking this position is National Union Electric Corp. v.
Matsushita Electric Industrial Co.,241 where it was held that electronic
evidence can be required to be produced in electronic form.

From these cases it is clear that a party is allowed in the US to produce a

computer hard disk, compact disk, flash disk or floppy diskette that contains
records as evidence in a court of law. For example in Sattar v. Motorola,
Inc.242 the producing party was ordered to provide the requesting party with

240
No. CI-94-8565 (Dist. Ct. Minn.)
241
494 F. Supp. 1257 (E. D. 1980)
242
138 F. 3d 1164 (7th Cir. 1998)

102
hard drives, software, or onsite access to the producing party‟s computer
system. Further, in Fennel v. First Step Designs, Ltd.243 access to a hard drive
was denied in light of the lack of probative justification after relevant
documents had been provided on disk.

Regarding reliability of electronic evidence, the court in Hahnemann

University Hospital v. Dudnick,244 held that computer evidence is generally
reliable. 245

The position was made clearer upon adoption of the Rules on Electronic
Evidence by the Supreme Court of the United States of America on July 17,
2001. Under the Rules, “whenever a rule of evidence refers to the term
writing, document, record, instrument, memorandum, or any other form of
writing, such term shall be deemed to include an electronic document”. The
Rules also state that “an electronic document is admissible in evidence if it
applies with the rules on admissibility prescribed by the Rules of Court and
related laws and is authenticated in a manner prescribed” by the Rules.
Moreover, the Rules amend the Best Evidence Rule in the Rules of Court. It
states “electronic documents shall be regarded as the equivalent of an original
document under the Best Evidence Rule if it is printout or output readable by
sight or other means, shown to reflect the data accurately.”

The Judiciary in Tanzania should adopt the approach taken by the U. S.

Courts, which extends the interpretation of paper-based records to include
records or documents in electronic form. Though these cases are not binding,
they provide a persuasive authority to Tanzanian courts.

243
83 F. 3d 526 (1st Cir. 1996)
244
292 N. J. Super. 11 (App. Div. 1996)
245
See Eckberg, J., E-mail: Messages are evidence accessed last at
http://www.enquirer.com/editions/2004/07/27/biz_biz2a.html. on 05/04/2005

103
7.3.3 Position in India

Before the enactment of the Indian Information Technology Act, 2000,246 the
Indian Evidence Act, 1872 regulated evidence matters. In practice, the Indian
law of evidence has been apt to accommodate new modern scientific
techniques of investigation. Thus, in India, strict adherence to doctrines of
best evidence rule, the necessity of direct evidence, prohibition of hearsay,
personal appearance of witnesses, precedence of documentary evidence, the
concept of a document and privileged communications beyond disclosure
have been re-examined with the view to making the law responsive to
changes brought about by information technology. 247

In this spirit, the Indian Information Technology Act of 2000 was enacted. As
shown in the preamble to this Act, the purpose of enacting it was to provide
legal recognition for transactions carried out by means of electronic data
interchange and other means of electronic communication which involve the
use of alternatives to paper-based methods of communication and storage of
information, to facilitate electronic filing of documents with the Government
agencies and further to amend the Indian Penal Code, the Indian Evidence
Act, 1872, the Banker‟s Books Evidence Act, 1891 and the Reserve Bank of
India Act, 1934.

Section 2 (d) of the said Information Technology Act of 2000 defines the
phrase „electronic records‟ to mean “data, records or data generated, image
or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche.”

On recognition of electronic records, section 4 of the above Act, provides that

“where any law provides that information or any other matter shall be in
writing or in the typewritten or printed form, then, notwithstanding anything

246
Act No. 21 of 2000 (India)
247
see the preface to the fifteenth edition in Sarkar., Op. Cit.,

104
contained in such law, such requirement shall be deemed to have been
satisfied if such information or matter is-

a. rendered or made available in an electronic form; and

b. accessible so as to be usable for a subsequent reference.

As said above, the Act amended various provisions in the statutes mentioned
above including the Indian Evidence Act of 1872. The aim of the amendment
is to accommodate electronic evidence including electronic records, which is
the focus of this study. In this spirit, the term „evidence‟ has been amended to
include “all documents including electronic records produced for the
inspection of the court.”248 Section 34, which lays down the evidentiary value
of entry made in books of accounts, has been amended. Thus, the words
“Entries in Books of Accounts, includes books maintained in an electronic
form” have been substituted for “Entries in books of accounts”, appearing in
section 34 of the TEA 1967.

In respect to entries in public records, section 35 lays down the relevancy of

entries in public records made by a public servant in performance of his duty.
In section 35, the word “records”, in both the places where it occurs, has been
replaced with the words “record or an electronic record.”

From the discussion above, the position of the law, as of now in India, is that
electronic records enjoy the same status as paper-based records. Sections
65A provides for admissibility of electronic records while section 65B provides
for safeguards on admissibility of electronic records. This Chapter will further
discuss these safeguards.

As pointed out earlier, the Indian Evidence Act of 1872 is similar to the
Tanzania Evidence Act, 1967. Before enactment of the Tanzania Evidence
Act, Indian Evidence Act of 1872 was made applicable to Tanzania under the
reception clause to regulate evidence matters.

248
Section 3 of India Evidence Act of 1872

105
The main lesson that can be adopted in Tanzania is amending sections 34,
36, 37, and 76 – 82 to include records made in the course of business in
electronic form, books of account to include books of account kept in
electronic form and a banker‟s book to include a banker‟s book kept or stored
in electronic form.

7.3.4 Position in the United Kingdom

Admissibility of electronic evidence in the United Kingdom is governed by Civil

Evidence Act, 1968 (U.K.) and the Police and Criminal Evidence Act, 1984
(U.K.) as amended by the Criminal Justice Act 1988 (U.K.).

In respect of admissibility of computer evidence, Section 5 of the Civil

Evidence Act, provides as follows:

“(1) In any civil proceedings a statement contained in a document produced

by a computer shall, subject to rules of court, be admissible as evidence of
any fact stated therein of which direct oral evidence would be admissible, if it
is shown that the conditions mentioned in subsection (2) below are satisfied in
relation to the statement and computer in question.”

The conditions that must be shown to exist for such evidence to be admissible
are: first, that the document containing the statement was produced by the
computer during a period over which the computer was used regularly to store
or process information for the purposes of any activities regularly carried on
over that period, whether for profit or not, by any body, whether corporate or
not, or by any individual; second, that over that period there was regularly
supplied to the computer in the ordinary course of those activities information
of the kind contained in the statement or of the kind from which the
information so contained is derived; third, that throughout the material part of
that period the computer was operating properly or, if not, that any respect in
which it was not operating properly or was out of operation during that part of
that period was not such as to affect the production of the document or the
accuracy of its contents; and fourth, that the information contained in the

106
statement reproduces or is derived from information supplied to the computer
in the ordinary course of those activities.

This position of the law was once given judicial interpretation where the views
of the Judge were well applied to the Act. This was in the English case of
Barker v. Wilson249
It was stated as follows:
"The Bankers‟ Books Evidence Act 1879 [of England] was enacted with
the practice of bankers in 1879 in mind. It must be construed in 1980 in
relation to the practice of bankers, as we now understand it. So
construing the definition of "bankers‟ books‟ and the phrase on "entry in
a banker‟s book", it seems to me that clearly both phrases are apt to
include any form of permanent record kept by the bank of transactions
relating to the bank‟s business made by any of the methods which
modern technology makes available…"
The case initiated a revolutionary move in the English evidence practice where, for
the first time, the court recognized the changes brought about by information and
communication technologies (modern technologies) in proving bankers‟ books.

7.3.5 Position in South Africa

In South Africa, admissibility of electronic evidence is governed by South

African Computer Evidence Act, 1983.250 The preamble to the Act251 states:
"To provide for the admissibility in civil proceedings of evidence generated by
computers; and for matters connected therewith". Its provisions allow for the
admissibility of "authenticated computer printouts", which is a computer
printout accompanied by an "authenticating affidavit". The authenticating
affidavit is to be deposed to by some person who is qualified to give the
testimony it contains by reason of first, knowledge and experience of
computers and of the particular system used by the computer in

249
[1980] 2 All E.R. 80 at page 82
250
1983 (Government Gazette, May 11, 1983; No. 8100 No.2, Act No. 57, 1983).
251
Ibid

107
question; second, examination of all relevant records and facts concerning the
operation of the computer and the data and instructions supplied to it.

The authenticating affidavit is to contain the following pieces of foundational

evidence in relation to the issue of admissibility: First, a description in general
terms of the nature, extent and sources of the data and instructions supplied
to the computer, and the purpose and effect of its processing by the
computer; second a certification that the computer was correctly and
completely supplied with data and instructions appropriate to and sufficient for
the purpose for which the information recorded in the computer printout was
produced; third, a certification that the computer was unaffected in its
operation by any malfunction, interference, disturbance or interruption that
might have had a bearing on such information or its reliability; fourth, a
certification that no reason exists to doubt the truth or reliability of any
information recorded in or result reflected by the computer printout; and fifth, a
verification of the records and facts examined by the deponent to the
authenticating affidavit in order to qualify himself for the testimony it contains.

The analysis of the legal framework discussed above reveals that the
procedure for admissibility of paper-based records made in the course of
business can and should be employed to admit electronic stored records
made in the course of business in Tanzania. The main tests are reliability,
trustworthiness and authenticity of such records.

The courts have always insisted on production of the original for the purpose
of testing the authenticity of records before admitting them as evidence in
courts proceedings. The Evidence Act of Tanzania provides that documents
must be proved by primary evidence. The Act defines primary evidence as the
document itself produced for the inspection of the court.252 According to this
rule, the document itself is the original. This position was restated in Shirin‟s
case253 where Onyiuke J. held: - “A document must be proved by primary

252
See section 64 (1) of the Act. For other definitions see 32A C.S.J. s.776, Lukas v. Williams & Sons
(1892) 2Q.B. 113 at p. 116 per Lord Esher MR.
253
Supra note 157

108
evidence by producing the document itself for the inspection of the court, and
by secondary evidence when it falls under the categories of s. 67 [of the]
Tanzania [sic] Evidence Act, 1967.”

