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Provisions of the Evidence Act, 2011 on electronic proofs are largely inadequate


Prof. Taiwo Adetayo Osipitan

Saying that Nigerian courts are not adequately empowered to deal effectively with the growing trend of hate speeches is stating the obvious. A professor of Public Law and Senior Advocate of Nigeria, Taiwo Adetayo Osipitan states in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE that the inadequacy of the provisions of the Evidence Act, 2011 on electronic evidence accounts for the problem.

Professor Taiwo Adetayo Osipitan (SAN) was born November 14, 1956. He attended Olivet Baptist High School, Oyo, for his Ordinary Level School Certificate and The Polytechnic, Ibadan for his General Certificate of Education (GCE) Advanced level before proceeding to the University of Lagos for his LLB. Osipitan attended London School of Economics and Political Science, which was then one of the Colleges of the University of London and successfully completed his LLM with distinction. He began to teach at the faculty of Law, University of Lagos in 1982 as a youth corps member and progressively rose to become a professor of law. A fellow of the Chartered Institute of Arbitrators of Nigeria, ex-member of the Governing Council of the Lagos State University and former chairman of the visitation panel to Ogun State University, Osipitan at various times, served the nation at the state and federal levels.

In the light of the limitations of the Evidence Act, 2011, and the growing hate-speeches in the social media how will courts handle the publication of defamatory statements via social networks?
Social media hate speech has continued to grow both locally and globally due to the increased online social media platforms such as Twitter, WhatspApp and Facebook and easy access to smart phones. Hate speeches are presently generating political tension and polarizing the country because of the forthcoming elections. Phone messages are being utilized to fuel, share destructive propaganda and support ethnic, racial, and religious violence. The courts are not adequately empowered to deal effectively with hate speeches; they are presently handicapped because Nigerian legislative framework as presently constituted, cannot effectively combat ongoing vituperative hate speeches in the social media. There is no specific hate speech legislation in Nigeria.

A litigant has to institute an action for defamation under general provisions of the Constitution and to these, there are several available defences especially freedom of expression and privileges. There is an urgent need, for the National Assembly to enact a law for the prevention and combating of hate crimes and hate speeches. The proposed law will provide for the prosecution of persons who commit those offences. It will provide for appropriate sentences that may be imposed on persons found guilty of these offences. From the angle of discharge of burden of proof in hate speech proceedings, Section 84 of the Evidence Act, which deals with admission of electronic evidence is vital. The provision undoubtedly provides necessary platform for admitting electronic evidence. It however has its limitations. These limitations have been accentuated by the growing use of social media. Social media, unlike the mainstream media, can be viewed as a collection of websites, blogs and applications that enable users to create and share content or to participate in social networking. We currently have so many social networks like Facebook, Twitter, Instagram, WhatsApp, Messenger just to mention a few.

These networks enable users the freedom to disseminate all sorts of information to the public. Social Media as a tool of communication is not bad in itself; in fact it has brought public attention to issues and views most people would ordinarily have expressed in private. The main challenge with social media is the anonymity that it affords its users. This anonymity enables some users to disseminate what is or can be referred to as hate speech. The court today faces a herculean task in addressing the challenges from technological advancements. Traditionally, when libelous statements are published, the person libeled may easily decide to pursue a civil action against the person who libels him/her because the publication can be traced to the publisher of the libelous statements. With the advent of technology, it is possible to publish libelous statements which may be untraceable unless with the aid of hackers or other computer experts. Nigeria operates an adversarial system and the court’s duty does not extend to locating or investigating the source of the libelous publication. In civil cases, it is the duty of the parties to adduce evidence to the satisfaction of the court in support or defence of a claim.

For the claimant, this necessarily involves tendering the relevant publication in court during trial. One of the innovations of the Evidence Act, 2011 is that the definition of the words “document” and “computer” has been expanded. Section 258(1) (d) for instance covers any device by means of which information is recorded, stored or retrievable including computer output. Computer is defined to mean any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process. There is no doubt that documents derived from electronic devices can be admitted by the courts provided that they comply with Section 84 of the Act. The court may however face the challenge in authenticating these electronic documents. For instance, how do you authenticate a video containing hate speech, which was released from a parody account? Another challenge is the presumption of electronic messages.

Section 153 (2) of the Act, provides that the court may presume an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds, with the message as fed into his computer for transmission; but the court shall not make any presumption as to the person to whom such message was sent. The presumption is a strange one because the server itself can be distorted and the originator of an electronic message is not defined leaving room for multiple interpretations of who an originator is. It is in recognition of the possible interference or distortion of electronic messages that Section 8 and 9 of the Cybercrimes (Prohibition, Prevention etc) Act, 2015 criminalizes system interference and intercepting electronic messages. Essentially, the Courts would adjudicate on the strength of the evidence placed by disputing parties before them.

