Republic vs Abdallah Abubakar Mwita and Others (Economic Crime Case No. 5734 of 2025) [2026] TZHC 2931 (4 June 2026)
Judgment
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE CORRUPTION AND ECONOMIC CRIMES DIVISION AT DAR ES SALAAM REGISTRY ECONOMIC CRIME CASE NO. 5734 OF 2025 REPUBLIC VERSUS
- ABDALLAH ABUBAKAR MWITA
- ABDALLAH MLUKU MAGGID
- SAID YUSUFU ALAWY
- HALIMA MWIDINI NURU RULING Date of Last Order 03.06.2026 Date of Ruling: 04.06.2026 Before: A.Mambi, J. This Ruling is in respect of a preliminary objection raised by the learned Counsel for the third and fourth accused Mr. Wilson Ogunde. The learned Counsel objected the admission of the photos retrieved and printed from the digital Camera. Since the computer printout were in a form of electronic evidence his objection was based on the provision of section 19 (1) (3) of the Electronic Transactions Act (ETA) Cap 442, [R.E.2023]. i
Earlier, the Prosecution witness (PW2) prayed to exhibit Printed photos from the digital camera that are in the form of computer-generated and computer print - out evidence. He averred that section 19(3) (a) (b) (c) of electronic transaction Act is Very clear that before electronic evidence is admitted it must be authenticated. The Mr. Ogunde averments were based on his view that section 19 of ETA requires that before electronic evidence such as computer print - out is admitted the witness must authenticate such evidence and must prove that the computer (digital camera in our case) was reliable that it was operating properly. The learned Counsel submitted that since the photos have been retrieved and printed from electronic device that is digital camera, the witness was required to prove authenticity and trustworthiness of the device. He further submitted that, the witness has told the court that the devices are supposed to be maintained periodically hence the witness must prove that the devices were working properly and that prove must come from an expert witness who did periodic maintenance. He was of the view that, section 19(3) (b) of the ETA is very clear that if the witness could have not been adverse party, then he could be competent witness. In response, the learned State Attorneys led by Ms. Marietha Maguta, and Blandina contended that the defence counsel Mr. Wilson Ogunde has misdirected himself on the intention of section 19 of the Electronic Transactions Act (ETA). Ms. Maguta was of the view that section 19 of the ETA does not require authenticity of electronic evidence, and the court is just required to admit evidence that in a data message form. She argued
that while section 19 (1) of the ETA provides document that is in its electronic form, the photos are not in electronic form. She averred that since the witness has explained the reliability of the photos and the way they were maintained, the requirements of section 19 (1) of the ETA have been met. I have carefully considerably gone through the points of preliminary objection raised by the defence counsel. I have also keenly gone through the submissions by both parties. In my considered view the main issue to be determined is whether the admission or admissibility of electronic evidence generated, retrieved and printed from an electronic device such as digital camera mandatorily require authentication and prove of device reliability. In other words, whether the witness before tendering electronic evidence that is in a form for computer generated evidence such as printed photos from digital camera or any computer system is objected to prove authenticity of such computer printout and reliability of the system that generated such evidence. Before I address the main issue in contentious, I wish to clarify the meaning of some terminologies such as computer generated evidence, reliability and authenticity. Briefly, Computer-generated evidence is among the types of electronic evidence that is produced by a computer through its own operation or processing, rather than being a direct record of information entered by a human being. This is evidence in electronic form that contain the output of computer instructions without manual or human intervention. On the other hand, the term "authenticity" in the context of electronic evidence is used to describe whether data or computer generated evidence is genuine matches the claims made about it. In other words, authenticity is the capacity to prove that the digital
object or electronic evidence is what is purport to be. On the other hand, the reliability of computer system in the context of admissibility and assessment of electronic evidence means the manner or method in which the computer system generated, stored the output such as evidence. It is trite law that the reliability of a computer's output in most laws unlike Tanzania as will be seen below is the most important factor in determining Whether data or electronic evidence should be admitted into evidence. Determination of reliability also goes to the stage of determining if electronic evidence carries probative value or not which is also the position in Tanzania. The objective of determining reliability is to show that the device is what it is purported to be and that the digital information is trustworthy, and has not been tampered with or altered. It follows that courts in Tanzania at the stage of assessment of evidentiary weight (of electronic evidence) stage must satisfy themselves as to the reliability of computer system and the evidence generated by that computer system. As previously held in similar cases that one should bear in mind that a decade or more later or even before a decade, computer technology raises evidentiary concerns that extend far beyond the mere admissibility of a printout of business activity. Advances in technology, including evidence generated by artificial intelligence (AI) have led to the use of various digital techniques in the presentation of evidence to the courts. It is nearly impossible in today's information-technology-driven society with the emerging technology such as AI to encounter a tortious liability or criminal liability such trafficking or possession of narcotic drugs in our case at hand that does not have a digital dimension or electronic evidence. Consequently, courts are sometimes forced to satisfy themselves as to the 4