The above scenario raises the question as to what amounts to an original in

an electronic environment. The ordinary construction of the term „original‟
under the Act,254 excludes records or documents in electronic form. Such
construction assumes existence of a tangible thing which, under normal
circumstances, entails a piece of paper. Under the Evidence Act,255 therefore,
the definition of the term „document‟ entails existence of elements of
physicality, visibility by sight and permanence of the record. In all senses, this
excludes electronic records and documents.256

7.4 The Best Evidence Rule

The United Nations Draft Model Law on electronic records as well as the
Indian Evidence provides good guidance in this respect. Experiences drawn
from the cited instruments may provide some lessons that Tanzania may
adopt in laying down a legal framework conducive to admissibility of records
in electronic form.

The requirement of an original is provided by the Draft Model Law which

states that „Where a rule of law requires information to be presented in the
form of an original record, or provides for certain consequences if it is not, that
requirement shall be satisfied in relation to a data [record] containing the
requisite information if:

(a) that information is displayed to the person to whom it is to be

presented; and (b) there exists a reliable assurance as to the
integrity of the information between the time the originator first
composed the information in its final form, as a data [record] or as

254
See s. 2 of the Tanzania Evidence Act, 1967
255
Ibid
256
Ibid

109
 a record of any other kind, and the time that the information is
displayed.”

Regarding admissibility of electronic records, the Draft Model Law provides

that, in any legal proceedings, nothing in the application of the rules of
evidence shall apply so as to prevent the admission of a data [record] in
evidence on the grounds that it is a record if it is the best evidence that the
person adducing it could reasonably be expected to obtain, on the grounds
that it is not an original document.257

On the weight of electronic records, sub-article 2 provides that information

presented in the form of a data [record] shall be given due evidential weight.
In assessing the evidential weight of a data record, regard shall be had to the
reliability of the manner in which the data record was generated, stored or
communicated, to the reliability of the manner in which the information was
258
authenticated and to any other relevant factor.

7.5 Lessons drawn from India

Section 65A provides that the contents of electronic evidence may be proved
in accordance with the provisions of section 65B. Section 65B provides
admissibility of any information contained in an electronic record, which is
printed on paper, stored, recorded or copied in optical or magnetic media
produced by a computer (computer output) which are deemed under the
provision as documents.259 Based on the above analysis, it is clear that a
party to a case is allowed to bring in the courtroom a hard disk, a flash disk,
compact disk or a floppy diskette to prove the alleged fact using electronic
documents resident therein. However to be admissible as such, a party must
satisfy the conditions set out under section 65B (2) of the Act.

257
See Article 9 (1) of the Draft Model Law

258
See Article 9 (2) of the Draft Model Law
259
See s. 65B (1) of the Indian Evidence Act, 1872 as amended by the Information Technology Act,
2000

110
The conditions are as follows: first, that the computer output containing the
information has to be produced by the computer during the period over which
the computer was used regularly to store or process information for the
purposes of any activities regularly carried on over that period by the person
having lawful control over the use of the computer; second, that during the
said period, information of the kind contained in the electronic record or of the
kind from which the information so contained is derived was regularly fed into
the computer in the ordinary course of the said activities; third, that throughout
the material part of the said period, the computer was operating properly, or, if
not, then in any respect of any period in which it was not operating properly or
was out of operation during that part of the period, was not such as to affect
the electronic record or accuracy of its contents; and fourth, that the
information contained in the electronic record reproduces or is derived from
such information fed into the computer in the ordinary course of the said
activities.

Section 65B requires production of the certificate by the offeror of electronic

documents for two purposes. Firstly, for identifying the electronic record
containing the statement and describing the manner in which it was produced.
Secondly, to give such particulars of any device involved in the production of
that electronic record as may be appropriate for the purpose of showing that
the electronic record was produced by a computer. This section further
provides that the certificate produced in this respect should be signed by a
person occupying a responsible official position in relation to the operation of
the relevant device or the management of the relevant activities. 260

From the provision discussed above, it is clear that the concept of original in
an electronic environment is different from original in a paper-based
environment. As seen above, the original in paper-based records and
documents is the document itself, presented for inspection of the court. In the
electronic environment, due to the nature of the electronic records, the
emphasis is placed on reliability of the system that generates or stores

260
65B (4) of the Indian Evidence Act, 1872 as amended by the Information Technology Act, 2000

111
electronic documents. Thus, it must be proved that the system was working
properly at the period the records or documents were either generated or
stored.

7.6 Admissibility of Electronic Signatures

There have been initiatives to regulate electronic signatures at international,

regional and national levels by way of legislation. It is argued that electronic
signature legislation can be designed and enacted to accomplish two goals.261
These are, first, to remove barriers to e-commerce, and second, to enable
and promote the desirable public policy goal of e-commerce by helping to
establish the "trust" and the "predictability" needed by parties doing business
online.262 The judiciary ought also to play a key role in establishing the rules
that will govern online transactions.

7.6.1 Position in the United Kingdom

The United Kingdom's Electronic Communications Act 2000 ("UK ECA") came
into force on 25 May 2000. The Act defines electronic signature as so much of
anything in electronic form as is incorporated into or otherwise logically
associated with any electronic communication or electronic data and which
purports to be so incorporated or associated for the purpose of being used in
establishing the authenticity of the communication or data, the integrity of the
communication or data, or both.

On admissibility of electronic signatures, section 7 of the Act provides that “in

any legal proceedings, an electronic signature incorporated into or logically
associated with a particular electronic communication or particular electronic
data, and the certification by any person of such a signature, is admissible in
evidence in relation to any question as to the authenticity of the
communication or data or as to the integrity of the communication or data.

261
Semidinghoff, Op. Cit
262
Ibid

112
From the above discussion, an electronic signature is defined generally as
being data in electronic form which is attached to or logically associated with
other electronic data and which serves as a method of identification. This
might include, for example, using a name on an email and sending it from an
identifiable email address.

7.6.2 Position in India

Before the enactment of the Indian Information Technology Act, 2000, 263 the
Indian Evidence Act, 1872 regulated evidence matters. In 2000 the Indian
Information Technology Act was enacted. As shown in the preamble to this
Act, the purpose of enacting it was to provide legal recognition for
transactions carried out by means of electronic data interchange and other
means of electronic communication, which involve the use of alternatives to
paper-based methods of communication and storage of information, to
facilitate electronic filing of documents with the Government agencies and
further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the
Banker‟s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934.

On electronic signatures, the Act provides “any subscriber may authenticate

an electronic record by affixing his digital signature”. On authentication of
electronic records the Act provides that the same “shall be effected by the use
of asymmetric crypto system and hash function which envelop and transform
the initial electronic record into another electronic record.”

The Act defines "hash function" to mean “an algorithm mapping or translation
of one sequence of bits into another, generally smaller sets known as "hash
result" such that an electronic record yields the same hash result every time
the algorithm is executed with the same electronic record as its input making it
computationally infeasible”

263 Act No. 21 of 2000 (India)

113
On legal validity of electronic signatures, the Act provides that “where any law
provides that information or any other matter shall be authenticated by affixing
the signature or any document shall be signed or bear the signature of any
person then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied, if such information or
matter is authenticated by means of digital signature affixed in such manner
as may be prescribed by the Central Government.”

This Act regulates security of electronic signatures by establishing certification

mechanisms known as Digital Signature Certificates. The application for these
certificates is made by any person to the Certifying Authority subject to
payment of fees amounting to twenty-five thousand rupees.264

7.6 .3 Position in the European Union

The EU Electronic Signatures Directive (1999/93/EC) ("ES Directive") states

its purpose as “to facilitate the use of electronic signatures and to contribute to
their legal recognition.”265 The Directive also establishes a legal framework for
electronic signatures and certain certification service in order to ensure the
proper functioning of the internal market.266

Two forms of signatures are recognized under the Directive. These are
electronic signatures and advanced electronic signatures.267 The Directive
defines electronic signature as data in electronic form which are attached to or
logically associated with other electronic data and which serves as a method
of authentication. The second form is advanced electronic signature.268

264
Section 35 of the Indian Information Technology Act, 2000
265
Article 1 of the EU Electronic Signatures Directive (1999/93/EC) ("ES Directive").

266
Ibid
267
Ibid, Article 2 (1)
268
Ibid

114
The advanced electronic signature is defined as electronic signature which
meets the following requirements: it is uniquely linked to the signatory,
capable of identifying the signatory, created using means that the signatory
can maintain under his sole control and lastly, linked to the data to which it
relates in such a manner that any subsequent change for the data is
detectable.269 This advanced form of electronic signature will require the use
of some form of encryption.270

7.6.4 Position of the United Nations

The leading piece of legislation at the International level is the UNCITRAL
Model Law on Electronic Signatures. Article 6 (1) provide of the Model Law
provides that “where the law requires a signature of a person, that
requirement is met in relation to a data message if an electronic signature is
used that is as reliable as was appropriate for the purpose for which the data
message was generated or communicated, in the light of all the
circumstances, including any relevant agreement.”271

The Model Law defines electronic signatures as “data in electronic form in,
affixed to or logically associated with, a data message, which may be used to
identify the signatory in relation to the data message and to indicate the
signatory‟s approval of the information contained in the data message.” 272 The
Model Law defines “certificate” as “a data message or other record confirming
the link between a signatory and signature creation data” 273 The data
message is defined as “information generated, sent, received or stored by
electronic, optical or similar means including, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy”274

269
Ibid
270
Loyyd., Op. Cit at p. 555
271
UNCITRAL Model Law on Electronic Signatures
272
Ibid, Ariticle 1
273
Ibid
274
Ibid

115
On reliability and security of electronic signatures, the Model Law provides
that an electronic signature is considered to be reliable if first, the signature
creation data are within the context in which they are used, linked to the
signatory and to no other person. Second, the signature creation data were, at
the time of signing, under the control of the signatory and of no other person.
Third, any alteration to the electronic signature, made after the time of signing,
is detectable. Last, if any alteration made to that information after the time of
signing is detectable. The purpose of these requirements is to assure integrity
of the electronic records.

