Is video or electronic evidenceadmissible in court in Kenya? If so, are there any special conditions governingthe production of such evidence? Where the prosecution does not object to theproduction or the integrity of electronic evidence, can a court properly insistthat any such conditions must still be met? A profile of two recent cases that shinethe spotlight on one of the most contestable areas of legal practice: Republicvs Edward Kirui and Republic vs. Wilfred Machage & others
InRepublic v Kirui, the High Court looks at dramatic news video footage of anapparent shooting of civilians byanti-riot policemen and in Republic vWilfred Machage & Others, the Nairobi Chief Magistrate’s Courtconsiders the admissibility of archival media footage apparently capturingpoliticians uttering allegedly hateful and inciting words. In both cases, theaccused persons are acquitted – in Kirui’scase the video evidence was admitted but his acquittal was based on otherevidence, and in Machage’s case thevideo evidence is found to be in-admissible and the remaining evidence is foundnot to be sufficient to sustain a conviction. Before we look at the facts andfindings in these two cases, some commentary about the law on electronic evidencein Kenya:
Legal uncertainties Theproduction of electronic evidence – particularly video footage, voice or soundrecordings, computer-generated print-outs of emails, etc, continues to be oneof the most misunderstood areas of legal practice. Even though recentamendments to the Kenya Communications Act, 1998 (now the Kenya Information andCommunications Act, 1998) and the Evidence Act removed most of theuncertainties regarding the admissibility of electronic evidence, some doubtslinger about whether and how evidence captured, preserved and/or produced byelectronic means is to be produced in court.
Atthe heart of some of these doubts are the following concerns:- Electronicevidence is highly volatile. It can be changed or manipulated much more easilythan paper or other forms of evidence.- Compared withpaper or other forms of exhibit evidence, it is relatively more difficult todetect and trace the signs of tampering with electronic evidence. - Computerequipment runs on an artificial intelligence which receives, interprets andapplies human commands. This artificial intelligence has been known to go awry(system crashes, viruses, botnets…), compromising the integrity of the materialcaptured, preserved or presented using the equipment.- The capturing,preserving and presenting of evidence in electronic form requires a measure oftechnical knowledge in the operation of the electronic equipment. Many lawenforcement officers may not have the knowledge, skills and forensic tools tohandle such equipment or to deal with such evidence.
Electronic evidence is usually the bestpossible evidenceFirstof all, let us dispose of the mis-educated and exclusionary approach that‘video evidence, tape recording, emails, electronic documents are notadmissible in evidence’. The answer to this is the general rule of evidencethat any kind of evidence is admissible in court to prove any matter in issueas long as it has probative value (which is lawyer-speak for ‘as long as it isrelevant to the determination of the dispute’). Therefore, electronic evidence,and indeed any other form of evidence, is not precluded from admissibilitymerely on the basis of the manner in which it is collected, preserved orpresented. All evidence is admissible, as long as its probative value isestablished and the court is satisfied that it was properly collected andpreserved. In fact, in many cases, electronic evidence usually has the highestprobative value – imagine if in a murder case the court was shown video footageof the murder. Perhaps that’s the reason why the opposing party/lawyerfrequently objects to its production.The EvidenceAct (Cap. 80)Kenya’sEvidence Act (section 106B) provides for the procedure and the conditions thatneed to be met in order for information contained in an electronic record to beadmitted as evidence in court proceedings. These conditions are in the natureof statements made in evidence for the purpose of satisfying the court as tothe integrity and reliability of the electronic record being produced inevidence. They include satisfying the court that:· The electronicrecord was produced, fed into or derived from the computer in the ordinarycourse of business by a person having lawful control over the computer;· The computer wasoperating properly or if there was any way in which it was not operatingproperly, then such malfunction was not of such a nature as to affect theelectronic record or the accuracy of its content.
Thesection further provides that these conditions may be satisfied by theproduction of a ‘certificate’ signed by a ‘aperson occupying a responsible position in relation to the operation of therelevant device or the manager of the relevant activities’ identifying theelectronic record and the manner in which it was produced and/or giving theparticulars of any device involved in the production for the purpose of showingthat the record was produced by a computer.
The CasesRepublicv Wilfred Machage, Fred Kapondi Chesebe & Christine Nyagitha MillerNairobiChief Magitrate’s CourtCriminalCase No. 1140 of 2010Judgment:December 14, 2011G.C.Mutembei, Chief Magistrate
Thethree accused persons were an Assistant Minister (also an MP) in the governmentof Kenya, a member of parliament and a political activist respectively. Theywere charged with the offence of ‘hatespeech contrary to section 13(1)(a) as read with subsection (2) of the NationalCohesion and Integration Act No. 12 of 2008…with intention to stir up ethnichatred”.