reliability of computer-generated evidence and other form of electronic evidence, which is often both highly probative. Coming to our issue at hand, the objection raised by the defence counsel requires this court to determine the current position of the law with regard to admissibility of electronic evidence such as computer generated evidence or computer print - out from electronic device such as digital camera. I am aware that, for electronic evidence to be deemed reliable and authentic, "there must be nothing that casts doubt about how the evidence was generated collected and subsequently handled and subsequently presented to the court. It should be noted that Digital photography is being increasingly recognized and used in law enforcement Agencies such as The Drugs Control Enforcement Authority (DCEA) and other enforcement Agencies in Tanzania and other countries as an efficient tool that enables instant viewing and distribution of images that aid in criminal investigations. The major concern about digital photography is its admissibility as evidence in court, since it can be manipulated with computer software or emerging technologies such as artificial intelligence. My research has revealed that no court has generally and plainly held a digital photo is to be admissible just because it is in a digital form. In my view courts should not impose a higher burden of proof for the admissibility of evidence from digital photographs merely because digital images are easier to manipulate Generally, in most countries the admissibility of photographs printed from a digital camera depends on proving their relevance, authenticity, reliability, and integrity, however, the exact requirements vary by jurisdictions. While it is true that in most jurisdiction the laws require that 5
electronic evidence to be authenticated before it is admitted, in Tanzania the position seems to have changed. Before 2023 the law in Tanzania that is Electronic Transactions Act, Cap 442 provided for the requirements or standards for admissibility of electronic evidence or data message such as computer-generated evidence that include photos printed from the digital camera like in our case. These requirements under Section 18 of the Electronic Transactions Act were amended/repealed by section 30 of the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 (Act No. 11 of 2023). The impact of such amendments are that the requirements of reliability, authenticity and integrity cannot be applied at admissibility stage rather during assessment of e-evidence by the court as per the new section 19 of the Electronic Transactions Act. This means that, the witness is just required to lay foundation, and the court can admit such evidence and the issues of authenticity, reliability trustworthiness and integrity are considered during assessment of the evidentiary weight before the court makes decision. For easy reference I wish to reproduce the old relevant section of the ETA in Tanzania before it was amended in 2023. That provision initially read as follows: 1 1 18.-(1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of data message on ground that it is a data message. (2) In determining admissibility and evidential weight of a data message, the following shall be considered- (a) the reliability o f the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained;
(c) the manner in which its originator was identified; and (d) Any other factor that may be relevant in assessing the weight of evidence. (3) The authenticity of an electronic records system " Reading between the lines on the above provision of the previous law it is clear that on those ending days of analogy and infant digital era admissibility of electronic evidence required the court to first determine whether the witness has addressed and proved the reliability of the manner in which the data message was generated, stored or communicated. The other standard for admissibility by that time included the reliability of the manner in which the integrity (authenticity) of the data message was maintained and the manner in which its originator was identified. However, the legal position on the requirements of admissibility of electronic evidence has been changed by the introduction of section 19 of ETA that repealed the previous Section 18 of the ETA. The new section 19 of the ETA now reads as follows: 9 - ( l ) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of data message on ground that it is a data message. The above provisions of the law now is to the effect that the Conditions for admissibility of electronic evidence was removed by the amendment of Electronic Transactions Act that was done through The Legal Sector Laws (Miscellaneous Amendments) Act 2023 and the Court can now just receive and admit electronic evidence. I am aware that in other jurisdictions like South Africa, Zambia, Zimbabwe, Zanzibar, The UK, USA, 7