The analysis of these statutes demonstrates two important aspects. Firstly, an

electronic signature is not to be denied admissibility as evidence in legal
proceedings solely on the ground that it is in an electronic form. Secondly,
that electronic signatures enjoy the same legal status as the paper-based
signatures.

7.7 Suitable Approaches Recommended for Tanzania

As observed elsewhere in this study, the Tanzania Evidence Act of 1967 does
not accommodate electronic evidence and modern rules of authentication of
electronic documents. It is argued here that the same safeguards can be
applied to govern admissibility of electronic records. However, as learned
from jurisdictions examined above, this requires a combination of two
mechanisms. These are legislative and judicial intervention.

7.7.1 Legislative Intervention

As observed in this Chapter, a good number of countries have enacted

specific statutes to govern this area. On electronic signatures alone,
according to Smedinghoff275 forty-nine states of America, the U.S. Federal
Government, and the governments of over fifteen countries have enacted or
are currently considering some form of electronic signature legislation. In

275
Smedinghoff, Op. Cit.

116
the U.S. alone, fifty-seven new electronic signature bills were introduced in
the state legislatures during the first two months of 1999.276

At the International level, the Model Laws of the United Nations in this respect
is also a good example. These Model Laws are UNCITRAL Model Law on
Electronic Commerce and UNCITRAL Model Law on Electronic Signatures. At
the regional level, the European Union adopted the Directives on E-commerce
and Electronic Signatures.

The field survey reveals that 75 percent of judicial officers are of the view that
the most suitable approaches for Tanzania are to amend the TEA to
accommodate electronic evidence and for principles governing paper-based
documents to be extended through precedent to cover documents in
electronic form. As indicated above, while this work was still in progress, the
parliament amended the TEA 1967 for that purpose.

Practicing lawyers took a more or less different approach. They suggest two
approaches. The first one is enactment of a single comprehensive legislation
on ICT and the second, is to have a comprehensive statute of evidence that
provides for electronic evidence.

The authors are in consensus with the view taken by practicing lawyers, that
is to have a single law on ICT. However, there are some areas that may need
to have a specific piece of legislation to address fully peculiar features in that
area. The law of evidence is one of those where mere amendment is
insufficient; there is a need to have a comprehensive piece of legislation to
regulate this area. A good example of this is the commonwealth model law on
electronic evidence. The need to have a law on this are was correctly stated
by Hon. Nsekela J., (as he then was) in the following words:- “… inasmuch as
I subscribe to the view that the court should not be ignorant of modern
business methods and shut its eyes to the mysteries of the computer, it would

276
Ibid

117
however, have been much better if the position were clarified beyond all
doubts by legislation rather than by judicial intervention.” 277.

Legislative intervention can best be achieved by enacting a law that regulates

ICT in general and admissibility of electronic evidence, including electronic
signatures. A good example is the Indian Information Technology Act, 2000,
that amended the Indian Penal Code, the Indian Evidence Act, 1872, the
Banker‟s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934.
The second one is to have a comprehensive statute of evidence that provides
for electronic evidence. The good example is the Uniform Electronic Evidence
Act of 1999.

The law proposed to be enacted will have to provide for requirements for the
satisfaction of an original, which, as learned from other jurisdiction, is satisfied
by proof of reliability of the system that stored or generated electronic records.

7.7.2 Judicial Intervention

The role of the Judiciary in the interpretation of the law is a crucial one. In
adopting a purposive approach, the court may remove the writing and
signature barriers on electronic transactions by replacing the term “document”
for the term “record”. The intention of this is to include electronic or digital
records within the meaning of records. Thus, when a statute requires a record
to be in writing, an electronic record would satisfy the requirement.

On electronic signatures, it is recommended that the court should adopt the

definition of the term “signature” as proposed earlier in this study, which may
cover scanned manuscript signatures, typing one‟s name or initials, using
personal identification numbers, use of cryptography methods and clicking on
website button “I Agree”, to satisfy the statutory signature requirements. As
argued elsewhere in this study, electronic signatures are capable of
performing the functional requirements of signatures, that is, to demonstrate
and authenticate documents. The function of authentication is to establish the

277
See supra note

118
parties to an agreement, their legitimacy and the intention that the formalized
agreement be acted upon.

The leading case in Tanzania to extend the definition in paper-based statute

to cover printed electronic records is Trust Bank Tanzania Ltd case.278 In this
case Nsekela J.279 (as he then was), adopting the views of the English Judge
in the Barker‟s case,280 extended the definition of bank records to include
computer print-outs. He noted further “the law must keep abreast of
technological changes as they affect the way of doing business”. On the role
of the courts, Nsekela J, was of the view that “the court should not be ignorant
of modern business methods and shut its eyes to the mysteries of the
computer….”

Subsequently, cases involving computer-generated evidence have been

referred to a court of law. For instance, Tanzania Bena Co. Ltd v. Bentash
Holdings Ltd281 relates to e-mail evidence. In this case, parties exchanged
communications by way of e-mails on purchase of a farm and crushers. The
e-mails were tendered in court and admitted as one of the exhibits. The court
(per Kimaro J.,), found that the exchange of e-mails between the parties
draws a conclusion that the defendant took possession of the farm and
crushers.

National Bank of Commerce v. Milo Construction Co. Ltd and two others282
was the case involving a claim on recovery of an amount of money alleged to
have arisen out of an overdraft facility. It was alleged that the plaintiff
defaulted repayment of the said facility. Two statements were tendered in
court. One was the processed easy bank computer program and the other

278
Supra note 168, p.13
279
Justice Nsekela is currently a judge of the Court of Appeal of Tanzania
280
Supra note 168
281
Commercial Case No. 71 of 2002 (Unreported)

282 Commercial Case No. 293 of 2002 (Unreported)

119
was the processed inflexible banking computer program. The court found
discrepancies between the two statements as some entries were not reflected
in one of the statements. The Plaintiff did not adduce sufficient explanation on
the discrepancies. The court therefore found that the plaintiff has failed to
prove the exact amount the first Defendant borrowed from the Plaintiff.

The analysis of this case reveals that the Plaintiff had bank-produced
statements generated by two different computer programs. The later program
did not have features similar to the earlier one. Unfortunately, the Bank failed
to lead expert evidence to clear the discrepancies noted. The court was
therefore justified in rejecting the claim in absence of sufficient explanations
regarding the operation of the two computer programs. One would expect the
bank to make use of the software programmers who created the two
computer programs. Perhaps it is an opportune moment for the courts to
make use of forensic experts, who would assist it in analyzing computer-
related evidence.

7.8 Conclusion

The thrust of this chapter centred on the legal framework for admissibility of
electronic evidence in Tanzania. The Tanzania position was addressed, and it
was observed that, although there are some recent legislative as well as
administrative and judicial initiatives, the current legal system does not
adequately address the impact of ICT on the rules of evidence in Tanzania.
Lessons from other jurisdictions were drawn, and it was found that such
jurisdictions have responded to the impact of ICT by enacting pieces of
legislation on various areas. The law of evidence is one of the areas that have
been legislated from.

It was pointed out in this chapter that there is a need to have a

comprehensive legal framework for admissibility of electronic evidence in
Tanzania. The approaches proposed are to enact a comprehensive piece of
legislation on electronic evidence to provide for electronic documentary
evidence as well as electronic signatures.

120
The role of the court in extending the existing principles of documentary
evidence and rules of authentication to cover electronic documents and
electronic signatures as observed is also a crucial one. This is important
because parties transacting online need to be assured that the transactions
they are engaged in will in the end, be protected by the law. In absence of the
legislation to this effect, it is argued in this work that judges should be
prepared to extend the principles applicable to paper-based documents and
rules of authentication to cover documents and signatures in electronic form
by giving a wider interpretation to terms like “signature”, “writing”, “document”,
“record” and other terms of similar nature.

121
 CHAPTER EIGHT

CONCLUSIONS AND RECOMMENDATIONS

8.1 Conclusions

The discussion in this book aimed at assessing the impact of ICT on rules of
evidence in Tanzania. It endeavoured to examine the legal framework under
which electronic transactions are currently conducted in Tanzania.

In part one, the book explored the historical developments of electronic

transactions in the country. International electronic commerce (e-commerce)
as one of the necessary products of ICT development was discussed. It was
observed in this part that the world‟s economy is currently shifting from paper-
based to a paperless economy. In the paperless economy, businesses and
consumers are increasingly using computers to create, transmit and store
information in the electronic form instead of traditional paper documents.

The advantages attending the global information communications technology

revolution include productivity, savings on time and costs, speeding up and
facilitation of transactions, access to superior and more up-to-date
information, easier and cheaper communication both domestically and
internationally and, in the particular context of e-commerce, access to a wider,
and indeed, a global economic market at relatively little cost. With regard to
the benefits of information communications technology, particularly from the
perspective of developing countries such as Tanzania, the United Nations
recognises that information communications technology could be a
contributing factor to achieving its Millennium Development goal of the
reduction of poverty and of economic development generally. For these
reasons, it is very important to address the challenges that the information
communications technology revolution poses for national legal systems and to
consider ways to maximize the opportunities that it opens up at the same
time. The main challenges brought about by electronic transactions revolve
around the requirement of writing and signatures on documents and records
for legal recognition.

