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Electronic Contracting in Tanzania (Presentation)

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Linda Kamuzora

The document discusses electronic contracts in Tanzania and the current legal issues surrounding them. It outlines Tanzania's Electronic Transactions and Communications Bill from 2013, which aims to facilitate e-commerce but has limitations. Currently, electronic evidence is only admissible in banking civil cases and criminal proceedings. A landmark 2007 court case extended the definition of bankers' books to include computer printouts, helping admission of electronic evidence grow. However, gaps around full recognition and validity of electronic contracts and signatures remain as the bill does not amend all relevant laws.

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Electronic Contracts in Tanzania A Present Legal Battle 21/08/2014 Presentation by Linda Kamuzora Legal Intern Barclays Bank Tanzania
Contents Review on the Law of Contract. Proof of a contract Intention to create legal relations. What is an Electronic Contract? Legal position on Electronic Contracts in Tanzania. Electronic Communications and Transactions Act 2002 (South Africa). 21/08/2014
Kenya Communication Amendments Act No.1 2008. Tanzania Electronic Transactions and Communications Bill 2013. 21/08/2014
Review: What is a contract? A legally binding agreement made between two parties or more, which is enforceable at law. a promise or set of promises for the breach of which the law in some way or an agreement between two or more persons which is intended by them to be legally enforceable. 21/08/2014
An agreement is further defined under s2(1) of the LCA Cap.345 to mean every promise or set of promises, forming the consideration for each other. Can be either Written or Orally spoken. Covered under The Law of Contract, Cap.345 R.E 2002 21/08/2014
A contract; Terms of a contract 21/08/2014 OFFER ACCEPTANCE CONSIDERATIO N
Proof of A Contract Intention to Create Legal Relations: An agreement made within a business context is presumed to be legally binding unless evidence can show different intent. -Balfour v. Balfour (1919) -ESSO Petroleum Co. Ltd V. Commissioners of customers of customs and Excise (1976) 21/08/2014
Electronic Contracts They are defined as; Contracts made using computers, either via e-mail or the Internet, or that involve computer related products, such as databases and software. any kind of contract formed in the course of e- commerce by the interaction of two or more individuals using electronic means, such as e-mail, the interaction of an individual with an electronic agent, such as a computer program, or the interaction of at least two electronic agents that are programmed to recognize the existence of a contract. 21/08/2014
Used in commercial transactions, key examples being Banks, Mobile Banking, online shopping and many others. Upon introduction in Tanzania, has led to the easy command of transactions between entities since it commands flexibility in practise. 21/08/2014
M-banking Mobile financial services delivered by way of mobile networks using mobile phones. Bank Of Tanzania Act 2006 s.6 (The BOT Act) Tanzania Communication and Regulatory Authority (TCRA) Tanzania Communication Regulatory Act Authority Act 2003 (the TCRAA) Electronic and Postal Communications (Licensing) Regulations (EPCR) 2011 21/08/2014
Electronic Payment Schemes Guidelines 2007 (the EPSG) Mobile Payments Regulations (Draft) (MPR) Terms & Conditions for Agents & Customers 21/08/2014
Advantages Current wave of the future globalisation economies Easy replacement of paper documents Time efficient Flexible-not fixed Few costs incurred 21/08/2014
Challenges facing E- Contracts in Tanzania Current legal position Poor bargaining power Impaired freedom of contract 21/08/2014
Legal Position on E-Contracts in Tanzania UNCITRAL MODEL LAW on Electronic Commerce 1996 Law of Evidence Act 1875 (India) = Tanzania Law of Evidence Act Bankers book under s78 & 79 of the Law of evidence act= connotes book used in the ordinary business of a bank Asylum for Idiots v. Handy Sides, 22, TLR 21/08/2014
S.78 & 79 Tanzania Evidence Act s.78. (1) A copy of an entry in a bankers book shall not be received in evidence under this Act. 79 (1) A copy of an entry in a bankers book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct. 21/08/2014