Malaysia, India, Singapore, Hongkong, Uganda, Kenya and other many countries, pictures or photos printed from a digital camera or any computer print-out are generally admissible in court, provided they meet the tests of primary conditions such as relevance (the photo in our must be material and helpful to the case) and authentication (proof that the printed image is an accurate and unaltered representation of what it purports to depict), integrity and roper identification of the device or Source. Unlike Tanzania, in other jurisdictions, the reliability of a computer's output, integrity and authenticity of data message be it computer print-out, computer generated or computer stored is the most important factor in determining whether data or electronic evidence should be admitted into evidence. However, the legal position with regard to the requirements of admissibility of electronic evidence such as pictures or photos retrieved and printed from a digital camera or computer print-out in Tanzania is now different. It is now the legal position under section 19 (1) of ETA that as the matter of practice and law the witness is just required to lay brief foundations before such evidence is admitted. Once electronic evidence is admitted, the judge or magistrate is obliged to determine the evidential weight of such evidence basing on the standards under section 19 (2) of ETA to ascribe the probative value of the evidence before making decision. Indeed, the court in Tanzania has been entrusted with discretion powers by section 19 (4) to use its discretion to admit electronic evidence where the witness can be allowed to present electronic evidence in respect of any set standard, procedure, usage or practice on how electronic records are to be recorded or stored. For easy reference I wish to quote the
provision of that law that is ETA Cap 442 [R.E.2023]. That is section 19 (4) reads as follows: "4) For purposes of determining whether an electronic record is admissible under this section an evidence may be presented in respect of any set standard, procedure, usage or practice on how electronic records are to be recorded or stored, with regard to the type of business or endeavors that used, recorded or stored the electronic record and the nature andpurpose of the electronic record. This is where in my view his lordship Chief Justice with entrusted powers under section 4 of the Judicature and Application f Laws Act (JALA) Cap 358 can make rules of procedures to clarify the standards, procedure, usage or practice on how electronic evidence or electronic records are to be recorded, stored, admitted and assessed its evidentiary weight. In my view what is the witness required to do during admissibility of electronic evidence stage is just to lay the general foundation before tendering electronic evidence. See also M oham ed E n te rp rise s (T a n za n ia ) L im ite d V ersu s T anzania R a ilw a y s C o rp o ra tio n A tto rn e y G en eral, C iv il C ase N o. 7 O f2021, Mambi J. In our case at hand/the witness (PW2) has clearly laid foundation on how he retrieved and printed photos from the digital camera namely Canon EDS.5D mark 3 that was working properly and how he printed those photos from the camera before those photos were stumped by the court. Indeed, if it was the matter of lying foundation for admissibility of computer-generated evidence that is printer photos from the digital camera the witness clearly went beyond standard by explaining the type of digital camera namely Canon EDS.5D mark 3 where he retrieved and printed digital photos that are in electronic evidence from computer print - out. In my view this was 9
far enough than lying foundation for admissibility of electronic evidence. I wish to reproduce the brief testimony of PW2 as follows: "After taking photosI showed to the magistrate using my camera and laptop. I saved/ uploaded the photos to the laptop which was witnessed by the magistrate. The laptop (HP) belonged to our office but I was the one who using the laptop for storing photos of exhibits I askedpermission to the magistrate to print the photos I printed the photos using the office printer that I use". The camera has the capacity of taking quality pictures type of Pixel/ mega pixel 22 and above. That camera do not lose its photo quality. The camera can also enhance light from 100/% onwards. The camera quality has been approved by ISSO. I also preparedprinter type Epson serial No. L 850 movable. The printer is able to maintain the quality of the photo. Iam the custodian of the camera, printer and flash I mentioned at the court. I uploaded and saved the photos to the laptop with HP logo which was witnessed by the magistrate" It is clear from the above testimony by PW2, the witness has clearly laid foundation by demonstrating that the process he used to transfer the data (photos) from the digital camera to the computer and printer was entirely accurate and did not alter the image's contents. Worth also at this juncture referring the persuasive decision of the court in S ta te o f W ash ington vs. E ric H ayden, 1 9 9 5: In this landmark case a homicide case was taken through a Kelly-Frye hearing in which the defense specifically objected on the grounds that the digital images 10