122
It was concluded that, as ICT development necessitated changes in the way
business transactions are currently conducted, the main challenge posed by
these developments, in turn, is the necessity of parallel changes in both
national and international legal framework to accommodation the changes.

Part Two of the book looked at the law of evidence in Tanzania, in general,
and the significance of evidence and rules of authentication in legal
transactions, in particular. It was found out that the law of evidence governs
modes and methods for provision of facts and information to enable a judicial
conclusion. It was further revealed that electronic evidence is a new method
of presenting evidence in court. It is therefore imperative that a clear legal
framework should be established for this newly developing method and type
of evidence and that it should be incorporated in the existing law of evidence.

Examination of the TEA was done with a view to identifying principles

governing admissibility of evidence in Tanzania. It was concluded that the
TEA has created a gap in that it does not accommodate electronic evidence
and signatures. Recent developments in the form of legislative intervention
where the TEA is proposed to be amended were noted. The amendment
intends to incorporate provisions which recognize electronically generated
evidence. It was however observed that the proposed amendment does not
fully address the challenges brought about by ICT developments and its
resultant electronic transactions.

Judicial intervention was also discussed. It was found out that courts have not
remained silent to the new techniques of presentation of evidence. The
amendment of the banker‟s book to include a computer-generated statement
is one proof of this fact.

The impact of ICT on rules of evidence under the TEA was explored, and it
was observed that the best evidence rule and rules governing authentication
of documents under the TEA have been affected by the advancement of ICT.
The conclusion is that principles governing admissibility of paper-based
documents and rules of authentication under the Act can hardly be applied to
documents in electronic form. The reason is based on the nature of electronic

123
evidence, to wit, not tangible, not visible, not permanent, easy to manipulate
and on some occasions, automatically generated by computers or
computerized devices.

The legal framework for admissibility of electronic evidence was also

examined. Due to the fact that Tanzania still lacks sufficient legal framework
for recognition of electronic transactions, efforts made in various countries to
respond to the impact of ICT in their laws were explored. As observed, the
impact was addressed by way of legislation. Courts in the countries reviewed
have been able to extend principles governing paper-based transactions to
govern transactions in electronic form.

In Tanzania, there are various other ongoing initiatives to have a law that
recognizes electronic transactions, including electronic evidence, in place.
Some of these are the introduction of the ICT policy which, as observed, did
not fully address how the legal framework in this respect should be put in
place, apart from mentioning a need to reform the existing pieces of
legislations and enacting specific ones to accommodate electronic
transactions. The other two initiatives are commendable. The first one is led
by the Law Reform Commission of Tanzania, which is carrying out a review of
the laws affected by ICT with a view to recommending legislative intervention
and the second on a by the Judiciary which has started to respond to the
impact as a result of advancement of ICT by giving “banker‟s book” a wide
interpretation to include a computer-generated bank statement.

8.2 Recommendations

Based on the observations made in this study as pointed out above, it is

recommended that the gap or lacuna created by development of the
information communications technologies on the Evidence Act, 1967, in
respect of admissibility of electronic evidence including electronic signatures,
be filled by way of legislation and judicial responses.

For the legislative process, two approaches are recommended. The first is to
enact a comprehensive piece of legislation on ICT and electronic evidence to

124
provide for admissibility of electronic records and documents as well as
electronic signatures. It is proposed in this study that there should also be a
specific statute to govern electronic signatures. This is because this area is
very wide, and it needs special attention. A good example is the UNCITRAL
Model Law on Electronic Signatures. This approach has also been adopted in
the United States of America where there are a number of statutes specifically
regulating electronic signatures. The laws to be enacted could then amend all
other laws touching upon and/or requiring electronic records.

The second approach is judicial response. It is recommended that judges

should continue to play a pivotal role in extending the existing principles
governing paper-based documents and authentication to cover documents
and signatures in electronic form. It is recommended that the judges should
categorically hold that evidence in a computer hard disk flash disk; compact
disk or floppy disk is relevant and admissible to prove or disprove a fact in
issue in legal proceedings. The effect of this is to allow parties to present in
court not only computer printouts but also a piece of information in the above-
mentioned devices. For instance, in the case of National Bank of Commerce
v. Milo Construction Co. Ltd and two others283 discussed in this work, the
court missed the opportunity of inspecting the two computer programs which
generated the statements that were admitted in court. The examination of the
two programs, with the aid of a forensic expert, would have cleared the doubts
whether replacing an old computer program for a new one leads to having two
different standards of calculating interest resulting in two different statements.
With the absence of a computer forensic, a person knowledgeable with the
operation of the two computer programs could have been called to testify in
this respect.

A similar view was taken in the English case of R. v. Shepherd.284 Though this
case was criminal in nature, the principle set in this case is relevant to the
point under discussion. It was held that “… proof that a computer was reliable

283
Ibid
284
[1993] I All ER at 213

125
could be provided by calling a witness who was familiar with its operation in
the sense of knowing what the computer was required to do and who could
say that it was doing it properly, and such a witness needs not be someone
responsible for the operation of the computer.285

Furthermore, in the view of the authors, this also would have been a good
opportunity for the court to give directives to guide admissibility of electronic
evidence in Tanzania. The precedent set by the Supreme Court of America, in
this respect, is worth emulating.

The significance of having a legal framework for recognition of electronic

evidence in Tanzania is that it would create a conducive environment of
predictability and certainty in computer-related transactions, including
electronic commerce. By doing so, parties employing computer technologies
would be assured that the law will ultimately protect transactions that they
engage in.

As the law stands now, electronic transactions in Tanzania remain doubtful

and uncertain undertakings to fully and freely engage in.

285
Ibid

126
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25/02/2005

Kilekamajenga N. N. “Online Contracts: When and Where a Contract is

Formed” Master‟s Thesis, Stockholm University, Spring 2004

Lake, S. “E-Commerce and LDCs Challenge for the Enterprises and

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Masara, Y. “Advancement in Technology: A Quest for the Law on Computer

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Annual General Meeting for the State Attorneys, DSM, 2006

Rao, S. R., “Lectures on Law of Evidence (Indian Evidence Act, 1872 as

amended by Act No. 4 of 2003)”, Asian Law House, 2004

Ryan D. J., & Shpantzer, G., “Legal Aspects of Digital Forensics”, The George
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Conference of Canada accessed on 05/04/2005 a Uniform Law Conference of

Canada at http://www.law.ualberta.ca/alri/ulc/current/eelev.htm

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REPORTS

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UNCTAD, “E-Commerce and Development Report 2002” New York/Geneva,

2002

Smith, A., “Why Digitize?” An Article accessed at

http://www.irmt.org/evidence/wbediscussion.html.

The ICT Policy of Tanzania accessed at www.ecommerce.gov/framewrk.htm

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from the Global Periphery” National Archives of South Africa Journal of the

Society of Archivists, Volume 25, Number 2 / October 2004 at pp 211 – 220

Kerr S. Orin, “Computer Records and the Federal Rules of Evidence”, USA

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Mercer, C. “Telecentres and Transformations: Modernizing Tanzania through

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Dalhuisen, Jan. Dalhuisen on International Commercial, Financial and Trade

Law, 2nd Ed, Hart Publishing, Oxford and Portland Oregon, 2004.

Hornby, A. S., Oxford Advanced Learner‟s Dictionary of Current English,

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Kamal, A & Gelbstain E., Information Insecurity: A Survival Guide to the

Uncharted Territories of Cyber-Threats and Cyber-Security, UNITAR, 2002

Krishnamachari, V., Law of Evidence (as Amended by Act No. 4 of 2003).

Mackaay, E et al (eds), Electronic Superhighway: The Shape of Technology

and Law to come, Kluwer Law International, The Hague/Boston, 1995

Mapunda, B. T., Evidence, Part One, The Open University of Tanzania, First
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129
APPENDICES

APPENDIX 1: ELECTRONIC EVIDENCE MODEL LAW

AN ACT to make provisions for the legal recognition of electronic records and to
facilitate the admission of such records into evidence in legal proceedings.

BE IT ENACTED by the Parliament (name of legislature) of

……. (name of country) as follows:

Short Title 1. This Act may be cited as the Electronic Evidence Act..

Interpretation 2. In this Act,

“data” means representations, in any form, of

information or concepts;

“Electronic record” means data that is recorded or stored

on any medium in or by a computer system or other
similar device and that can be read or perceived by a
person or a computer system or other similar device. It
includes a display, printout or other output of that data.

“electronic records system” includes the computer

system or other similar device by or in which data is
recorded or stored, and any procedures related to the
recording and preservation of electronic records.

“Legal proceeding” means a civil, criminal or

administrative proceeding in a court or before a tribunal,
board or commission.

General 3. Nothing in the rules of evidence shall apply to deny

Admissibility the admissibility of an electronic record in evidence
on the sole ground that it is an electronic record.

4. (1) This Act does not modify any common law or

statutory rule relating to the admissibility of records,
except the rules relating to authentication and best
evidence.

Scope of Act (2) A court may have regard to evidence adduced under
this Act in applying any common law or statutory rule

130
 relating the admissibility of records.

Authentication 5. The person seeking to introduce an electronic record in

any legal proceeding 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.

Application 6. (1) In any legal proceeding, subject to subsection (b), where

of Best the best evidence rule is applicable in respect of electronic
Evidence record, the rule is satisfied on proof of the integrity of the
Rule electronic system in or by whichthe date was recorded or stored.

(2) In any legal proceeding, where an electronic record in

the form of printout has been manifestly or consistently acted
on, relied upon, or used as the record of the information
recorded or stored on the printout, the printout is the record for
the purposes of the best evidence rule.

