The Role of Law Reform in Development: Advancing Justice Through Technology
The legal field in Zimbabwe is undergoing significant law reform to align with technological advancements, focusing on DNA and electronic evidence. The Law Development Commission plays a crucial role in promoting the development and reform of laws to keep pace with changing times and situations, emphasizing human rights and freedoms. DNA profiling is highlighted as a reliable forensic technique, with efforts to enhance statutes like the Civil Evidence Act and the Criminal Procedure and Evidence Act to accommodate advancements in evidence collection and analysis.
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THE ROLE OF LAW REFORM IN DEVELOPMENT ZIMBABWE LDC, Ms. Lungile MASUKU, Chief Law Officer Advancing Justice through Technology: DNA and Electronic Evidence BARRACUDA HALL, INTERCONTINENTAL HOTEL, BALACLAVA, MAURITIUS JUNE 2017
ADVANCING JUSTICE THROUGH TECHNOLOGY : DNA AND ELECTRONIC EVIDENCE LAW DEVELOPMENT COMMISSION, ZIMBABWE
PRODUCT OF NEGOTIATIONS BETWEEN POLITICAL PARTIES SUBJECTED TO REFERENDUM BEST PRACTICES FROM OTHER COUNTRIES EMPHASIS ON HUMAN RIGHTS AND FREEDOMS EG DEATH PENALTY MODIFIED NO EXTENSION IF ARRESTED PERSON DETAINED BEYOND 48 HRS WITHOUT EXTENSION BY COURT
ALIGNMENT OF STATUTE LAW WITH CONSTITUTION NEW ACTS AMENDMENTS TO EXISTING ACTS EASE OF DOING BUSINESS INITIATIVE ON GOING LAW REFORM
COMMON LAW IS SLOW AND LACKS FLEXIBILITY TO MEET CHANGING TIMES AND SITUATION. THIS THEREFORE MAKES THE LEGISLATIVE PROCESS IMPERATIVE AS LAW CAN BE CREATED, AMENDED AND REPEALED TO MATCH THE CHANGING TIMES. IN ZIMBABWE IT IS THE MANDATE OF THE LAW DEVELOPMENT COMMISSION TO PROMOTE THE DEVELOPMENT AND REFORM OF THE LAW WORKING WITH STAKEHOLDERS
THE WORLD WE ARE LIVING IN IS BECOMING TECHNOLOGICALLY ADVANCED AND THIS HAS AN IMPACT ON THE LEGAL FIELD. OUR LAWS ARE NOT ABREAST WITH THE ERA OF TECHNOLOGY. THIS LED THE LAW DEVELOPMENT COMMISSION TO LOOK AT DNA AND ELECTRONIC EVIDENCE WITH A VIEW OF PROMOTING LAW REFORM IN ORDER TO TAKE ADVANTAGE OF THE TECHNOLOGICAL ADVANCEMENT IN OUR JUSTICE SYSTEM.
DNA PROFILING IS A FORENSIC TECHNIQUE USED TO IDENTIFY INDIVIDUALS BY THE CHARACTERISTICS OF THEIR DNA. IT IS A ANALYSIS OF EVIDENCE IN LABORATORIES FROM SAMPLES LIKE BLOOD, SALIVA, SEMEN, HAIR , SKIN AND OTHER BODY TISSUES. ONE OF THE MOST RELIABLE FORMS OF EVIDENCE THAT CAN BE USED IN CRIMINAL TRIALS ALSO CRITICAL ON ISSUES OF DETERMINING PATERNITY IN CIVIL CASES
KEY STATUTES - CIVIL EVIDENCE ACT AND THE CRIMINAL PROCEDURE AND EVIDENCE ACT THE CP&E ACT IS SILENT ON DNA EVIDENCE, WHILE THE CIVIL EVIDENCE ACT ONLY PROVIDES FOR THE ADMISSIBILITY OF MEDICAL REPORTS THAT INCLUDE INFORMATION ON EXAMINATIONS CARRIED OUT ON PERSONS OR BODIES BY MEDICAL PRACTITIONERS. THESE ACTS HAVE NO EXPRESS PROVISIONS ON THE ACQUISITION OF DNA SAMPLES, THEIR MANAGEMENT AND SUBSEQUENT ADMISSIBILITY AS EVIDENCE IN THE COURTS OF LAW THIS IS A BIG LACUNA IN OUR LEGISLATION AS THIS LIMITS THE LEVEL TO WHICH SUCH EVIDENCE CAN BE PLACED BEFORE THE COURTS IN WAYS THAT ARE LEGALLY ACCEPTABLE.