Prior 2007, electronic documents or data messages were not admissible under the legal system in Tanzania. Most laws advocated for original evidence Best Evidence Rule-excluded the admissibility In Lazarus Mirisho Mafie & Another vs. Odilo Gasper Katenga, Comm Case No.10 21/08/2014
Makaramba J, refused to embark on judges made law & argued the business of creating rules and admissibility and validity of electronically stored information should be left to legislature. Furthermore, s3 & s36 of the Amending Act No.2 of 2006- amended s78 by adding s.78A of the Law of Evidence Act. Tanzania Cotton Marketing Board vs. Cogecot Cotton Company ,SA (1997) 21/08/2014
Exim Bank (T) Ltd v. Kilimanjaro Coffee Company Limited (2011) However, in the landmark case of Trust Bank Tanzania Ltd v Le Marsh Enterprises Ltd and Others (2007), the High Court of Tanzania considered the admissibility of computer evidence. Issue: Whether a computer print out is a bankers book under the Evidence Act. 21/08/2014
Nsekela J; It is in this spirit that I am prepared to extend the definition of bankers books to include evidence emanating from computers, subject of course to the same safeguards applicable to other bankers books. 21/08/2014
Following [Commercial Case] Trust Bank.. Mentioned case law marked the admission of electronic evidence in the Judicial system in Tanzania Bankers books were stretched to include computer print outs Written Laws (Miscellaneous Amendment) Act No.15 of 2007 21/08/2014
Amended s40 by adding s40A provides for the admission of electronic evidence in criminal proceedings Electronic records such as emails, and print out statements are admissible as evidence only in banking under civil procedure proceedings. S78 & 79 of the Law of Evidence Act set out requirements for the admissibility of these evidences. i.e. a certificate of origin 21/08/2014
Admissibility of statements produced by Computers In any civil proceedings a statement contained in a document produced by a computer shall, subject to the rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible. Was produced 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. 21/08/2014
That over period there was regularly supplied to the computer in the ordinary course of those activities information. That throughout the material part of that period the computer was operating properly That the information contained in the statement reproduced is derived from information supplied to the computer in the ordinary course of those activities 21/08/2014
Electronic Communications and Transactions Act (July) 2002 (South Africa). To provide for the facilitation and regulation of electronic communications and transactions; To provide for the development of a national e- strategy for the Republic; To promote universal access to electronic communications and transactions and the use of electronic transactions by Small Medium Micro Enterprises; 21/08/2014
To provide for human resource development in electronic transactions; to prevent abuse of information systems; to encourage the use of e- government services; S15 of the South Africa Electronic Transactions and Communication Act, No. 25 of 2002 provides for admissibility of electronic evidence in Electronic Transactions. 21/08/2014
Kenya Communication Amendments Act No.1 2008. Assented 30th December 2008 Commenced on 2nd January 2009 To facilitate the development of the information and communications sector including broadcasting, multimedia, telecommunications, postal service and electronic commerce. Acknowledges electronic signatures. 21/08/2014
So where are we now?? 21/08/2014
Tanzania Electronic Transactions and Communications Bill 2013 The Government of Tanzania is in a process of tabling before the Parliament, the Electronic Transactions and Communication Bill 2013 (hereinafter referred as ETC Bill 2013) to facilitate e-commerce. Despite the Bill providing for recognition and validity of electronic contracts, and electronic signature it overlooks admissibility of electronic evidence in E-Commerce transaction 21/08/2014
The proposed Bill does not amend Written Laws Miscellaneous Amendment Act No. 15 of 2007. Which, covers certain aspects of electronic evidence, particularly admissibility of electronic evidence in criminal proceedings, and bankers books as evidence in civil proceedings. The ETC Bill 2013 seems to be a replica of South Africas Electronic Transactions and Communications Act, Act No.25 of 2002. 21/08/2014
Questions 21/08/2014
Thank you for listening. 21/08/2014

More Related Content

Electronic Contracting in Tanzania (Presentation)

