Cyberlaw, Cybercrime in Kenya - ICT & Telecommunications Law in ...

Is video or electronic evidence admissible in court in Kenya? If so, are there any special conditions governing the production of such evidence? Where the prosecution does not object to the production or the integrity of electronic evidence, can a court properly insist that any such conditions must still be met? A profile of two recent cases that shine the spotlight on one of the most contestable areas of legal practice: Republic vs Edward Kirui and Republic vs. Wilfred Machage & others

In Republic v Kirui, the High Court looks at dramatic news video footage of an apparent? shooting of civilians by anti-riot policemen and in Republic v Wilfred Machage & Others, the Nairobi Chief Magistrate?s Court considers the admissibility of archival media footage apparently capturing politicians uttering allegedly hateful and inciting words. In both cases, the accused persons are acquitted ? in Kirui?s case the video evidence was admitted but his acquittal was based on other evidence, and in Machage?s case the video evidence is found to be in-admissible and the remaining evidence is found not to be sufficient to sustain a conviction. Before we look at the facts and findings in these two cases, some commentary about the law on electronic evidence in Kenya: The production of electronic evidence ? particularly video footage, voice or sound recordings, computer-generated print-outs of emails, etc, continues to be one of the most misunderstood areas of legal practice. Even though recent amendments to the Kenya Communications Act, 1998 (now the Kenya Information and Communications Act, 1998) and the Evidence Act removed most of the uncertainties regarding the admissibility of electronic evidence, some doubts linger about whether and how evidence captured, preserved and/or produced by electronic means is to be produced in court. At the heart of some of these doubts are the following concerns: -?????? Electronic evidence is highly volatile. It can be changed or manipulated much more easily than paper or other forms of evidence. -?????? Compared with paper or other forms of exhibit evidence, it is relatively more difficult to detect and trace the signs of tampering with electronic evidence. -?????? Computer equipment runs on an artificial intelligence which receives, interprets and applies human commands. This artificial intelligence has been known to go awry (system crashes, viruses, botnets?), compromising the integrity of the material captured, preserved or presented using the equipment. -?????? The capturing, preserving and presenting of evidence in electronic form requires a measure of technical knowledge in the operation of the electronic equipment. Many law enforcement officers may not have the knowledge, skills and forensic tools to handle such equipment or to deal with such evidence. Electronic evidence is usually the best possible evidence First of all, let us dispose of the mis-educated and exclusionary approach that ?video evidence, tape recording, emails, electronic documents are not admissible in evidence?. The answer to this is the general rule of evidence that any kind of evidence is admissible in court to prove any matter in issue as long as it has probative value (which is lawyer-speak for ?as long as it is relevant to the determination of the dispute?). Therefore, electronic evidence, and indeed any other form of evidence, is not precluded from admissibility merely on the basis of the manner in which it is collected, preserved or presented. All evidence is admissible, as long as its probative value is established and the court is satisfied that it was properly collected and preserved. In fact, in many cases, electronic evidence usually has the highest probative value ? imagine if in a murder case the court was shown video footage of the murder. Perhaps that?s the reason why the opposing party/lawyer frequently objects to its production. The Evidence Act (Cap. 80) Kenya?s Evidence Act (section 106B) provides for the procedure and the conditions that need to be met in order for information contained in an electronic record to be admitted as evidence in court proceedings. These conditions are in the nature of statements made in evidence for the purpose of satisfying the court as to the integrity and reliability of the electronic record being produced in evidence. They include satisfying the court that: ?????? The electronic record was produced, fed into or derived from the computer in the ordinary course of business by a person having lawful control over the computer; ?????? The computer was operating properly or if there was any way in which it was not operating properly, then such malfunction was not of such a nature as to affect the electronic record or the accuracy of its content. The section further provides that these conditions may be satisfied by the production of a ?certificate? signed by a ?a person occupying a responsible position in relation to the operation of the relevant device or the manager of the relevant activities? identifying the electronic record and the manner in which it was produced and/or giving the particulars of any device involved in the production for the purpose of showing that the record was produced by a computer. Republic v Wilfred Machage, Fred Kapondi Chesebe & Christine Nyagitha Miller Nairobi Chief Magitrate?s Court Criminal Case No. 1140 of 2010 Judgment: December 14, 2011 G.C. Mutembei, Chief Magistrate


