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Electronic evidence and access to GBV justice

The Zanzibar Evidence Act of 2016, which came into full force on January 18, 2017, creates a special regime of rules for the admission of electronic evidence.

The rules provide minimum certainty in the admission of electronic records.

Electronic evidence, also known as digital or computer evidence is basically an information, data or record that is stored, transmitted, or processed in electronic form is nowadays used as evidence in court proceedings in many countries.

Sections 71 to 73 of the Act describe how electronic evidence can be collected and administered.

The existence of the Act makes it clear that electronic evidence can be used during the investigation of cases of gender based violence (GBV).

However, the implementation of this Act is done at a very unsatisfactory level in Zanzibar and results with victims not accessing justice in time.

Furthermore, while the Act allows detectives to collect electronic evidence, the police still do not have sufficient knowledge of how to do it efficiently.

The anti cyber crime officer from the Zanzibar Police Force, Issa Mohamed Salum, said  while the Act allows detectives to collect electronic evidence, they are yet to be trained to do it with perfection.

“We have not been trained to collect evidence electronically. We still write down the details of the victims on the piece of paper. However, if the prosecutors want audio and photo evidence, we can collect it, but there are still no guidelines,” he explained.

Sara Omar Hafidh, a regional court magistrate in charge of GBV cases, admitted that the Act accepts electronic evidence, but it has some limitations.

“It could be the voice of the victim, but there is a problem if the victim says the voice is not hers. In such a case, the court still could not give an unquestionable judgment,” she said.

However, some GBV stakeholders have advised the government to improve the court infrastructure so as to address the GBV incidents.

 “Despite the GBV court showing successes, the infrastructure is still insufficient due to the lack of modern instruments for hearing cases, including digital systems (video conference) and the lack of special rooms to keep the affected children,” said Asha Abdi, the TAMWA Board Chairperson.

Hawra Shamte, a senior journalist who has for some time closely followed proceedings of these cases, said according to a recently study conducted by TAMWA Zanzibar there is a lack of modern equipment in the courts and poor infrastructure.

For example, she said, the infrastructures at Vuga, Mahonda and Mkoani court buildings are not conducive.

However, she urged the community to refrain from recording young children and putting them on viral after they have been subjected to sexual harassment.

The TAMWA Director, Dr. Mzuri Issa, said that recently audio (voice) of the child who was interviewed for allegedly being raped by his step father and his voice circulated in social media is against the law, as well as unethical.

“We believe that those who recorded him did that in good faith, but we advise them not to circulate such proceedings in the social media. Instead, they should leave it to trained journalists,” she added.

Dr. Mzuri said a child has the right to be protected from neglect, exploitation and abuse at home, and elsewhere against all acts of harassment and threats to their safety and privacy.

 “Section 33 (1) of the Child Act, prohibits any person from giving information or publishing a photo that will lead to identifying the affected child without the order of the court,” she said.

She asked the government in collaboration with stakeholders, to prepare a solid strategy that will help provide education and awareness to members of the community so as to address GBV incidents fairly.

Commenting on the electronic evidence, the Zanzibar Chief Justice, Khamis Ramadhan Abdallah, said that it is admissible in the court, but there are challenges. These include professionalism for judges and magistrates.

“What is missing is the expertise to conduct electronic evidence investigation, but we (court) also lack the necessary expertise,” he said.

However, he said there is a need to properly manage that to develop training for all players.

“The government and the court have plans to have electronic devices in the hearing of cases, and at the same time the office of the Director of Public Prosecution (DPP), Zanzibar Anti-Corruption and Economic Crimes Authority (ZAECA), Police and other institutions should be empowered to get those devices,” he added.

According to the Office of the Chief Government Statistician, 199 GBV incidents were registered in October 2023, of which 78.9 percent of the victims were children under the age of 18.

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