By Counsel Collins Nkumbwa,
The Zambian legal system is premised on the concept of adducing evidence to establish the facts in issue as a matter of law and as a matter of fact. This requirement necessitates adducing evidence in court which takes various forms including electronic evidence. This paper has established that electronic evidence is admissible in Zambia and is characterised by a number of rules and regulations. This paper focuses on admissibility requirement of electronic evidence in Zambia and the legal framework. It establishes that the law provides that evidential weight should be attached to electronic evidence even though not produced in its original form provided it is certified or authenticated. The judicial precedents take cognisance of the weaknesses of this type of evidence as illustrated below.
Keywords – Electronic, Electronic Evidence, Data Message, Admissibility
INTRODUCTION
Electronic evidence is information of probative value stored or transmitted in binary form, including emails, digital photos, videos, server logs, and data on mobile devices. Electronic evidence can be defined as any data that can serve as evidence, regardless of whether it is stored on or generated, processed or transmitted by an electronic device.
It includes both content data, such as e-mails, text messages and photographs, and 'non-content data', such as subscriber and traffic data. Such data are held by a variety of service providers, including providers of electronic communications and internet services.
THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT
Section 2 of the Act defines the following key terms:
“electronic” in relation to technology, means having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
“Data message” means data generated, sent, received or stored by electronic, optical or similar means and includes, but is not limited to electronic data interchange (EDI), voice, stored record, electronic mail, mobile communications audio and video recordings.
“Electronic” in relation to technology, means having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
“Electronic communication” means a transfer of signs, signals, writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by radio, electromagnetic, photo-electronic or photo-optic system, but does not include: (a) direct oral communication; or (b) any communication made through a tone only paging device.
Section 8 of the Act provides - In any legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of a data message in evidence — (a) on the mere grounds that it is constituted by a data message; or (b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original format provided the substance is the same.
A data message made by a person in the ordinary course of business, or a copy or printout of, or an extract from, the data message certified to be correct by an officer in the service of that person, shall on its mere production in any civil, criminal, administrative or disciplinary proceedings under a written law, be admissible in evidence against a person and rebuttable proof of the facts contained in a record, copy, printout or extract.
Section 11(1) of the Act provides that subject to section 24, where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information and if - (a) considering all the relevant circumstances at the time that the data message was sent, the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document and at the time the data message was sent, it was reasonable to expect that the information contained therein would be readily accessible and usable for subsequent reference.
The judicial precedents in the Zambian legal system fortify the foregoing as follows:
JUDICIAL PRECEDENTS
1. Kenny Figo Nalr vs The People - The court had occasion to view the CCTV footage in this case and in their considered view, the footage had vivid images. They found that it could not have been difficult for PW2, PW3 and PW6 to recognise the appellant, whom they previously worked with, as the assailant. It is relevant evidence provided that that which is seen on camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend upon assessment of all relevant considerations, including the clarity of the recording, its length, and, where identification is in issue, the witness’s prior knowledge of the person said to be identified, in accordance with well-established principles. Where there is a recording, a witness has the opportunity to study again and again what may be a fleeting glimpse of a short incident. From the foregoing authority, a video recording of an incident can be as reliable as eyewitness testimony in identifying a suspect, if not more so. It was the court’s considered view that the CCTV footage in this case provided clear and compelling evidence of the appellant's identity and actions. The prosecution witnesses' identification from the footage was sufficient to establish the appellant's guilt. (Emphasis mine)
2. Ronald Chishala vs The People – The court found that the evidence of PW3 clearly showed that a foundation was laid before he switched on the phone, identified the number of the recording - 0000013 and the time and date of the phone. The court did not fault the learned Judge for admitting the recording evidence in light of the provisions of Section 8 of the Electronic Communications and Transactions Act which provides that: "8 (1) In any legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of data message in evidence - (b) If it is the best evidence that the person adducing It could reasonably be expected to obtain, on grounds that it is not in its original form..." (Emphasis mine)
3. Da-Cheng Wood Processing Company Limited Vs Pereka Nyirenda - The court considered Section 2 of the Electronic Communications and Transaction Act No 4 of 2021 which defines data and data message as: "data" means an electronic representation of information in any form; "data message" means data generated, sent, received or stored by electronic, optical or similar means and includes, but is not limited to electronic data interchange (EDI), voice, stored record, electronic mail, mobile communications audio and video recordings. The court also looked at the provisions of Section 8 and 9 of that Act which provides: "8. (1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if- (a) the integrity of the information from the time when it was first generated in its final form as a data message, or otherwise, has passed the assessment specified under subsection (2); and (b) that information is capable of being displayed or produced to the person to whom it is to be presented. (2) For the purposes of subsection (1)(a), the integrity of any information is assessed— (a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and anу change which arises in the normal course of communication, storage and display; (b) in the light of the purpose for which the information was generated; and (c) by having regard to other relevant circumstances. Section 9(1) was also considered whih provides that in any legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of a data message in evidence - (a)on the mere grounds that it is constituted by a data message; or (b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original format provided the substance is the same. (2) Information in the form of a data message shall be given due evidential weight. (3) In any legal proceedings, when assessing the evidential weight of a data message, regard shall be had to- (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other relevant factor (4) A data message made by a person in the ordinary course of business, or a copy or printout of, or an extract from, the data message certified to be correct by an officer in the service of that person, shall on its mere production in any civil, criminal, administrative or disciplinary proceedings under a written law, be admissible in evidence against a person and rebuttable proof of the facts contained in a record, copy, printout or extract." (Emphasis mine)
4. OTK Limited V Amanita Zambiana Limited, Diego Gan-Maria Casilli, Amanita Premium Oils Limited, Amanita Milling Limited - Section 8(4) of the Electronic Communications and Transactions Act allows for receipt and admission by the Court of a data message from a person other than an expert. To authenticate an item of evidence, the proponent must present proof that the article is what the proponent claims it is. This case was decided before the enactment of the new Electronic Communications and Transactions Act 2021. However, section 8 of the current Act is similar to the current Act to the holding in this case this position of the law as held in the case. (emphasis mine)
CONCLUSION AND RECOMMENDATION
Evidently, electronic evidence is admissible in Zambia and is given due weight by the courts taking into account the factors mentioned above. The proponent must present proof that the article is what the proponent claims it is. It is recommended that this type of evidence should be corroborated as it is prone to manipulation granted the advancement of artificial intelligence.
About Author
Counsel Collins Nkumbwa, Esq.
CIP, LL.B, LL.M, AHCZ. ASCZ, PhD Cand.
Lecturer of Law and Commissioner of Oaths
Principal Author’s Email – collinsnkumbwa4@gmail.com
REFERENCES
STATUTES
The Electronic Communications and Transactions Act No. 4 of 2021
CASES
Da-Cheng Wood Processing Company Limited Vs Pereka Nyirenda 2022/HP/1791
Kenny Figo Nalr vs The People Appeal No. 91/2023
Otk Limited V Amanita Zambiana Limited, Diego Gan-Maria Casilli, Amanita Premium Oils Limited, Amanita Milling Limited 2005/HPC/0199
Ronald Chishala vs The People Appeal No. 67/2020
ONLINE SORUCES
BRIEFING EU Legislation in Progress https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/690522/EPRS_BRI(2021)690522_EN.pdf
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