  • 1. Electronic Contracts in Tanzania A Present Legal Battle 21/08/2014 Presentation by Linda Kamuzora Legal Intern Barclays Bank Tanzania
  • 2. Contents Review on the Law of Contract. Proof of a contract Intention to create legal relations. What is an Electronic Contract? Legal position on Electronic Contracts in Tanzania. Electronic Communications and Transactions Act 2002 (South Africa). 21/08/2014
  • 3. Kenya Communication Amendments Act No.1 2008. Tanzania Electronic Transactions and Communications Bill 2013. 21/08/2014
  • 4. Review: What is a contract? A legally binding agreement made between two parties or more, which is enforceable at law. a promise or set of promises for the breach of which the law in some way or an agreement between two or more persons which is intended by them to be legally enforceable. 21/08/2014
  • 5. An agreement is further defined under s2(1) of the LCA Cap.345 to mean every promise or set of promises, forming the consideration for each other. Can be either Written or Orally spoken. Covered under The Law of Contract, Cap.345 R.E 2002 21/08/2014
  • 6. A contract; Terms of a contract 21/08/2014 OFFER ACCEPTANCE CONSIDERATIO N
  • 7. Proof of A Contract Intention to Create Legal Relations: An agreement made within a business context is presumed to be legally binding unless evidence can show different intent. -Balfour v. Balfour (1919) -ESSO Petroleum Co. Ltd V. Commissioners of customers of customs and Excise (1976) 21/08/2014
  • 8. Electronic Contracts They are defined as; Contracts made using computers, either via e-mail or the Internet, or that involve computer related products, such as databases and software. any kind of contract formed in the course of e- commerce by the interaction of two or more individuals using electronic means, such as e-mail, the interaction of an individual with an electronic agent, such as a computer program, or the interaction of at least two electronic agents that are programmed to recognize the existence of a contract. 21/08/2014
  • 9. Used in commercial transactions, key examples being Banks, Mobile Banking, online shopping and many others. Upon introduction in Tanzania, has led to the easy command of transactions between entities since it commands flexibility in practise. 21/08/2014
  • 10. M-banking Mobile financial services delivered by way of mobile networks using mobile phones. Bank Of Tanzania Act 2006 s.6 (The BOT Act) Tanzania Communication and Regulatory Authority (TCRA) Tanzania Communication Regulatory Act Authority Act 2003 (the TCRAA) Electronic and Postal Communications (Licensing) Regulations (EPCR) 2011 21/08/2014
  • 11. Electronic Payment Schemes Guidelines 2007 (the EPSG) Mobile Payments Regulations (Draft) (MPR) Terms & Conditions for Agents & Customers 21/08/2014
  • 12. Advantages Current wave of the future globalisation economies Easy replacement of paper documents Time efficient Flexible-not fixed Few costs incurred 21/08/2014
  • 13. Challenges facing E- Contracts in Tanzania Current legal position Poor bargaining power Impaired freedom of contract 21/08/2014
  • 14. Legal Position on E-Contracts in Tanzania UNCITRAL MODEL LAW on Electronic Commerce 1996 Law of Evidence Act 1875 (India) = Tanzania Law of Evidence Act Bankers book under s78 & 79 of the Law of evidence act= connotes book used in the ordinary business of a bank Asylum for Idiots v. Handy Sides, 22, TLR 21/08/2014
  • 15. S.78 & 79 Tanzania Evidence Act s.78. (1) A copy of an entry in a bankers book shall not be received in evidence under this Act. 79 (1) A copy of an entry in a bankers book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct. 21/08/2014
  • 16. Prior 2007, electronic documents or data messages were not admissible under the legal system in Tanzania. Most laws advocated for original evidence Best Evidence Rule-excluded the admissibility In Lazarus Mirisho Mafie & Another vs. Odilo Gasper Katenga, Comm Case No.10 21/08/2014
  • 17. Makaramba J, refused to embark on judges made law & argued the business of creating rules and admissibility and validity of electronically stored information should be left to legislature. Furthermore, s3 & s36 of the Amending Act No.2 of 2006- amended s78 by adding s.78A of the Law of Evidence Act. Tanzania Cotton Marketing Board vs. Cogecot Cotton Company ,SA (1997) 21/08/2014
  • 18. Exim Bank (T) Ltd v. Kilimanjaro Coffee Company Limited (2011) However, in the landmark case of Trust Bank Tanzania Ltd v Le Marsh Enterprises Ltd and Others (2007), the High Court of Tanzania considered the admissibility of computer evidence. Issue: Whether a computer print out is a bankers book under the Evidence Act. 21/08/2014