IN OUR COURTS DNA HAS NOT BEEN USED IN CASES WERE SEXUAL OFFENCES WOULD HAVE BEEN SOLVED DUE TO LACK OF SUITABLE LEGISLATIVE FRAMEWORK TO MAKE DNA EVIDENCE ADMISSIBLE. HAVING IDENTIFIED THIS GAP, THE LAW DEVELOPMENT COMMISSION AND RELEVANT MINISTRIES IS WORKING TOWARDS LAW REFORM ON DNA EVIDENCE. THE INTENDED LEGISLATIVE INTERVENTION ON ADMISSIBILITY AND MANAGEMENT OF DNA EVIDENCE SEEKS TO REGULATE ISSUES THAT INCLUDE :
WHAT SHOULD LEGALLY CONSTITUTE DNA? HOW SHOULD DNA SAMPLES BE OBTAINED? HOW TO DEAL WITH THE RETENTION AND USE OF DNA PROFILES AND SAMPLES? SHOULD PERSONS BE COMPELLED TO PROVIDE THEIR DNA SAMPLES VIZ VIZ THEIR RIGHT TO HUMAN DIGNITY AND PRIVACY. WHAT EXPERTISE NEEDED TO BE EMPLOYED TO VALIDATE DNA EVIDENCE FOR IT TO BE ACCEPTABLE IN COURTS OF LAW?
WITH PROPOSED LAW REFORM THE USE OF DNA EVIDENCE WILL BE ADMISSIBLE IN OUR COURTS BASED ON GUIDELINES THAT WILL BE PROVIDED BY THE STATUTES AND AS A RESULT ONE S INNOCENCE OR GUILT WILL BE EASILY ESTABLISHED WITH ASTONISHING LEVEL OF ACCURACY.
LIMITED RESOURCES QUALIFIED PERSONNEL OVERWHELMING CASE MANAGEMENT DEMANDS STORAGE FACILITIES DELAYS
COLLECTION AND PRESERVATION OF DNA SAMPLES PURPOSES FOR WHICH DNA SAMPLES MAY BE TAKEN COLLECTION AND PRESERVATION OF DNA EVIDENCE AT CRIME SCENE TAKING DNA SAMPLES FROM PERSONS TAKING OF DNA SAMPLES AFTER CONVICTION FOR CRIMINAL OFFENCES CONSENT TO TAKING OF DNA SAMPLE CONDITIONS FOR ISSUING A MAGISTERIAL WARRANT TO OBTAIN A DNA SAMPLE COLLECTION AND PRESERVATION OF DNA SAMPLES PURPOSES FOR WHICH DNA SAMPLES MAY BE TAKEN COLLECTION AND PRESERVATION OF DNA EVIDENCE AT CRIME SCENE TAKING DNA SAMPLES FROM PERSONS TAKING OF DNA SAMPLES AFTER CONVICTION FOR CRIMINAL OFFENCES CONSENT TO TAKING OF DNA SAMPLE CONDITIONS FOR ISSUING A MAGISTERIAL WARRANT TO OBTAIN A DNA SAMPLE
TIME WITHIN WHICH DNA SAMPLE MUST BE DELIVERED TO FORENSIC LABORATORY RETENTION, STORAGE, DESTRUCTION AND DISPOSAL PROCEDURES OF SAMPLES DNA PROFILING AND INSTITUTIONS TO PERFORM PROFILING OWNERSHIP OF DNA SAMPLES THE ARRESTEE INDEX OFFENCES FOR WHICH THERE WILL BE MANDATORY DNA PROFILING TIME WITHIN WHICH DNA SAMPLE MUST BE DELIVERED TO FORENSIC LABORATORY RETENTION, STORAGE, DESTRUCTION AND DISPOSAL PROCEDURES OF SAMPLES DNA PROFILING AND INSTITUTIONS TO PERFORM PROFILING OWNERSHIP OF DNA SAMPLES THE ARRESTEE INDEX AND OFFENDERS INDEX OFFENCES FOR WHICH THERE WILL BE MANDATORY DNA PROFILING