News video 'Hate speech' courtesy of NTV, YouTube The three accused persons were an Assistant Minister (also an MP) in the government of Kenya, a member of parliament and a political activist respectively. They were charged with the offence of ?hate speech contrary to section 13(1)(a) as read with subsection (2) of the National Cohesion and Integration Act No. 12 of 2008?with intention to stir up ethnic hatred?. The charge related to words allegedly uttered by the accused at a political rally on June 9, 2010. According to the prosecution, Geoffrey, a journalist from K24, a local television station, had been at the event in the company of Michael, a cameraman, and they had recorded video footage which included the statements uttered by the accused persons. Geoffrey had later transferred the footage to a ?Mac computer? at K24, edited it and used it to run a news story that evening. On August 2, 2010, K24?s management authorized for the footage and the news story to be released to investigators. The footage that was ultimately produced in court was a 40-minute archival footage which Geoffrey told the court had been generated by K24?s archives department and had been edited out of the original footage recorded by Michael. Michael, who was also called as a prosecution witness, corroborated Geoffrey?s evidence and stated that his (Michael?s) work had been only to record the video and monitor sound quality and he could not relate to the court from his own memory what the accused persons had said during the event. The Court made the following findings: 1.??? The electronic evidence in the form of the video footage that the prosecution intended to rely on was not made by Geoffrey, who was producing it in court. Rather, as Geoffrey stated, the footage had been extracted and edited in his absence by other persons from original footage recorded by Michael, the other witness. This would mean that Geoffrey?s evidence on the fact as to how the footage was produced was hearsay evidence as the maker of the record was not called as a witness. 2.??? Further, the prosecution had failed to show to the court a certificate signed by a person having a responsible position in relation to the operation of the devices that produced the footage or the activities relating to the production: a.??? To identify the electronic record containing the statements which the accused persons were said to have uttered and to describe the manner in which the record was produced; or b.??? To give the particulars of any device involved in the production of the electronic record in order to show that the record was produced by a computer; c.???? To deal with any other matters to which the conditions mentioned in section 106B of the Evidence Act relates. 3.??? Therefore, the contents of the electronic recording had not been proved in accordance with the Evidence Act and the video footage was therefore not admissible in evidence. 4.??? Without the electronic record, the only other evidence against the accused persons was the eyewitness testimony of Geoffrey and Michael. From their own memory, these witnesses could not tell the court whether they had heard the accused persons utter the hateful and inciting statements alleged by the prosecution. 5.??? The prosecution had failed and/or neglected to comply with clear provisions of the Evidence Act on the production of Electronic Evidence. This evidence was crucial and its omission was fatal to the prosecution?s case. All three accused persons found not guilty and acquitted. Republic v Edward Kirui [2010]eKLR High Court at Nairobi (Nairobi Law Courts) Criminal Case No. 9 of 2008 This was a case in which a police officer was charged with murder and which generated a considerable amount of publicity, being one of the few cases based on events that were said to have occurred during the period of violence and chaos that followed Kenya?s General Election of December 2007. The accused person, a police officer, was charged with the murder of two young men, George Onyango and Ismail Chacha, who were said to have been shot dead on January 16, 2008 as they protested the outcome of the general election in Kisumu City.? Part of the evidence adduced by the prosecution was news video footage which captured a standoff between anti-riot police and protesting civilians. In the footage, a policeman is seen covertly approaching group of civilians before breaking his cover and firing in their direction. Two of the civilians then lie on the ground, apparently injured, and the police office is seen approaching them and then kicking at one of them before discharging another round from his gun at an unseen target. The footage had been taken by Baraka, a cameraman at KTN, a local television station, and adduced in court by Peter, an editor with the network. The footage was produced in two versions, one running at normal speed and the other one in slow motion. A number of prosecution witnesses stated that the police officer captured in the footage was the accused person. The Court admitted the video evidence and based on it and the testimony of the witnesses, it was satisfied that the accused was the person in the video. However, a crucial discrepancy arose in the evidence between the identity of the gun carried by the accused person and the firearm given to the ballistics officer. According to the accused person, he had been issued with a firearm bearing the serial number 23008378. This, according to the police officer in charge of the police station where the accused person was stationed, was the serial number on the firearm recovered from the accused. On the other hand, the firearm examined by the ballistics expert, and which was said by the expert to have been the one that fired the bullets retrieved from the body of one of the victims, bore the serial number 3008378. The court cross-referred the evidence to satisfy itself that the discrepancy was not out of a typographical error. Previously, in a case also involving a discrepancy in gun serial number - Eric Akeyo Otieno v Republic [2008]eKLR, - in which the High Court had found that the discrepancy had been out of an honest and reasonable error, the Court of Appeal had declined to affirm the conviction of the accused person after it observed that the discrepancy gave rise to a reasonable doubt about whether it was the accused person?s gun that had been used to shoot the victim in that case. Based on the authority of the decision of the Court of Appeal, the Court in this case stated that it had no choice but to find that the prosecution had failed to establish that the fatal bullet had been fired from the gun issued to the accused person. As Justice Ochieng observed: ??even though all the other evidence adduced shows that the accused was positively identified at the scene of the shooting incident? and even though he was captured on film as he appeared to shoot two victims; this court is unable to reconcile those facts with the finding by the Firearms Examiner who concluded that the fatal bullet was discharged from a gun that was different from the one which the accused had?. The accused person was found not guilty and acquitted.

Source: http://michaelmurungi.blogspot.com/2012/03/admissibility-of-electronic-evidence-in.html

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