Presumption 7. In the absence of evidence to the contrary, the integrity of

of Integrity the electronic records system in which an electronic record is
recorded or stored is presumed in any legal
proceeding:

(a) where evidence is adduced that supports a finding

that at all material times the computer system or other
similar device was operating properly, or if not, that
in any respect in which it was not operating properly,
or was out of operation, the integrity of the record
was not affected by such circumstances, and there are
no other reasonable grounds to doubt the integrity of
the record.

(b) Where it is established that the electronic record was

recorded or stored by a party to the proceedings who
is adverse in interest to the party seeking to introduce
it; or

(c) Where it is established that the electronic record was

recorded or stored in the usual and ordinary course of
business by a person who is not a party to the
proceedings and who did not record or store it under
the control of the party seeking to introduce the
record.

Standards 8. For the purpose of determining under any rule of law

whether an electronic record is admissible, evidence may

131
 be presented in respect of any standard, procedure, usage
or practice on how electronic records are to be recorded or
preserved, having regard to the type of business or endeavour
that used, recorded or preserved the electronic record and the
nature and purpose of the electronic record.

Proof by 9. The matters referred to in sections 6, 7, and 8 may be

Affidavit established by an affidavit given to the best of the deponent’s
knowledge or belief.

Cross 10. (1) A deponent of an affidavit referred to in section 9 that

Examination has been introduced in evidence may be cross-examined as
of right by a party to the proceedings who is adverse in
interest to the party who has introduced the affidavit or
has caused the affidavit to be introduced.

(2) Any party to the proceedings may, with leave of the court,
cross examine a person referred to in subsection 7(c).

Agreement 11.(1) Unless otherwise provided in any other statute, an electronic

On record is admissible, subject to the discretion of the court, if
admissibility the parties to the proceedings have expressly agreed at any
of Electronic
Records time that its admissibility may not be disputed.

(2) Notwithstanding subsection (1) , an agreement between the parties on

admissibility of an electronic record does not render the record
admissible in a criminal proceeding on behalf of the prosecution
if at the time the agreement was made, the accused person or
any of the persons accused in the proceeding was not
represented by a solicitor.

Admissibility 12. (1) Where a rule of evidence requires a signature, or provides

of electronic for certain consequences if a document is not signed, an
Signature electronic signature satisfies that rule of law or avoids
those consequences.

(2) An electronic signature may be proved in any

manner, including by showing that a procedure
existed by which it is necessary for a person, in
order to proceed further with a transaction, to
have executed a symbol or security procedure for
the purpose of verifying that an electronic record
is that of the person.

132
APPENDIX I1: ELECTRONIC TRANSACTIONS MODEL LAW

AN ACT to facilitate electronic transactions

1. Short title
This Act may be cited as the Electronic Transactions Act.286
2. Commencement
This Act commences on a date fixed by usual provision for enacting
country .

3. Objects
The objects of this Act are:
a) to eliminate legal barriers to the effective use of electronic
communications in transactions;
b) to promote the harmonization of legal rules on electronic
transactions across national boundaries;
c) to facilitate the appropriate use of electronic transactions;
d) to promote business and community confidence in electronic
transactions; and
e) to enable business and the community to use electronic
communications in their transactions with government.287
4. Definitions
(1) In this Act:
“electronic” includes created, recorded, transmitted or stored in digital or
other intangible form by electronic, magnetic, optical or by any other means
that has capabilities for creation, recording, transmission or storage similar to
those means.288

“electronic signature” means information in electronic form that a person has

created or adopted in order to sign a document and that is in, attached to or
associated with a document.289

“public body” organ of state includes:290

286
If the enacting state decides on a broader or narrower scope, as discussed at s.5 below, then the title
and short title could change to reflect the actual coverage.
287
If more detail is desired, consider section 3 of Singapore‟s Electronic Transactions Act, with
possible exception of paragraph (c ) of that Act.
288
This is intended to be an expansive definition, to apply to future developments, without being too
closely bound by engineering considerations.
289
This definition includes the word “sign” to show that the legal effect of an electronic signature is the
same as that of a handwritten signature.

133
 (a) a Minister, ministry or department of government;
(b) courts
(c) bodies exercising statutory authority, of legislative,
executive or judicial nature
(d) subnational or local public authorities, including
municipalities.291

“information system” means a system for generating, receiving

sending, storing or otherwise processing electronic communications.

“Rule of law” means the common law, legislation, and subordinate

legislation.

5. Crown/Government/State to be bound
This Act binds the Crown/Government/State .292
6. Non-discrimination against electronic information

(1) Information shall not be denied legal effect, validity or

enforcement solely on the ground that it is in electronic form.293

(2) In sections 7, 8, 9, 10 and 11,

(a) where rules of law require information to be in writing,
given, signed, original, or retained, the requirement is
met if the section is complied with;
(b) where rules of law provide consequences where the
information is not in writing given, signed, original, or
retained, the consequences are avoided if the section is
complied with; and
(c) where rules of law provided consequences if the
information is in writing given signed, original or
290
The reasons to include particular rules on public bodies are to ensure their authority to use electronic
records, to protect them against unwitting consent to the use of such records, and to permit them
expressly to impose technical requirements on incoming electronic records to promote interoperability
of systems and the reliability of the records. See section XX .
291
Enacting countries can create the list suits them. The list might exclude private bodies doing public
functions, like a Law Society. Considering state-owned corporations and entities that are agents of the
state, may be convenient to be avoiding doubt by designating entities as public bodies by regulation.
292
Enacting jurisdictions will choose the usual term in their law. This is needed where the Crown (etc)
is not bound by legislation unless it is mentioned expressly. The statute generally applies to everyone
subject to the law of the jurisdiction, unless there is an express exemption.
293
Information here is likely to be interpreted as included recorded speech. Enacting countries may
wish to exclude this, or to restrict speech to that which is processed by an automated voice recognition
system

134
 retained, the consequences are achieve if the section is
complied with.

7. Writing requirements
(1) A rule of law that requires information to be in writing or
to be given in writing is satisfied by information in
electronic form if the information is accessible so as to be
usable for subsequent reference.
(2) In subsection (1), giving information includes, but is not
limited to, the following
(a) making an application;
(b) making, filing or lodging a claim;
(c) giving, sending or serving a notification;
(d) filing or lodging a return;
(e) making a request;
(f) making a declaration;
(g) filing, lodging or issuing a certificate;
(h) making, varying or canceling an election;
(i) filing or lodging an objection;
(j) giving a statement of reasons.

(3) Information in electronic form is not given unless the

information is capable of being retained by the person to
whom it is given.294

8. Prescribed forms
(1) A rule of law that requires a person to provide information in a
prescribed non-electronic form to another person is satisfied by the
provision of the information in an electronic form that is

(a) organized in the same or substantially the same way as the

prescribed non-electronic form;
(b) accessible to the other person so as to be usable for subsequent
reference; and
(c) capable of being retained by the other person.

9. Signature requirements
(1) If a rule of law requires the signature of a person, that
requirement is met by an electronic signature.295
294
This section is intended to interpret a rule of law saying “give” or “send” or “deliver” information in
writing (like a notice). The point is that the information has to be put within the control of the
addressee.
295
Enacting countries may wish to give power to their regulation making authority to prescribe that
signatures for particular purposes must be as reliable as appropriate in the circumstances, including any
relevant agreement, or that they must use a method specified in the regulation. If a reliability test is

135
 (2) Parties may agree to use a particular method of electronic
signature, unless otherwise provided by law.296

10. Requirement to produce an original document

A rule of law that requires a person to produce, examine or keep
an original document is satisfied if the person produces,
examines or retains the document in electronic form, if:

(a) having regard to all the relevant circumstance, the method of

generating the electronic form of the document provided a
reliable means of assuring the maintenance of the integrity of
the information contained in the document; and
(b) in a case where an original document is to be given to a person,
the document given to the person in electronic form is accessible
so as to be usable for subsequent reference and capable of being
retained by the person.297

11. Keeping written documents298

A rule of law that requires a person to keep information that is either
in writing or in electronic form is satisfied by keeping the information
in electronic form, if:

(a) having regard to all the relevant circumstances when the

electronic form of the document was generated, the
method of generating the electronic form of the
document provided a reliable means of assuring the
maintenance of the integrity of the information contained
in the document; and
(b) when the electronic form of the document was generated,
the information contained in the electronic form of the

wanted, it may be expressed in the language of Articles 6 (1) through (4) of the UNCITRAL Model
Law on Electronic Signatures.
296
The Experts‟ Group recommended that electronic signatures in general should not have to meet a
test of their reliability. Handwritten signatures are subject to no such test. If a person who wants to
rely on a signature proves the identity of the person who signed and the signer‟s intention to be linked
to the information that should be sufficient to meet a requirement that information must be signed.
Having to show in addition that the signature method was appropriately reliable adds uncertainty to
proof that would suffice to support a manual signature.

297
This provision may not be needed for the law of evidence if the enacting country has made other
rules about electronic evidence, and might then be expressly excluded.
298
Need a note about risks of electronic storage – difficulty and expense of keeping hardware and
software current.

136
 document is accessible so as to be usable for subsequent
reference to any person entitled to have access to the
information or to require its production.299

12. Integrity of information

For the purpose of section 10 and 11 , the integrity of information in a
document is maintained if, and only if, the information has remained
complete and unaltered, apart from:

(a) the addition of any endorsement; or

(b) any immaterial change;

which arises in the normal course of communication, storage or display

13. Recognition of foreign electronic documents and signatures

In determining whether or to what extent information in electronic
form is legally effective, no regard shall be had to the location where
the information was created or used, or to the place of business of its
creator.300

14. Government uses public bodies

(1) If a public body has power to create, collect, receive, store,
transfer, distribute, publish, issue or otherwise deal with information
and documents, it has the power to do so electronically.

(2) Subsection (1) is subject to any rule of law that expressly prohibits
the use of electronic means or expressly requires them to be used in
specified ways.