HUGE STRIDES IN INFORMATION COMMUNICATION TECHNOLOGY IN RECENT YEARS PARADIGM SHIFT IN WAY PEOPLE COMMUNICATE, SHARE AND STORE INFORMATION VIDEO AND AUDIO RECORDINGS ORDER OF THE DAY NEW CHALLENGES IN LEGAL PROCEEDINGS HOW TO AUTHENTICATE DIGITAL INFORMATION UNDER CURRENT RULES
SAME AS FOR PAPER EVIDENCE RELEVANCE AUTHENTICITY HEARSAY BEST EVIDENCE PROBATIVE VALUE
ELECTRONIC EVIDENCE IS THE USE OF INFORMATION STORED OR TRANSMITTED IN DIGITAL FORM. WITH THE RAPID GROWTH OF TECHNOLOGY, EVIDENCE OF CRIME CAN NOW BE FOUND IN DIFFERENT MODES AND PLACES AND THIS HAS CREATED CHALLENGES IN OUR LEGAL PROCEEDINGS AS COURTS DECIDE HOW TO PROPERLY AUTHENTICATE DIGITAL INFORMATION UNDER THE CURRENT LAWS. SITUATION IS MADE WORSE IN THAT THERE ARE NO LAWS DEALING SPECIFICALLY WITH ELECTRONIC EVIDENCE AND ELECTRONIC TRANSACTIONS.
THE CIVIL EVIDENCE ACT RECOGNISES COMPUTER EVIDENCE IN THE FORM OF DOCUMENTS ONLY AND DOES NOT INCLUDE VOICE RECORDINGS, VIDEO AND TAPS . THE CRIMINAL PROCEDURE AND EVIDENCE ACT IS SILENT ON THE ADMISSIBILITY OF ELECTRONIC EVIDENCE THEREFORE CREATING LEGAL UNCERTAINTY IN OUR COURTS. THE CRIMINAL LAW (CODIFICATION AND REFORM) ACT HAS CRIMINALISED COMPUTER ACTIVITIES THEREBY IMPLYING THAT EVIDENCE FROM COMPUTERS TO PROVE SUCH CRIMES CAN BE ADMITTED HOWEVER NOT TO PROVE OTHER CRIMES NOT RELATED TO COMPUTERS.
SOCIETY NOW USES ELECTRONICS MORE AND WE ARE MOVING TOWARDS A PAPERLESS ERA. WITH THIS COMES THE RISE OF CYBER CRIMES, ISSUES OF DATA PROTECTION AND ELECTRONIC TRANSACTIONS, CONTRACTS SIGNED ONLINE , STORAGE OF INFORMATION IN DIFFERENT GARGETS, AUTHENTICITY OF ELECTRONIC INFORMATION. FACED WITH SUCH LEGAL ISSUES AND NO ADEQUATE LEGISLATION OUR COURTS HAVE BEEN GRAPPLING WITH THE FOLLOWING AMONG MANY ISSUES:
WHAT ELECTRONIC EVIDENCE IS ADMISSIBLE ? WHETHER OR NOT ELECTRONIC METHODS MAY BE USED IN CONDUCTING TRIALS. IF ELECTRONIC EVIDENCE IS RENDERED ADMISSIBLE, IS IT ADMITTED AS PRIMARY OR SECONDARY EVIDENCE JURISDICTIONAL ISSUES ON CONTRACTS ENTERED ELECTRONICALLY. AUTHENTICITY OF E-MAILS AND OTHER INFORMATION STORED ELECTRONICALLY. ISSUES OF HUMAN RIGHTS IN THE GATHERING OF ELECTRONIC EVIDENCE.
