Why courts have grown cautious of electronic evidence

Judges and magistrates have become cautious about admitting evidence stored electronically following technological advancements.
Most court users, including lawyers, State prosecutors, politicians and the public, are learning the hard way, after courts reject electronic evidence such as photos and videos.
High Court advocate Wahome Gikonyo says failure to comply with sections of the Evidence Act in producing electronic evidence will always see such evidence rejected.
Mr Gikonyo says courts have become wary of electronic evidence because it can be manipulated using technology.
“Having an audio recording, printed text messages, photos or a video of an incident on a compact or flash disk is not enough evidence to have a court rule in your favour. Most people do not comply with Section 106B and present the electronic evidence like any other piece of evidence,” says Mr Gikonyo.
EVIDENCE REJECTED
Among those who have seen their electronic evidence rejected is politician Martha Karua, also a High Court advocate, and Siaya politician William Oduol.
During the hearing of a petition in which Ms Karua challenged the election of Kirinyaga Governor Anne Waiguru, Justice Lucy Gitari prevented her from producing video evidence of alleged malpractices during the governorship election.
Ms Karua’s witness, Mr Kepha Sagana, testified that the video was recorded using his mobile phone, and that he copied it to a compact disc. But justice Gitari noted that the phone must have been connected to a computer for the video to be accessed and processed.
“Meaning the video was subjected to a process. The witness said nothing about his consent, and there was no certificate made as required by the Evidence Act," Ms Gitari said. She based her decision on Section 106 (b), on the admissibility of electronic records, and 107 (on burden of proof) of the Evidence Act.
“Electronic evidence falls in a special category requiring elaborate and special presentation showing how it was procured, serial number of the gadget that prepared it, make and whether the person who prepared it is qualified,” says Mr Gikonyo.
DIGITAL ERA
He adds that there must also be proof that the gadget used was in good working condition.
“We are in a digital era and manipulation is high. Voices and sounds can also be altered,” he noted.
While hearing the Siaya 2013 governorship election petition, Justice Aggrey Muchelule also held that there is a need (for the courts) to be careful when admitting electronic evidence. He stopped Mr Oduol’s chief campaign manager, Mr Augustine Ogae Adhola, from producing a compact disc as is evidence.
Mr Adhola testified he had personally shot a video of an IEBC agent holding marked ballot papers, which he was allegedly about to stuff in the ballot boxes.
He said he took the photo in the presence of the IEBC coordinator, the local OCS and a clerk using his Nokia E7 cell phone. He later transferred the video to a CD.
But Justice Muchelule found that the petitioner had not complied with provisions Section 106B of the Evidence Act.
“It cannot be ascertained that the computers used in the production of this CD were operating properly and, therefore, that its content is accurate. The reason why the particulars of the computers used in the production of the CD had to be given (and such particulars would include the make and the serial numbers) is so that, if it becomes necessary, one can trace the devices for audit purposes,” Justice Muchelule said.
INADMISSABLE
Justice William Musyoka also held that where recordings are t tabled in court, there must be a certificate.
“The recording must be accompanied by a certificate by a person who occupied a responsible position in relation to the operation of the recording device or the management surrounding the recording and transcription thereof,” he said.
He added that the certificate should define and describe the production and history of the recording up to the moment it is produced in court. To that extent the recoding is inadmissible.
He was deciding a case on the division of matrimonial property, where the man sought to play a recording of a telephone conversation between the couple. but he did not give details. The woman objected, and the court ruled in her favour on a legal technicality.
There was a transcript of the conversation in the Kikuyu language, and a translation in English.
But Justice Musyoka said there was no indication how the recording was done, by who, and how it was transcribed.
“The telephone numbers of the persons engaged in the alleged communication are also not identified,” he added.
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