(3) For the purpose of subsection (2), a reference to writing or

signature does not in itself constitute an express prohibition of the use
of electronic means.

(4) Where a public body consents to receive any information in

electronic form, it may specify:

(a) the manner and format in which the information shall be

communicated to it;
(b) the type or method of electronic signature required, if
any;
299
Government departments responsible for record retention rules may wish to consider if additional
rules are needed for retaining electronic records for their purposes. Such additional rules would
supplement this section because of s.14 of this Act.
300
If the enacting country has imposed a reliability test on electronic signatures, then this section
should include paragraphs (3) and (4) of the UNICTRAL Model Law on Electronic Signatures.

137
 (c) control processes and procedures to ensure integrity,
security and confidentiality of the information;
(d) any other attributes for the information that are currently
specified for corresponding information on paper.
(5) The requirements of subsections 7 (1) and (3) and section 8 also
apply to information described in subsection (4).

(6) A public body may make or receive payment in electronic form

by any manner specified by the public body and approved by the
Minister of Finance or other responsible authority .

15. Exclusion301
This Act does not apply to:

(a) the creation or transfer of interests in real property;

(b) negotiable instruments302
(c) documents of title
(d) wills and trusts created by will 303
(e) any class of documents, transactions or rules of law excluded by
regulation under this Act.

16. Certain other laws not affected

301
The statute can be given a narrower or wider scope than the “transactions” referred in its title.

A: It can be limited to commercial transactions only. Footnote **** of the U.N. Model
Law on Electronic Commerce indicates usefully the scope of such an application.

The Advantages of such a limit are that it does not permit the use of electronic
communications in areas where many countries are finding them useful, such as
communications between citizen and government, and that it is sometimes hard to
know if a particular transaction is commercial: consider the provision of services to
government or to a not-for-profit organization.

B: The scope can be expanded to all information or documents, not just (commercial)
transactions. As a drafting alternative, the expanded statute could focus not on
transactions or communications but on electronic records. For example, most
Canadian statutes discuss electronic documents or information. The advantages of
such an expansion are that it is very flexible; it avoids having to know exactly what a
transaction is: consider applications, or the retention of a document. To extent that the
main body of incidents not a transaction relates to dealing with government, and the
Act contains rules about public bodies‟ communication – inbound and outbound – then
there may be no particular risk in expanding scope to all communications. Risks can
be dealt with by exempting particularly risky documents of transactions from the scope
and by ensuring that parties to communications have a choice whether to accept them
in electronic form, i.e. that they can opt into the electronic system.
302
This means that bills of lading cannot be done electronically under this Act. To extend the statute to
transport documents one would need express legislative authority, not necessarily in this Act.
303
Probate documents are not listed here because they are issued by a public body – a court – which
will determine under section 14 whether and how they may be created and submitted electronically.

138
(1) Nothing in this Act limits the operation of any other rule of law
that expressly authorizes, prohibits or regulates the use of information in
electronic form, including a method of electronic signature.

(2) Nothing in this Act limits the operation of any other rule of law
requiring information to be posted or displayed in a specified manner or
requiring any information to be transmitted by a specified method.

(3) A reference of writing or signature does not in itself constitute a

prohibition for the purpose of subsection (1) or a legal requirement for the
purpose of subsection (2).

17. Consent
(1) Nothing in this Act requires a person to use, provide or accept
information in electronic form without consent, but a person’s consent to do
so may be inferred from the person’s conduct.304
(2)Despite subsection (1), the consent of a public body use the term also used
in s. 14 for government to accept information in electronic form may not be
inferred from its conduct but must be expressed by communication accessible
to the public or to those likely to communicate with it for particular
purposes.305

(3)Nothing in this Act authorizes a public body use the term also used in s. 14
for government to require any person to use, provide or accept information
in electronic form without consent.306

18. Contracts
(1)Unless the parties agree otherwise, an offer, the acceptance of an offer or
any other matter that is material to the formation or operation of a contract
may be expressed:

304
This provision allows a person to set conditions on acceptance, based on readiness or estimations of
compatibility of formats or reliability standards, or to accept electronic communication for some
purposes and not for others. It does not prevent a person from being bound by other means – such as
by contract‟ to communicate electronically.
305
This provision allows government to opt into electronic communications gradually, department by
department, agency by agency, or even program. Some enacting countries may wish to compel all
parts of government to be ready for electronic communications at the same time. Such countries may
state that the consent of government is not needed for electronic communications to it to be legally
effective. Nevertheless governments will have legitimate reasons to insist on standards of
interoperability, reliability, proof of delivery and the like. These are now dealt with expressly in
section 14 of the Act.
306
While “nothing in this Act” authorizes a government to require the use of electronic
communications, governments may have or give themselves such authority by other means. It is
generally thought inappropriate to do so in generally applicable legislation.

139
 (a)
by means of information in electronic form; or
(b)
by an act that is intended to result in electronic communication,
such as touching or clicking on an appropriate icon or other
place on a computer, or by speaking.
(2)A contract is not invalid or unenforceable by reason only of being
in electronic form.

19. Automated contracts

A contract may be formed by the interaction of computer programs or other
electronic means used to initiate an act or to respond to electronic, in whole or
in part, without review by an individual at the time of the response or act.

20. Mistakes in partly-automated transactions

(1) An electronic transaction between an individual and another person’s
automated source of information has no legal effect if,

(a) the individual makes a material error in electronic information or

an electronic document used in the transaction;
(b) the automated source of information does not give the individual
an opportunity to prevent or correct the error;
(c) on becoming aware of the error, the individual promptly notifies
the other person; and
(d) in a case where consideration is received as a result of the error, the
individual, returns or destroys the consideration in accordance with
the other person’s instructions or, if there are no instructions, deals
with the consideration in a reasonable manner, and does not benefit
materially by receiving the consideration.
(2)This section does not limit the operation of any other rule of law
relating to mistakes.

21. Expressions of will

As between the originator and the addressee of a communication in
electronic form, a declaration of will or other statement shall not be denied
legal effect, validity or enforceability solely on the grounds that it is in
electronic form.307

22. Time and place of sending and receiving electronic communications

(1) An electronic communication is sent when it enters an information
system outside the sender’s control or, if the sender and the addressee use
the same information system, when it becomes capable of being retrieved
and processed by the addressee.

307
This section applies to declarations of intention outside the context of a transaction, such as
declarations of trust, gifts without delivery, and the like. The usual law about their validity and
enforceability continues to apply.

140
 (2) An electronic communication is presumed to be received by the
addressee,

(a) if the addressee has designated or uses an information system

for the purpose of receiving communications of the type sent,
when it enters that information system and becomes capable of
being retrieved and processed by the addressee; or
(b) if the addressee has not designated or does not use an
information system for the purpose of receiving
communications of the type sent, or if the addressee has
designated or used such a system but the communication has
been sent to another system, when the addressee becomes aware
of the communication in the addressee’s information system
and it becomes capable of being retrieved and processed by the
addressee.

(3) Subsections (1) and (2) apply unless the parties agree otherwise

(4) An electronic communication is deemed to be sent from the

sender’s place of business and received at the addressee’s place of business.

(5) If the sender or the addressee has more than one place of business, the
place of business for the purpose of subsection (4) is the one with the closest
relationship to the underlying transaction to which the electronic
communication relates or, if there is no underlying transaction, the person’s
principal place of business.

(6) If the sender or addressee does not have a place of business, the person’s
place of habitual residence is deemed to be the place of business for the
purposes of subsection (4).

23 Attribution of electronic communications

An electronic communication is that of the person who sends it, if it is sent
directly by the person or by an information system programmed by or on
behalf of the person to operate automatically.

24. Consumer protection308

(1)A person using electronic communications to sell goods or services to
consumers shall provide accurate, clear and accessible information about
themselves, sufficient to allow:

308
These provisions could be put in a general statute about consumer protection. Otherwise it may be
necessary to sate how one decides that someone is a consumer. The provisions are adapted from the
OECD Guidelines for Consumer Protection in the context of Electronic Commerce.

141
 (a) the legal name of the person, its principal geographic address,
and an electronic means of contact or telephone number;
(b) prompt, easy and effective consumer communication with the
seller;
(c) service of legal process.

(2)A person using electronic communications to sell goods or services to

consumers shall provide accurate and accessible information describing the
goods or services offered, sufficient to enable consumers to make an informed
decision about the proposed transaction and to maintain an adequate records
of the information.

(3)A person using electronic communications to sell goods or services to

consumers shall provide information about the terms, conditions and costs
associated with a transaction, and notably

(a) terms, conditions and methods of payment; and

(b) details of and conditions related to withdrawal, termination,
return, exchange, cancellation and refund policy information.

25. Regulation-making powers

The regulation –making authority may make regulations:

(a) to designate an entity as a public body;

(b) to provide that electronic signatures for specified purposes shall
be as reliable as appropriate for those purposes;309
(c) to provide that electronic signatures for specified purposes shall
be created by specified means.
(d) To provide formats by which information may be
communicated electronically, whether or not there exist
prescribed non-electronic forms.
(e) To exclude classes of transactions, documents, or rules of law
from the application of this Act;
(f) For any other purpose for the more effective achievement of the
objects of the Act.

309
If such a regulation is made, it may be helpful to incorporate into the regulation, or the statute, the
tests of reliability in the UNCITRAL Model Law on Electronic Signatures, Articles 6.

