Electronic Contracts in

Tanzania“A Present Legal Battle”

21/08/2014

Presentation by Linda KamuzoraLegal Intern Barclays Bank Tanzania

Contents• Review on the Law of Contract.• Proof of a contract – Intention to

create legal relations.• What is an Electronic Contract?• Legal position on Electronic

Contracts in Tanzania.• Electronic Communications and

Transactions Act 2002 (South Africa).

21/08/2014

• Kenya Communication Amendments Act No.1 2008.

• Tanzania Electronic Transactions and Communications Bill 2013.

21/08/2014

Review: What is a contract?• A legally binding agreement made

between two parties or more, which is enforceable at law.

• “… a promise or set of promises for the breach of which the law in some way or an agreement between two or more persons which is intended by them to be legally enforceable.’’

21/08/2014

• “An agreement is further defined under s2(1) of the LCA Cap.345 to mean every promise or set of promises, forming the consideration for each other.

• Can be either Written or Orally spoken.

• Covered under The Law of Contract, Cap.345 R.E 2002

21/08/2014

A contract; Terms of a contract

21/08/2014

OFFER

ACCEPTANCECONSIDERATI

ON

Proof of A Contract• Intention to Create Legal Relations:

An agreement made within a business context is presumed to be legally binding unless evidence can show different intent.-Balfour v. Balfour (1919)-ESSO Petroleum Co. Ltd V. Commissioners of customers of customs and Excise (1976)

 21/08/2014

Electronic ContractsThey are defined as;– Contracts made using computers, either via e-

mail or the Internet, or that involve computer related products, such as databases and software.

– any kind of contract formed in the course of e-commerce by the interaction of two or more individuals using electronic means, such as e-mail, the interaction of an individual with an electronic agent, such as a computer program, or the interaction of at least two electronic agents that are programmed to recognize the existence of a contract.

21/08/2014

• Used in commercial transactions, key examples being Banks, Mobile Banking, online shopping and many others.

• Upon introduction in Tanzania, has led to the easy command of transactions between entities since it commands flexibility in practise.

21/08/2014

M-banking• Mobile financial services delivered by

way of mobile networks using mobile phones.

• Bank Of Tanzania Act 2006 s.6 (The BOT Act)

• Tanzania Communication and Regulatory Authority (TCRA)

• Tanzania Communication Regulatory Act Authority Act 2003 (the TCRAA)

• Electronic and Postal Communications (Licensing) Regulations (EPCR) 2011

21/08/2014

• Electronic Payment Schemes Guidelines 2007 (the EPSG)

• Mobile Payments Regulations (Draft) (MPR)

• Terms & Conditions for Agents & Customers

21/08/2014

Advantages• Current wave of the future

globalisation economies • Easy replacement of paper

documents• Time efficient• Flexible-not fixed• Few costs incurred

21/08/2014

Challenges facing E-Contracts in Tanzania

• Current legal position• Poor bargaining power• Impaired freedom of contract

21/08/2014

Legal Position on E-Contracts in Tanzania

• UNCITRAL MODEL LAW on Electronic Commerce 1996

• Law of Evidence Act 1875 (India) = Tanzania Law of Evidence Act

• Banker’s book under s78 & 79 of the Law of evidence act= connotes book used in the ordinary business of a bank

• Asylum for Idiots v. Handy Sides, 22, TLR21/08/2014

S.78 & 79 Tanzania Evidence Act

• s.78. (1) A copy of an entry in a banker’s book shall not be received in evidence under this Act.

• 79 (1) A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct.’

21/08/2014

• Prior 2007, electronic documents or data messages were not admissible under the legal system in Tanzania.

• Most laws advocated for original evidence “Best Evidence Rule’’-excluded the admissibility

• In Lazarus Mirisho Mafie & Another vs. Odilo Gasper Katenga, Comm Case No.10

21/08/2014

• Makaramba J, “refused to embark on judges made law & argued the business of creating rules and admissibility and validity of electronically stored information should be left to legislature’’.

• Furthermore, s3 & s36 of the Amending Act No.2 of 2006- amended s78 by adding s.78A of the Law of Evidence Act.

• Tanzania Cotton Marketing Board vs. Cogecot Cotton Company ,SA (1997)

21/08/2014

• Exim Bank (T) Ltd v. Kilimanjaro Coffee Company Limited (2011)

• However, in the landmark case of Trust Bank Tanzania Ltd v Le Marsh Enterprises Ltd and Others (2007), the High Court of Tanzania considered the admissibility of computer evidence.

• Issue: “Whether a computer print out is a banker’s book under the Evidence Act.”

21/08/2014

• Nsekela J;“It is in this spirit that I am prepared to extend the definition of bankers’ books to include evidence emanating from computers, subject of course to the same safeguards applicable to other bankers books”.

 

21/08/2014

Following [Commercial Case] Trust Bank..

• Mentioned case law marked the admission of electronic evidence in the Judicial system in Tanzania

• Banker’s books were stretched to include computer print outs

• Written Laws (Miscellaneous Amendment) Act No.15 of 2007

21/08/2014

• Amended s40 by adding s40A provides for the admission of electronic evidence in criminal proceedings

• Electronic records such as emails, and print out statements are admissible as evidence only in banking under civil procedure proceedings.

• S78 & 79 of the Law of Evidence Act set out requirements for the admissibility of these evidences. i.e. a certificate of origin

21/08/2014

Admissibility of statements produced by Computers

• In any civil proceedings a statement contained in a document produced by a computer shall, subject to the rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible.

• Was produced during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over  that period.

21/08/2014

• That over period there was regularly supplied to the computer in the ordinary course of those activities information.

• That throughout the material part of that period the computer was operating properly

• That the information contained in the statement reproduced is derived from information supplied to the computer in the ordinary course of those activities

21/08/2014

Electronic Communications and Transactions Act (July) 2002

(South Africa).• To provide for the facilitation and

regulation of electronic communications and transactions;

• To provide for the development of a national e-strategy for the Republic;

• To promote universal access to electronic communications and transac tions and the use of electronic transactions by Small Medium Micro Enterprises;

21/08/2014

• To provide for human resource development in electronic transactions; to prevent abuse of information systems; to encourage the use of e-government services;

• S15 of the South Africa Electronic Transactions and Communication Act, No. 25 of 2002 provides for admissibility of electronic evidence in Electronic Transactions.

21/08/2014

Kenya Communication Amendments Act No.1 2008.

• Assented 30th December 2008• Commenced on 2nd January 2009• To facilitate the development of the

information and communications sector including broadcasting, multimedia, telecommunications, postal service and electronic commerce.

• Acknowledges electronic signatures.

21/08/2014

So where are we now??

21/08/2014

Tanzania Electronic Transactions and

Communications Bill 2013• The Government of Tanzania is in a process of tabling before the Parliament, the Electronic Transactions and Communication Bill 2013 (hereinafter referred as ETC Bill 2013)

• to facilitate e-commerce.• Despite the Bill providing for recognition

and validity of electronic contracts, and electronic signature it overlooks admissibility of electronic evidence in E-Commerce transaction

21/08/2014

• The proposed Bill does not amend Written Laws Miscellaneous Amendment Act No. 15 of 2007.

• Which, covers certain aspects of electronic evidence, particularly admissibility of electronic evidence in criminal proceedings, and bankers’ books as evidence in civil proceedings. 

• The ETC Bill 2013 seems to be a replica of South Africa’s Electronic Transactions and Communications Act, Act No.25 of 2002. 

21/08/2014

Questions

21/08/2014

Thank you for listening.

21/08/2014