  • 19. Nsekela J; It is in this spirit that I am prepared to extend the definition of bankers books to include evidence emanating from computers, subject of course to the same safeguards applicable to other bankers books. 21/08/2014
  • 20. Following [Commercial Case] Trust Bank.. Mentioned case law marked the admission of electronic evidence in the Judicial system in Tanzania Bankers books were stretched to include computer print outs Written Laws (Miscellaneous Amendment) Act No.15 of 2007 21/08/2014
  • 21. Amended s40 by adding s40A provides for the admission of electronic evidence in criminal proceedings Electronic records such as emails, and print out statements are admissible as evidence only in banking under civil procedure proceedings. S78 & 79 of the Law of Evidence Act set out requirements for the admissibility of these evidences. i.e. a certificate of origin 21/08/2014
  • 22. Admissibility of statements produced by Computers In any civil proceedings a statement contained in a document produced by a computer shall, subject to the rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible. Was produced 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. 21/08/2014
  • 23. That over period there was regularly supplied to the computer in the ordinary course of those activities information. That throughout the material part of that period the computer was operating properly That the information contained in the statement reproduced is derived from information supplied to the computer in the ordinary course of those activities 21/08/2014
  • 24. Electronic Communications and Transactions Act (July) 2002 (South Africa). To provide for the facilitation and regulation of electronic communications and transactions; To provide for the development of a national e- strategy for the Republic; To promote universal access to electronic communications and transactions and the use of electronic transactions by Small Medium Micro Enterprises; 21/08/2014
  • 25. To provide for human resource development in electronic transactions; to prevent abuse of information systems; to encourage the use of e- government services; S15 of the South Africa Electronic Transactions and Communication Act, No. 25 of 2002 provides for admissibility of electronic evidence in Electronic Transactions. 21/08/2014
  • 26. Kenya Communication Amendments Act No.1 2008. Assented 30th December 2008 Commenced on 2nd January 2009 To facilitate the development of the information and communications sector including broadcasting, multimedia, telecommunications, postal service and electronic commerce. Acknowledges electronic signatures. 21/08/2014
  • 27. So where are we now?? 21/08/2014
  • 28. Tanzania Electronic Transactions and Communications Bill 2013 The Government of Tanzania is in a process of tabling before the Parliament, the Electronic Transactions and Communication Bill 2013 (hereinafter referred as ETC Bill 2013) to facilitate e-commerce. Despite the Bill providing for recognition and validity of electronic contracts, and electronic signature it overlooks admissibility of electronic evidence in E-Commerce transaction 21/08/2014
  • 29. The proposed Bill does not amend Written Laws Miscellaneous Amendment Act No. 15 of 2007. Which, covers certain aspects of electronic evidence, particularly admissibility of electronic evidence in criminal proceedings, and bankers books as evidence in civil proceedings. The ETC Bill 2013 seems to be a replica of South Africas Electronic Transactions and Communications Act, Act No.25 of 2002. 21/08/2014

Editor's Notes

  • #15: The unicitral advocates for equal treatment of both paper based and electronic based evidence. Best evidence rule which requires that only such original documents can be admissible in the court of laws. However, due to the advancement of digital technology, computers, network and other related devices, might affect the use, scope and admissibility The evidence act of Tanzania provided for the best evidence rule which excluded the admissibility of secondary evidence unless corroborated by the primary evidence.
  • #19: The plaintiff company advanced a loan to the defendants. Upon default to repay the loan and interest, the plaintiff instituted a commercial case against the defendants to recover the principal sum and interest. In the course of the proceedings, the plaintiff wished to tender a print-out of a bank statement. Counsel for the defendants vigorously objected, because it was a photocopy, and not an original.
  • #20: Safe guards