142
APPENDIX II1: COMPUTER AND COMPUTER RELATED BILL

COMPUTER AND COMPUTER RELATED CRIMES BILL

PART I
INTRODUCTION
Section
1. Short title
2. Object
3. Definitions
4. Jurisdiction

PART II
OFFENCES
5. Illegal access
6. Interfering with data
7. Interfering with a computer system or systems
8. Illegal interception of data, etc.
9. Illegal devices
10. Child pornography

PART III

PROCEDURAL POWERS
11. Definitions for this Part
12. Search and seizure warrants
13. Assisting police
14. Record of and access to seized data
15. Production of data
16. Disclosure of stored traffic data
17. Preservation of data
18. Interception of electronic communications
19. Interception of traffic data
20. Evidence
21. Confidentiality and limitation of liability

143
 COMPUTER AND COMPUTER RELATED CRIMES BILL

AN ACT to combat computer related crime and to facilitate

the collection of electronic evidence.

PART I

INTRODUCTION

Short title 1. This Act may be cited as the Computer and

Computer Related Crimes Act

Object 2. The object of this Act is to protect the integrity of

computer systems and the confidentiality, integrity
and availability of data, to prevent abuse of such
systems and to facilitate the gathering and use of
electronic evidence.

Definitions 3. In this Act, unless the contrary intention appears:

“Computer data” means any representation of facts,

information or concepts in a form suitable for processing
in a computer system, including a program suitable to
cause a computer system to perform a function;

“Computer data storage medium” means any article or

material (for example, a disk) from which information is
capable of being reproduced, with or without the aid of
any other article or device;

“Computer system” means a device or a group of inter-

connected or related devices, including the Internet, one
or more of which, pursuant to a program, performs
automatic processing of data or any other function:

“service provider” means:

(a) a public or private entity which provides to users
of its services the ability to communicate by means
of a computer system; and
(b) any other entity that processes or stores computer
data on behalf of that entity or those users.

“traffic data” means computer data:

144
 (a) that relates to a communication by means of a
computer system; and
(b) is generated by a computer system that is part of
the chain of communication; and
(c) shows the communication’s origin, destination,
route, time date, size, duration or the type
underlying services.

Jurisdiction 4. This Act applies to an act done or an omission made:

(a) in the territory of enacting country ; or
(b) on a ship or aircraft registered in enacting
country ; or
(c) by a national of enacting country outside
the jurisdiction of any country; or
(d) by a national of enacting country outside
the territory of enacting country , if the
person’s conduct would also constitute an
offence under a law of the country where
the offence was committed.310
PART II

OFFENCES

Illegal access 5. A person intentionally, without lawful excuse or

justification, accesses the whole or any part of a computer
system commits an offence punishable, on conviction, by
imprisonment for a period not exceeding period , or a fine
not exceeding amount , or both.

Interfering 6. (1) A person who, intentionally or recklessly, without lawful

with data excuse or justification, does any of the following acts:

(a) destroys or alters data; or

(b) renders data meaningless, useless or ineffective; or
(c) obstructs, interrupts or interferes with the lawful
use of data; or
310
The nature of cyber crime is such that it is important to have an extended jurisdictional basis for
such offences, as often acts committed in the territory of one jurisdiction may have a substantial impact
on other jurisdictions. Some countries can address this issue through case law that interprets
“territorial jurisdiction” broadly to include situations where there is a “real and substantial link” to that
jurisdiction albeit elements of the offence may have been committee elsewhere. In other countries the
legislation specifically provides that jurisdiction may be assumed where there is one substantial link to
be country, which term is broadly defined. Whichever approach is adopted, it is important that
countries consider the question of jurisdiction carefully and adopt provisions that will ensure no safe
haven for those who commit cyber crime.

145
 (d) obstructs, interrupts or interferes with any person
in the lawful use of data; or
(e) denies access to data to any person entitled to it;

commits an offence punishable, on conviction, by imprisonment

for a period not exceeding period , or a fine not exceeding
amount , or both.

2. Subsection (1) applies whether the person’s act is of

temporary or permanent effect.

Interfering 7. (1) A person who intentionally or recklessly, without

with lawful excuse or justification:
Computer
system
(a) hinders or interferes with the functioning of a
computer system; or
(b) hinders or interferes with a person who is lawfully
using or operating a computer system

commits an offence punishable, on conviction, by imprisonment

for a period not exceeding period , or a fine not exceeding
amount , or both.
In subsection (1), “hinder” in relation to a computer system,
includes but is not limited to:-
a) cutting the electricity supply to a computer system;
b) causing electromagnetic interference to a computer
system;
c) corrupting a computer system by any means; and
d) inputting, deleting or altering computer data.

Illegal 8. A person who, intentionally without lawful excuse or

Interception justification, intercepts by technical means:
of data
a) any non-public transmission to, from or within a
computer system; or
b) Electromagnetic emissions from a computer system
that are carrying computer data,
commits an offence punishable, on conviction, by
imprisonment for a period not exceeding [period], or a
fine not exceeding [amount], or both.
Illegal 9. (1) A person commits an offence if the person:
devices (a) intentionally or recklessly, without lawful excuse
or justification, produces, sells, procures for use,
imports, exports, distributes or otherwise makes

146
 available:

(i) a device, including a computer program,

that is designed or adapted for the purpose
of committing an offence against section 5,
6, 7 or 8; or

(ii) a computer password, access code or

similar data by which the whole or any part
of a computer system is capable of being
accessed;
with the intent that it be used by any person for
the purpose of committing an offence against
section 5, 6, 7 or 8; or

(b) has an item mentioned in subparagraph (i) or (ii)

in his or her possession with the intent that it be
used by any person for the purpose of committing
an offence against section 5, 6, 7 or 8.
(2) A person found guilty of an offence against this
section is liable to a penalty of imprisonment for a period not
exceeding period , or a fine not exceeding amount , or both.

(3) Where a person possesses more than number to

be inserted item(s) mentioned in subparagraph (i) or (ii), a court
may, having regard to all the circumstances, infer that the
person possesses the item with the intent with the intent that it
be used by any person for the purpose of committing an offence
against section 5, 6, 7 or 8 311

Child 10.(1) A person who, intentionally, does any of the following acts:
Pornography
(a) publishes child pornography through a computer
system; or
(b) produces child pornography for the purpose of its
publication through a computer system; or
(c) possesses child pornography in a computer system
or on a computer data storage medium;
311
Subsection 3 is an optional provision. For some countries such a presumption may prove very
useful while for others, it may not add much value, in the context of this particular offence. Countries
need to consider whether the addition would be useful within the particular legal context.

147
 commits an offence punishable, on conviction, by imprisonment
for a period not exceeding period or to a fine not exceeding
[amount]312 or both.313

(2) It is a defence to a charge of an offence under paragraph (1)

(a) or (1) (c) if the person establishes that the child pornography
was for a bona fide scientific, research, medical or law
enforcement purpose.314

(3) In this section:

“ Child pornography” includes material that visually depicts:

(a) a minor engaged in sexually explicit conduct; or
(b) a person who appears to be a minor engaged in sexually
explicit conduct; or
(c) realistic images representing a minor engaged in sexually
explicit conduct.
“minor” means a person under the age of x years.

“publish” includes:

(a) distribute, transmit, disseminate, circulate, deliver,

exhibit, lend for gain, exchange, barter, sell or offer for
sale, let on hire or offer to let on hire, offer in any other
way, or make available in any way; or
(b) have in possession or custody, or under control, for the
purpose of doing an act referred to in paragraph(a); or
312
The pecuniary penalty will apply to a corporation but the amount of the fine may be insufficient. If
it is desired to provide a greater penalty for corporations, the last few lines of subsection (1) could read:

“commits an offence punishable, on conviction:

a) in the case of an individual, by a fine not exceeding period ; or

b) in the case of a corporation, by a fine not exceeding a greater amount .

313
The laws respecting pornography vary considerably throughout the Commonwealth. For this
reason, the prohibition in the model law is limited to child pornography, which is generally the subject
of an absolute prohibition in all member countries. However a country may wish to extend the
application of this prohibition to other forms of pornography, as the concept may be defined under
domestic law.
314
Countries may wish to reduce or expand upon the available defences set out in paragraph 2,
depending on the particular context within the jurisdiction. However, care should be taken to keep the
defences to a minimum and to avoid overly broad language that could be used to justify offences in
unacceptable factual situations.

148
 (c) print, photograph, copy or make in any other manner
(whether of the same or of a different kind or nature) for
the purpose of doing an act referred to in paragraph (a).

PART III315

PROCEDURAL POWERS

Definitions 11. In this part:

for this Part “thing” includes:
(a) a computer system or part of a computer system;
and
(b) another computer system, if:
(i) computer data from that computer system
is available to the first computer system
being searched; and
(ii) there are reasonable grounds for believing
that the computer data sought is stored in
the other computer system; and
(c) a computer data storage medium

“seize” includes:

(a) make and retain a copy of computer data,

including by using on-site equipment; and
(b) render inaccessible, or remove, computer data in
the accessed computer system; and
(c) take printout of output of computer data.

Search and 12. (1) If a magistrate is satisfied on the basis of

Seizure information on oath affidavit that there are reasonable
grounds to suspect to believe that there may be in a place a
thing or computer data:

315
As most jurisdictions already have legislative or common law search powers, the purpose of
sections 11 and 12 is to illustrate the amendments necessary to existing powers to ensure that such
powers include search and seizure in relation to computer systems and computer data. The example
given is of necessary amendments to a sample general search warrant provision but similar
amendments would need to be made to all search powers, including powers of search on arrest, search
without warrant in exigent circumstances, and plain view seizures.

149
 (a) that may be material as evidence in proving an
offence; or
(b) that has been acquired by a person as a result of an
offence;

the magistrate may shall issue a warrant authorising a law

enforcement police officer, with such assistance as may be
necessary, to enter the place to search and seize the thing or
computer data.316

Assisting 13. (1) A person who is in possession or control of a

Police computer data storage medium or computer system that is the
subject of a search under section 12 must permit, and assist if
required, the person making the search to:

(a) access and use a computer system or computer data

storage medium to search any computer data
available to or in the system; and
(b) obtain and copy that computer data; and
(c) use equipment to make copies; and
(d) obtain an intelligible output from a computer system
in a plain text format that can be read by person.