were manipulated. The court authorized the use of digital imaging and the defendant was found guilty. It is the cardinal principle of law that a witness who was present at the scene or used the camera to produce photos and is familiar with the subject matter is sufficient and competent to testify that the printout accurately portrays the scene or object as he saw it. In other words the person who took the photo can testify, but it is not strictly required if a witness who knows the scene can verify the image's accuracy. See also R. v. H a ll, [1 9 9 8 ]B .C .J. N o. 2 5 1 5 (B .C .S .C .) There is no doubt that courts are now struggling to come up with foundation requirements that will permit the admission of relevant, computer generated evidence or digital evidence and, at the same time, protect the opposing party against human or machine error and unreliability. It is trite law that in the absence of evidence to the contrary, the courts will presume that mechanical instruments where evidence was obtained were in order at that material time. Even though courts, in exercising their discretion, do not often strictly enforce foundational requirements for authentication during admissibility, it is advisable that the proponent (witness) of the evidence be ready to supply the information that may be needed, such as details about the computer system which has generated the evidence. This means that the court is empowered to use its discretionary powers on presumptions as to when evidence can be admissible other. It is up to the judge or magistrate to use his or her discretionary powers provided by the law in determining what will be admitted under the law. It should also be noted that admissibility of data or electronic document is one thing, and its probative 11
value is quite another thing. See also S ta te o f B ih a r Vs S r i R adha K rish n a S in g h 1 9 8 3 A IR 684. In my view it is now high time for the avoidance of any conflicting decisions and this understanding on the standards admissibility of electronic evidence in all courts, to make legal reforms to fill any legal ■ gap. This can be done through the powers of the Chief Justice Tanzania under Section 4 of the Judicature and Application of Laws Act (JALA) Cap 358 to make detailed rules of procedures that will provide for guiding principles of admissibility and assessment of its evidentiary weight of electronic evidence. Basing on the above reasoning, I find that the objection raised by the learned Counsel for the third and fourth accused that before electronic evidence is admitted it must pass the test for the standard of reliability, trustworthiness and authenticity has no merit since those old requirements have been removed by the current law that is section 19 of ETA, Cap 442 [R.E.2023]. It should be noted that, as of now the reaming standards or requirements of electronic evidence are determined during assessment of evidentiary weight of electronic evidence before the court makes its decision. The relevant provision on the standards of tests of assessment of evidentiary weight of electronic evidence are found under section 19(2) which provides that: "In determining evidential weight o f a data message, the following shall be considered: (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; 12
(c) the manner in which its originator was identified; and (d) any other factor that may be relevant in assessing the weight o f evidence. (3) The authenticity of an electronic records system in which an electronic record is recorded or stored shall, in the absence of evidence to the contrary, be presumed where (a) there is evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact o f its not operating properly did not affect the integrity o f an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic records system; (b) it is established that the electronic record was recorded or stored by a part to the proceedings who. is adverse in interest to the part seeking to introduce it; or (c) it is established that an electronic record was recorded or stored in the usual and ordinary course ofbusiness by a person who is not a part to the proceedings and who did not record or store it under the control of the part seeking to introduce the record". The above provision is dear that the court is only obliged to invoke the requirements of standard of reliability, integrity and authenticity when determining evidential weight o f a data message or electronic evidence" The learned counsel also averred that there was a need for an expert witness to prove that the camera and printer were operating properly when the photos were produced by the digital camera and printed by printer. This makes me to ask myself who could be an expert witness to tender and authenticate electronic evidence in court?. Is there any qualification for one to tender and authenticate electronic evidence if needed? In my view and as the matter of practice and according to case laws any testimony of electronic evidence such as computer generated evidence or computer print-out like photos produced by digital camera can be done by any witness who has just first-hand knowledge of the 13