What kind of amendment do you think will remedy the obvious drawbacks of electronic evidence, which include that it can easily be manipulated, withdrawn and or destroyed?
The provisions of the Evidence Act, 2011 on electronic evidence are largely inadequate. There is a need for specific legislation on Electronic Evidence just like in other jurisdictions. The United Kingdom, for instance, has the Police and Criminal Evidence Act, 1984 and the PACE Codes of Practice which have provisions on evidence gathering including electronic evidence, Canada has the Uniform Electronic Evidence Act and South Africa has the Electronic Communications and Transactions Act 25 of 2002. Nigeria is trailing behind in the area of Electronic Evidence. An interim measure will be to revisit, by way of amendment, the presumption in Section 153 (2) of the Act, by defining the word “originator” used in the section. There is the need for a new provision to address these problems. Computerized data raise unique issues concerning accuracy and authenticity. Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions. The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling. The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy.

For example, in England & Wales, India, United States and Canada a diverse form of authentication suitable and fitted for the respective jurisdictions have been adopted and put in place. They vary from presumption of regularity of electronic evidence in Canada, to a case by case determination in England & Wales and self-authentication in the United States of America. Section 84 of the Evidence Act stipulates the requirements for admissibility of electronic evidence in Nigeria: oral testimony and tendering of certificate of authentication. These conditions are mandatory. However, there are emerging issues that are yet to be judicially and clearly settled.

For example, what is the procedure to be adopted when the electronic evidence to be tendered is produced by the adverse party’s computer and he is not willing to issue a certificate of authentication of his computer? What if the computer, which was utilized in producing the document, was not secured and has been manipulated and has its content undermined by a virus? Can Nigeria not adopt the practice in some jurisdictions where some electronic evidence will be presumed genuine until the contrary is established? For example, statement of accounts issued by a bank and contents of public institutions and establishment websites? It is suggested, that section 84 be revised to include a certification that the computer that processed the data is secured.

Presently, section 84 is not subject to even a basic requirement, which shows that the computer system, which produces a document has a reasonable level of security protective of its integrity. This requirement does not have to be onerous. The proponent of electronic evidence should be able to demonstrate the security around the computer systems upon which the business records were created and stored. Any amendment to the Evidence Act, should include an additional requirement, that the witness attests to the fact, that the computer system contains a reasonable level of security which prevents attacks from viruses and malware and other unauthorized access.

Most electronic evidence that would be tendered in proving online defamation may be copies of the original stored in machine-readable format. So, will a printed letter be considered the original document or the actual file saved on computer?
Section 84(1) of the Act provides the platform for admissibility of a statement contained in a document, which has been produced by a Computer, (where direct oral evidence of such statement would be admissible) provided the conditions prescribed by Sections 84 (2) and (4) are complied with. It is therefore not necessary to tender the actual file stored in the Computer. There is no doubt that the actual file stored in the machine is coded and not readable by naked eyes. Computer language is the binary language made of 1s and 0s.

Section 84(4) of the Evidence Act 2011, states that where it is desirable to give a statement in evidence by virtue of Section 84 of the Evidence Act 2011, a Certificate identifying the document containing the statement and describing the manner in which the document was produced, with the particulars of any device involved in the production of the document, signed by a person occupying a responsible position in relation to the operation of the electronic device, shall be primary and sufficient evidence of the matters stated in the Certificate. Further, Section 86 (3) (d) of the Evidence Act 2011 provides that where a number of documents have all been produced by one uniform process as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each of such documents shall be the primary evidence of the contents of all the documents so produced by this one uniform process. The rules on the admissibility of documents, especially those dealing with primary and secondary evidence have been reviewed under the 2011 Evidence Act, in order to accommodate electronic evidence. Accordingly, a printed copy of a document is admissible as primary evidence. A photocopy or certified true copy of such printed copy will be admissible as secondary evidence.

Section 84 of the Act talks about the admissibility of documents produced by computers, but no mention is made about handsets. Can handsets be regarded as computers in this circumstance?
The Act defines document in Sections 258(1) as including “any device by means of which information is recorded, stored or retrievable including computer output.” Under section 258(1) documents also include any disc, tape sound track or other device in which sounds or other data (not being unusual images) are embodied as to be capable (with or without and of other equipment) of being reproduced from it” The same Section 258(1) of the Act, defines computer as any device for storing and processing information and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process. The cases of Obatuga v Oyebokun (2014) LPELR-22344 and Federal Polytechnic Ede v Oyebanji (2012) LPELR 19696 where tape and video recordings were admitted as documents by the court readily come to mind. A handset also qualifies as a document under Section 258 being a device by means of which information is recorded, stored or retrievable. Although Section 258(1) does not specifically mention handsets, handsets fall within the definition of computers. The word “includes” which appears in the definition shows that the categories of computers are not closed. Therefore, the contents of a handset sought to be relied upon in evidence can be tendered and admitted as primary evidence, if they satisfy the conditions prescribed in Section 84 (2) and (4) of the Act.