WITHOUT GUIDELINES COURTS WILL BE LEFT TO APPLY THEIR JUDICIAL DISCRETION - THERE WILL BE NO UNIFORMITY IN THE ADMISSIBILITY OF ELECTRONIC EVIDENCE - THEREFORE THERE IS NEED FOR LEGISLATION TO ADDRESS PERTINENT ISSUES. THE LDC AND MINISTRY OF INFORMATION AND COMMUNICATIONS TECHNOLOGY IS WORKING ON THE FOLLOWING LAWS: 1. Computer crimes committed on the computer and cyber space and further look at collection of evidence in such cases and the admissibility of such electronic evidence. Computer Crime Crime and and Cyber Cyber Bill Bill : will look at 1.
Electronic Commerce and Electronic Transaction Bill: enforceability of electronic evidence. Data Protection Bill: processing of personal data by private and public bodies and also to protect the rights of data subjects. Also our High Court Act has been recently amended to include trial using virtual sittings , the service of process by electronic means and authentication of documents by electronic means, whether executed inside or outside Zimbabwe. Electronic Commerce and Electronic Transaction Bill: seeks to promote the legal certainty and Data Protection Bill: seeks to regulate the
Legal recognition of electronic communications Writing Signature Regulation of Certification Authorities Formation and validity of contracts Place and time of dispatch and receipt of electronic communications Automated message systems Admissibility and evidential weight of electronic communications Legal recognition of electronic communications Writing Regulation of Certification Authorities Formation and validity of contracts Place and time of dispatch and receipt of electronic communications Automated message systems Admissibility and evidential weight of electronic communications
Gazetted on 23 June 2017 under Ease of Doing Business Initiative Amendment to High Court Act 47 Sittings of High Court (1) The High Court shall sit at such places and at such times as may be prescribed in rules of court or directed by the Chief Justice. (2) Subject to subsection (3), rules of court may provide for the sittings of the High Court and of the judges of the High Court, whether sitting in court or in chambers, to be conducted by the use of any electronic or other means of communication by which all the parties to the proceedings at the sitting can hear and be heard at the same time without being physically present together (hereinafter referred to as virtual sittings ): 47 Sittings of High Court Provided that the parties concerned must consent to their proceedings being conducted by way of a virtual sitting. [Subsection inserted by Act 7 of 2017]
(3) Rules of court for virtual sittings apply only to civil proceedings and not to criminal proceedings, except in such circumstances and subject to such conditions as may be specified by or under the Criminal Procedure and Evidence Act [Chapter 9:07]. [Subsection inserted by Act 7 of 2017] (4) A party who participates in a virtual sitting for which provision is made under the rules is taken for all purposes to have been present at the sitting. [Subsection inserted by Act 7 of 2017]
(2) Rules of court made in terms of subsection (1) may provide for the following matters (cc) [Paragraph substituted by Act 7 of 2017] (dd) electronic means, whether executed inside or outside Zimbabwe; (ee) lodged with the Registrar and the conditions of access thereto or for the copying thereof for the purpose of any judicial proceedings; [Paragraph inserted by Act 7 of 2017] the service of process by electronic means; the authentication of documents by the digitisation of the records filed or
TECHNOLOGICAL ADVANCEMENT HAS ITS ADVANTAGES AS ALREADY HIGHLIGHTED, HOWEVER IT ALSO HAS ITS DISADVANTAGES IF NOT PROPERLY REGULATED. WE THEREFORE HAVE A DUTY TO MAKE SURE THAT OUR NATIONAL LAWS ARE OPTIMALLY ADAPTED TO EMBRACE TECHNOLOGY AND COMPLEX LEGAL ISSUES THAT MAY ARISE FROM IT.