relevant facts on that evidence. This can be petrographer like in our case or the witness who is conversant with the mater in fact or who knew what the computer that generated evidence did and how. The witness doesn't need to have special qualification, appointment or gazettement for him to quality to tender electronic evidence. In England the Court (the House of Lords) in R v S h e p h a rd [1 9 9 3 ]A C 3 8 0 clarified as to who can qualify to tender or authenticate electronic evidence such as computer generated evidence any data message. In that case, a woman was caught with goods from shopping mall or supermarket without receipt and the till rolls from the central computer did not show records of any sale of the goods in question. The defence raised an objection on the qualification of witness but House of Lords in upholding the conviction of the accused confirmed that it would rarely be necessary to call expert witnesses and, in most cases, the requirement in section 69 of the Police Evidence Act, UK (PACE) could be satisfied by calling a witness who was familiar with the computer and who knew what it did and who could confirm that it was operating properly at the relevant time. In other words an expert witness can just have first-hand knowledge of the relevant facts, such as what the data is and how it was obtained from the computer or whether and how the witness's business relies upon the data. In my view, I don't believe that expert testimony to show whether the electronic evidence was manipulated or whether the computer or camera in our case was operating properly is required when there is no indication that photographs generated from the digital camera had been enhanced or altered in any way." See also the persuasive decision in Owens v. S ta te , 3 6 3 A rk . 413, 421 (A rk . 2005). It follows that the mere 14
possibility that the photo or data may have been altered goes only to the weight of the evidence under section 19 (2) and not its admissibility under section 19 (1) of TEA. The court in U n ite d S ta te s v. B o n a llo , 8 5 8 F.2 d 1427, 1 4 3 6 (9 th C ir. O r. 1 9 8 8 ) observed that: " . . . a mere claim thatphotographs may be altered should not bar their admission. The proponentis not required to prove a negative." United States v. Harris, 5SM .J. 433, 440 (C.A.A.F. 2001 Generally, witnesses who testify to the authenticity of computer records (though that is not the legal requirement under section 19 of ETA) need not have special qualifications. In most cases, the witness does not need to have programmed the computer himself or even understand the maintenance and technical operation of the computer or digital camera. See U n ite d S ta te s v. S a ig a d o , 2 5 0 F .3 d 438, 4 5 3 (6 th C ir. 2001). In my view the requirement of section 19 of ETA could be satisfied by calling a witness who was familiar with the computer or digital camera in our case and who knew what it did and who could confirm that it was operating properly at the relevant time. There is no doubt that determining the authenticity or reliability of computer evidence or data message before such evidence is regarded admissible might be a hard task for both parties and the court. As a starting point the court might follow the common law presumption underscored by Lord Stephen Brown J. in C a stle v. C ro ss[1 9 8 4 ] 1 WL 1 3 7 2 A T 1377B . The court in this landmark case for presumption of authenticity of electronic evidence categorically stated th a t, "In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at that material time". 15
It follows that in the absence of evidence to the contrary, the courts will presume that mechanical instruments or computer system including digital camera where evidence was obtained were in order at that material time. S ee M USA Z A M B I VS. E R IC K M IN G A , C IV IL A PPEA L N O 1 3 o f 2 0 1 9 a t M beya, M a m b iJ. in our case at hand, since the witness laid the proper foundation by infirming the court the way printed photos were reproduced from the digital camera that is analogous to the computer system that was secure, it was satisfied that there was "substantial compliance" with Section 19, of the ETA as a competent witness. In this regard during admissibility as per section 19 of ETA there is no legal requirement of proving reliability and integrity or authenticity of electronic evidence. What is important in my view is the court to satisfy itself on the witness ability to convince the court that digital evidence is worthy of reception. In this regard admission into the court is not dependent on the high qualifications and competence of the tendered expert, it is rather simply the witness with first-hand knowledge who has the knowledge on the fact in issue. Now coming back to our case at hand, as I alluded above, since the witness has demonstrated and explained how the printed photos from the computer device that is the digital camera were retrieved, the requirements of section 19 of the ETA has been met. The witness has also explained the visuality and power of the camera he used and how such camera captured the photos. Indeed, the foundation testimony of the witness has satisfied the court that the sources of photos in a form of computer print-out, method and time of preparation were such as to indicate their trustworthiness and justify its admission. 16
From the reasons stated above, I am of the settled view that the preliminary objection raised by the defence counsel through the learned Counsel Mr. Wilson Ogunde on the admissibility of electronic evidence has no merit. In the premises, I overrule preliminary objection raised by the defence counsel and order the matter to proceed on the basis that the computer-print out evidence in from the digital camera qualify admissibility under section 19 of ETA read together with section 70 of the Evidence Act, Cap 6. I thus entirely agree with Marietha Maguta, the learned State Attorney that the witness (PW2) has complied with the requirements of section 19 of ETA. Ruling delivered in Chambers this 4th day of June 2026 in presence of both parties. 17