Thecharge related to words allegedly uttered by the accused at a political rallyon June 9, 2010. According to the prosecution, Geoffrey, a journalist from K24,a local television station, had been at the event in the company of Michael, acameraman, and they had recorded video footage which included the statementsuttered by the accused persons. Geoffrey had later transferred the footage to a‘Mac computer’ at K24, edited it and used it to run a news story that evening.On August 2, 2010, K24’s management authorized for the footage and the newsstory to be released to investigators. The footage that was ultimately producedin court was a 40-minute archival footage which Geoffrey told the court hadbeen generated by K24’s archives department and had been edited out of theoriginal footage recorded by Michael.
Michael,who was also called as a prosecution witness, corroborated Geoffrey’s evidenceand stated that his (Michael’s) work had been only to record the video andmonitor sound quality and he could not relate to the court from his own memorywhat the accused persons had said during the event.
TheCourt made the following findings:1. The electronicevidence in the form of the video footage that the prosecution intended to relyon was not made by Geoffrey, who was producing it in court. Rather, as Geoffreystated, the footage had been extracted and edited in his absence by other personsfrom original footage recorded by Michael, the other witness. This would meanthat Geoffrey’s evidence on the fact as to how the footage was produced washearsay evidence as the maker of the record was not called as a witness.2. Further, theprosecution had failed to show to the court a certificate signed by a personhaving a responsible position in relation to the operation of the devices thatproduced the footage or the activities relating to the production:a. To identify theelectronic record containing the statements which the accused persons were saidto have uttered and to describe the manner in which the record was produced; orb. To give theparticulars of any device involved in the production of the electronic recordin order to show that the record was produced by a computer;c. To deal with anyother matters to which the conditions mentioned in section 106B of the EvidenceAct relates.3. Therefore, thecontents of the electronic recording had not been proved in accordance with theEvidence Act and the video footage was therefore not admissible in evidence.4. Without theelectronic record, the only other evidence against the accused persons was theeyewitness testimony of Geoffrey and Michael. From their own memory, thesewitnesses could not tell the court whether they had heard the accused personsutter the hateful and inciting statements alleged by the prosecution.5. The prosecutionhad failed and/or neglected to comply with clear provisions of the Evidence Acton the production of Electronic Evidence. This evidence was crucial and itsomission was fatal to the prosecution’s case.All three accused persons found notguilty and acquitted.
Republicv Edward Kirui [2010]eKLRHighCourt at Nairobi (Nairobi Law Courts)CriminalCase No. 9 of 2008June21, 2010JusticeF.A. Ochieng
Thiswas a case in which a police officer was charged with murder and whichgenerated a considerable amount of publicity, being one of the few cases basedon events that were said to have occurred during the period of violence and chaosthat followed Kenya’s General Election of December 2007.
Theaccused person, a police officer, was charged with the murder of two young men,George Onyango and Ismail Chacha, who were said to have been shot dead onJanuary 16, 2008 as they protested the outcome of the general election inKisumu City. Part of the evidenceadduced by the prosecution was news video footage which captured a standoffbetween anti-riot police and protesting civilians. In the footage, a policemanis seen covertly approaching group of civilians before breaking his cover andfiring in their direction. Two of the civilians then lie on the ground,apparently injured, and the police office is seen approaching them and thenkicking at one of them before discharging another round from his gun at anunseen target.
Thefootage had been taken by Baraka, a cameraman at KTN, a local televisionstation, and adduced in court by Peter, an editor with the network. The footagewas produced in two versions, one running at normal speed and the other one inslow motion. A number of prosecution witnesses stated that the police officercaptured in the footage was the accused person. The Court admitted the videoevidence and based on it and the testimony of the witnesses, it was satisfiedthat the accused was the person in the video.
However,a crucial discrepancy arose in the evidence between the identity of the guncarried by the accused person and the firearm given to the ballistics officer.According to the accused person, he had been issued with a firearm bearing theserial number 23008378. This, according to the police officer in charge of thepolice station where the accused person was stationed, was the serial number onthe firearm recovered from the accused. On the other hand, the firearm examinedby the ballistics expert, and which was said by the expert to have been the onethat fired the bullets retrieved from the body of one of the victims, bore theserial number 3008378. The court cross-referred the evidence to satisfy itselfthat the discrepancy was not out of a typographical error.
Previously,in a case also involving a discrepancy in gun serial number - Eric Akeyo Otieno v Republic [2008]eKLR,- in which the High Court had found that the discrepancy had been out of anhonest and reasonable error, the Court of Appeal had declined to affirm theconviction of the accused person after it observed that the discrepancy gaverise to a reasonable doubt about whether it was the accused person’s gun thathad been used to shoot the victim in that case.
Basedon the authority of the decision of the Court of Appeal, the Court in this casestated that it had no choice but to find that the prosecution had failed to establishthat the fatal bullet had been fired from the gun issued to the accused person.
AsJustice Ochieng observed: ‘…even though all the other evidence adduced showsthat the accused was positively identified at the scene of the shootingincident… and even though he was captured on film as he appeared to shoot twovictims; this court is unable to reconcile those facts with the finding by theFirearms Examiner who concluded that the fatal bullet was discharged from a gunthat was different from the one which the accused had”.
Theaccused person was found not guilty and acquitted.