(2) A person who fails without lawful excuse or

justification to permit or assist a person commits an
offence punishable, on conviction, by imprisonment for a
period not exceeding period , or a fine not exceeding
period , or a fine not exceeding amount , or both.317

Record of 14.(1) If a computer data has been removed or rendered

and access to inaccessible, following a search or a seizure under section 12, the
Seized data person who made the search must, at the time of the search or as
soon as practicable after the search:

(a) make a list of what has been seized or rendered

inaccessible, with the date and time of seizure; and
(b) give a copy of that list to:
316
The general search warrant provision is provided for illustration and is not intended as a
comprehensive model of general search powers. Some options have been included also where there
may be differing standards as between countries. These options are bracketed in bold and italics.
317
A country may wish to add a definition of “assist” which could include providing passwords,
encryption keys and other information necessary to access a computer. Such a definition would need to
be drafted in accordance with its constitutional or common law protections against self-incrimination.

150
 (i) the occupier of the premises; or
(ii) the person in control of the computer
system.

(2) Subject to subsection (3), on request, a police officer or

another authorized person must:

(a) permit a person who had the custody or control of the

computer system, or someone acting on their behalf to
access and copy computer data on the system; or
(b) give the person a copy of the computer data.

(3) The police officer or another authorized person may refuse

to give access or provide copies if he or she has reasonable
grounds for believing that giving the access, or providing the
copies:

(a) would constitute a criminal offence; or

(b) would prejudice:
(i) the investigation in connection with which
the search was carried out; or
(ii) another ongoing investigation; or
(iii) any criminal proceeding that are pending or
that may be brought in relation to any of
those investigations.

Production 15. If a magistrate is satisfied on the basis of an application by a

of data Police officer that specified computer data, or a printout or
other information, is reasonably required for the purpose of a
criminal investigation or criminal proceedings, the magistrate
may order that:

(a) a person in the territory of (enacting country) in control of a

computer system produce from the system specified
computer data or a printout or other intelligible output of
that data; and
(b) an Internet service provider in (enacting country) produce
information about persons who subscribe to or otherwise use
the service; and
(c) a person in the territory of (enacting country) who has access
to a specified computer system process and compile
specified computer data from the system and give it to a
specified person.318

318 As noted in the expert group report, in some countries it may be necessary to apply the same
standard for production orders as is used for a search warrant because of the nature of the material
that may be produced. In other countries it may be sufficient to employ a lower standard because the

151
Disclosure of Option 1
Stored traffic
data
16. If a police officer is satisfied that data stored in a computer system
is reasonably required for the purposes of a criminal investigation, the
police officer may, by written notice given to a person in control of the
computer system, require the person to disclose sufficient traffic data
about a specified communication to identify:

(a) the service providers; and

(b) the path through which the communication was
transmitted.

Option 2

16. If a magistrate is satisfied on the basis of an ex parte application by

a police officer that specified data stored in a computer system is
reasonably required for the purpose of a criminal investigation or
criminal proceedings, the magistrate may order that a person in control
of the computer system disclose sufficient traffic data about a specified
communication to identify:

(a) the service providers; and

(b) the path through which the communication was
transmitted.

Preservation 17. (1) If a police police is satisfied that:

of data
(a) data stored in a computer system is reasonably
required for the purposes of a criminal
investigation; and
(b) there is a risk that the data may be destroyed or
rendered inaccessible;

the police officer may, by written notice given to a person in

control of the computer system, require the person to ensure
that the data specified in the notice be preserved for a period of
up to 7 days as specified in the notice.

(2) The period may be extended beyond 7 days if, on an ex parte

application, a (judge) (magistrate) authorizes an extension for a
further specified period of time.

production process is less invasive that the search process. Countries may wish to consider whether
subparagraph 15(c ) is appropriate for inclusion in domestic law because while it may be of great
practical use, it requires the processing and compilation of data by court order, which may not be
suitable for some jurisdictions.

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Interception 18. If a magistrate or judge is satisfied on the basis of
of electronic information on oath affidavit that there are
communications reasonable grounds to suspect to believe that the
content of electronic communications is reasonably required for
the purposes of a criminal investigation, the
magistrate/judge [may] [shall]:
a) order an internet service provider whose service is
available in [enacting country] through application of
technical means to collect or record or to assist
competent authorities with the collection or recording
of content data associated with specified
communications transmitted by means of a computer
system; or;
b) authorize a police officer to collect or record that data
through application of technical means.

Interception 19. (1) If a police officer is satisfied that traffic data

of data associated with a specified communication is reasonably
traffic required for the purposes of a criminal investigation, the
police officer may, by written notice given
to a person in control of such data, request that person to:

(a) collect or record traffic data associated with a

specified communication during a specified
period; and
(b) permit and assist a specified police officer to
collect or record that data.
(2) If a magistrate is satisfied on the basis of
(information oath) (affidavit) that there are reasonable
grounds (to suspect) that traffic data is reasonably
required for the purposes of a criminal investigation, the
magistrate (may) (shall) authorize a police officer to
collect or record traffic data associated with a specified
communication during a specified period through
application of technical means.

Evidence 20. In proceedings for an offence against a law of

(enacting country), the fact that:

(a) it is alleged that an offence of interfering with a

computer system has been committed; and
(b) evidence has been generated from that
computer system;

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 does not of itself prevent that evidence from being
admitted.

Confidentia- 21. (1) An Interest service provider who without lawful authority
lity and discloses:
limitation of
liability
(a) the fact that an order under section 13, 15,
16, 17, 18 and 19 has been made; or
(b) anything done under the order; or
(c) any data collected or recorded under the
order;

commits an offence punishable, on conviction, by

imprisonment for a period not exceeding (period), or a
fine not exceeding (amount), or both.

(2) An Internet service provider is not liable under a civil or criminal law
of (enacting country) for the disclosure of any data or other
information that he or she discloses under sections 13, 15, 16, 18 or 19.

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 TABLE OF LEGISLATION

International Legal Instruments

Berne Convention for the Protection of Literary and Artistic Works (Paris Text
1971)

UN Convention for the International Sale of Goods 1980 (CISG)

UN Convention on the Use of Electronic Communications in International
Contracts, 2005

Tanzanian Statutes.
The Broadcasting Services Act, 1993
The Copyright and Neighbouring Rights Act, No. 7 of 1999 (Cap 218,
R.E.2002)
The Evidence Act, No. 6 1967 (Cap 6, R.E.2002)
The Fair Competition Act, No. 4 of 1994 (Cap 285, R.E.2002)
The Interpretation of Laws Act, No. 4 of 1996 (Cap 1 R. E. 2002)
The Law of Contract Act, 1961 (Cap 345, R.E.2002)
The Tanzanian Communications Regulatory Authority Act of 2003

Statutes from other Jurisdictions

Banker‟s Books Evidence Act, 1891 (India)

Bankers‟ Books Evidence Act 1879 (U.K)
Civil Evidence Act, 1968 (U.K.)
Criminal Justice Act 1988 (U.K.)
Electronic Communications Act, 2000 (U.K)
Evidence Act of Canada (RS. 1985 Chapter C. 5)
Indian Evidence Act, 1872
Information Technology Act, (Act No. 21) of 2000 (India)
Police and Criminal Evidence Act, 1984 (U.K.)
Reserve Bank of India Act, 1934
South African Computer Evidence Act, (No. 57), 1983
Uniform Electronic Evidence Act of 1999 (Canada)

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 TABLE OF CASES

Barker v. Wilson [1980] 2 All E.R. 80

Board v. Corgecot Cotton Company SA [1997] TLR 165
Brown v. Westminster Bank Ltd [1964] 2 Lloyd's Rep. 187
Cross v. Cross [1985] 1 All ER 87
Fennel v. First Step Designs, Ltd, 83 F. 3d 526 (1st Cir. 1996)
Grant and another v Southwestern and County Properties Ltd and Another
[1974] 2 All ER 455
Hahnemann University Hospital v. Dudnick, 292 N. J. Super. 11 (App. Div.
1996)
Jeremia Shemweta v. R. [1985] TLR 228 (HC)
L'Estrange v. Graucob [1934] 2 KB 394, 403
Lukas v. Williams & Sons (1892) 2Q.B. 113
Minnesota v. Philip Morris Inc No. CI-94-8565 (Dist. Ct. Minn.)
National Bank of Commerce v. Milo Construction Co. Ltd and two others,
Commercial Case No. 293 of 2002 (Unreported)
National Union Electric Corp. v. Matsushita Electric Industrial Co. 494 F.
Supp. 1257 (E. D. 1980)
R (on the application of Marper) v Chief Constable of South Yorkshire [2004]
4 All ER at 193
R v. Moore, Ex Parte Myers (1884) 10 VLR 322
R. v. Masquid Ali [1966] 1 Q. B. 688
R. v. Shepherd (1993) 1 All ER at 172
R. v. Spiby(1990) 91 Cr App R 186
Sattar v. Motorola, Inc. 138 F. 3d 1164 (7th Cir. 1998)
Saunders v. Anglia Building Society [1971] AC 1004
Shirin Rajabali Jessa v. Alipio Zorilla[1973] LRT No. 84
Tanzania Bena Co. Ltd v. Bentash Holdings Ltd, Commercial Case No. 71 of
2002 (Unreported)
The Statue of Liberty Case [1968] 1 W. L. R. 739

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The Statue of Liberty Owners of Motorship Sappord Maru v. Owners of Steam
Tanker Statue of Liberty [1968] 2 All ER 195 her [1980] TLR 59

Trust Bank Tanzania Ltd v. Le Marsh Enterprises Ltd and Others, Commercial
Case. No. 4 of 2000, H.C. (Com.Div) (unreported)

Yahaya Hussein v. Ohan Transport Ltd and Anot

157