Some critics say legal and justice sector in Nigeria is dead for the simple reason that cases take five to 10 years to resolve. Do you agree and what is the way out?
It is widely acknowledged that delay is a major challenge in the dispensation of justice in Nigeria. All stakeholders have admitted the problem of delay in the administration of justice in Nigeria. Several attempts have been made at solving the problem; it remains an albatross of the Nigerian justice system. Many reasons account for the delay in the justice delivery system. The case-load of our appeal courts is so heavy that we cannot but experience delays in the appellate courts. There is only one Supreme Court in Nigeria, which handles appeals from many judicial divisions of the Court of Appeal. The Court of Appeal receives appeals from the High Court, Federal High Court, High Court of the Federal Capital Territory and the National Industrial Court. Moving forward, I will suggest that the jurisdiction of the appellate courts be reviewed. Few cases of constitutional and national importance should find their way to the apex court. Rules of court should be revised regularly in order to ensure speedy dispensation of justice.

Costs awarded against losing parties should be upwardly reviewed in order to discourage filing of frivolous cases. The courts should explore payment of costs by counsel where frivolous suits are filed. There are innovative provisions in the Administration of Criminal Justice Act aimed at fast-tracking the trial of cases. Issues of manpower and infrastructure must be addressed in our search for the speedy disposal of cases. ICT should be embraced right from the time of filing of cases until delivery of judgment. During investigation of criminal cases and economic and financial crimes, the investigating authorities should embrace the use of modern technology Modern technology should be embraced during investigation to have a water-tight case. The use of DNA, finger printing and CCTV footage will reduce to a great extent human errors and uncertainties. It facilitates establishing the burden of proof beyond reasonable doubt. Despite these statutory innovations the problem of delay in the administration of justice persists. This has shown that innovative statutory provisions alone cannot solve the problems of delayed justice. The problems are more structural and every stakeholder has shared responsibilities and blame.

What is your view about restructuring and how do you think it should be approached?
Nigeria is a federation that is federal in form but unitary in substance. The centre is evidently powerful in terms of its quality and quantity of its legislative functions and executive powers. The ongoing narrative in the public space is that the country needs to be restructured but restructuring means different things to different individuals and groups. What needs to be restructured also differs. I will want to see a restoration of regional autonomy, including financial and resource control, more powers to the states and a reduction of items on the Exclusive list, while the concurrent list is increased. The centre should be made less attractive. This will eliminate regional agitations and conflicts, facilitate development and healthy rivalries between the regions.

Corruption is said to be one of the biggest problems of Nigeria. Do you in all honesty believe that the federal government is winning the war against corruption or simply going after perceived opponents?
The Nigerian society is most unfortunately acknowledged as very corrupt. Corruption has permeated every fabric of the Nigerian nation. Corruption has been acknowledged as the only steady growth Nigeria has experienced since her Independence. Corruption is a hydra-headed monster with the capacity to destroy every facet of life. The Federal Government is trying its best to fight corruption, but it can do better if the strategies are reviewed. More scientific/forensic methods should be deployed to fight corruption. There is also the need to investigate factors, which have aided the growth of corrupt practices. These factors are non-legal. They include social, cultural and religious factors. It is only when these factors are fully investigated that the fight against corruption can easily be won.

Lawyers are said to be hindering the war against graft by defending alleged looters and filing multiple applications for delay tactics. Do you agree with this assertion?  If yes, how can it be addressed?
The allegation that lawyers hinder the war against corruption is not totally true. Persons who are described as looters enjoy presumption of innocence under our law until they are tried and convicted. The issues of delays have been addressed in the Administration of Criminal Justice Act, which abolished stay of proceedings pending hearing of interlocutory appeals. Issues of defect in charges and information can only be raised at the end of prosecution’s case. There are innovative provisions in the ACJA aimed at addressing problems associated with what many people call antics of defence counsel. However, if the truth must be told, there are also antics of the prosecution. Requests for adjournments, seemingly endless amendments of information/charges at the instance of the prosecution also hinder speedy dispensation of justice. Presently, there is an upsurge of criminal cases filed in court because investigators and prosecutors are criminalizing simple commercial disputes. The increase in number of criminal cases, without corresponding increase in the number of judges who are to try suspects, slows down the wheel of criminal justice system.

Do you think the new leadership of the NBA will strengthen the association irrespective of the charge against its president?
The NBA is an institution that is capable of addressing the many challenges confronting its members and to provide leadership where necessary irrespective of the person that occupies the office of the President. The NBA President is presumed innocent until proven guilty. In sum, I think the NBA will perform its functions irrespective of the charge against its President. I am not aware of any law, which stipulates that the President or any member of the Executive of the Nigerian Bar Association must step aside during the pendency of a criminal trial. Granted that moral issues can be raised but it is necessary to distinguish between law and morals bearing in mind that the latter are purely subjective.

In this article:
Taiwo Adetayo Osipitan
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