You got it on camera, but it is not evidence enough in court

Fact number one: Having CCTV footage of a criminal caught in the act is not guaranteed evidence to pin him or her down in court.

Fact number two: That compact disc that is part of your case file, and which your lawyer says will convince the judge to rule in your favour after watching its contents, can be struck out any time.

Fact number three: In 1838, Charles Dickens’ novel, Oliver Twist, introduced the saying, “The law is an ass.”

A state prosecutor learnt the first fact the hard way in 2011. According to a ruling published in the Kenya Law Reports, one Barisa Wayu was facing criminal charges and CCTV footage had been written on a CD as part of the evidence against him.

The counsel, a Mr Ondari, believed that the footage recorded by cameras at Karama Hotel in Mombasa would help him prove a point before High Court judge Maureen Odero.

However, the judge turned down the production of the disc after opposition by the defence lawyer. She explained that the law did not allow admission of material that had already been transmitted to another medium without a certificate.

“The court wonders why police had to complicate matters by making a CD (recording) out of the CCTV footage. It would have been far more logical to produce the CCTV footage in its raw form,” the judge said.

What is more, by July 22, 2011, when the ruling was made for the crime committed in 2008, the original video had been discarded on the assumption that the disc was enough.

The second fact dawned on 2013 Siaya governorship aspirant William Oduol as he engaged in an election case against the winner, Cornel Rasanga.

His legal team had lined up one of his chief campaigners, Augustine Ogae, as a witness. Ogae’s testimony was backed by a CD that was said to carry a video clip he had captured using his Nokia phone. It contained, he said, footage of an election clerk who was caught with marked ballot papers as he prepared to stuff them into a ballot box.

Because the clip had been transferred from a phone to a disc without a certificate, Justice Aggrey Muchelule said it could not hold.

“(Ogae) may be the owner of the phone handset, but said nothing about its working condition. There was no evidence regarding the computer used (to create the CD), its condition or reliability. There was no evidence to show that he was the one who owned, operated, and managed the computer,” he said in his decision of June 5, 2013.

Fast-forward to August 2014. Miles away in Florida, evidence collected from the phone of a murder suspect was presented in court.

CBS Miami reports that part of the prosecution’s material against 20-year-old Pedro Bravo, who faced charges of killing his roommate in 2012, was obtained from the suspect’s iPhone. It was a photo file with a text transcript of oral communication with the phone’s artificial intelligence interface called Siri.

The court heard that the suspect asked Siri where he could hide a body, after which it responded, “What kind of place are you looking for?” It then gave him four options: swamps, reservoirs, metal foundries, and dumps.

Bravo’s lawyer, as expected, said such information could not be relied on because there was a possibility that it was created by a person other than the accused.

However, the fact that it was tendered in court is enough ground for making comparisons between Florida’s and Kenya’s legal regimes with regard to handling digital evidence.

The Kenyan law on evidence, first created in 1963, was amended in 2009 to accommodate material from electronic devices. It has four main requirements that such evidence needs to meet before it can be admitted. Key among them is a certificate.

The certificate should be a statement from a person who has “direct control” of any device that was used to generate the evidence. It should be signed by that person and should elaborate the process that was used to transfer the information from its raw state to the form in which it is presented in court.

The condition of any device used in the process of creating it and a signature from the person who was in legal possession of the gadget should also be provided.

Justice Muchelule ruled that the person who had copied the clip from the phone to the computer had not created such a certificate to make the CD acceptable.

He noted that a court has to be convinced that what is alleged to be original electronic evidence was processed using a known procedure, and found that Oduol’s witness had not given such details.

“It cannot be ascertained that the computers used in the production of this CD were operating properly and therefore that its content is accurate,” he noted.

“The reason the particulars of the computers used in the production of the CD had to be given (and such particulars would include the make and the serial numbers) is so that, if it becomes necessary, one can trace the devices for audit purposes.”

The reason courts treat such evidence with care, he said, is that it can be manipulated without leaving behind any trace.

“Compared with physical or other forms of exhibit evidence, electronic evidence is relatively more difficult to detect and to trace signs of tampering. It can be changed or manipulated much more easily than paper or other forms of evidence without having any obvious trace of such alteration,” he said.

Since 2009 when the law on electronic evidence was assented to, interpretation of what a certificate is has been problematic for lawyers and prosecutors alike.

The most famous case of electronic proof falling on its face before a court is the 2011 acquittal of Migori senator Wilfred Machage and his co-accused over hate speech charges.

Machage, who was then Kuria MP, together with the then Mt Elgon legislator Fred Kapondi and businesswoman Christine Nyagitha Miller, had been accused of making utterances likely to stir ethnic strife in the run-up to the 2010 constitutional referendum.

The core material against them were video clips that alleged to have captured them making the utterances.

Nairobi chief magistrate Gilbert Mutembei let them go on December 14, 2011, saying the certificates required to make the electronic evidence admissible had not been provided.

But, aware of the stringent requirements that come with the production of such evidence, Justice Said Chitembwe, sitting at the High Court in Kakamega last year, said he would turn a blind eye to some of those requirements for the sake of offering substantive justice.

“Article 159 of the Constitution requires courts to dispense justice without undue regard to technicalities,” said Justice Chitembwe. “Shutting out the CDs on the basis that they were not authentic or the gadgets used have not been described will be tantamount to obstructing substantive justice.”

The judge was deliberating on a case filed against Kakamega Governor Wycliffe Oparanya and noted that a judge should not be expected to be automatically convinced after watching a video recording of “evidence”.

“Even if the CDs are produced and watched by the court, that does not mean that the court will automatically be convinced about what it will see,” he said in response to opposition to Oparanya’s legal team.

Merciful approach

A similarly “merciful” approach was taken by Nairobi-based judge Erick Ogolla in a decision on March 12 this year.

Justice Ogolla was hearing a dispute over alleged copyright infringement against a literary work called Weddings With Nonny Gathoni.

The judge was urged to reject DVDs that Gathoni had presented to the court in her bid to prove that her show idea had illegally been copied by one Catherine Masitsa and the Standard Group.

He concluded that there were actually no valid certificates to have him accept the digital versatile discs, but that he would not strike them out. Instead, he gave the accusers time to prepare the certificates.

“The DVDs attached by (Gathoni and her co-accuser, Jane Wambui) are not accompanied by a certificate as required under the Evidence Act,” said Justice Ogolla. “It, therefore, follows that the said DVDs are inadmissible as evidence.

“However, in the interest of justice, it is my view that they are at liberty to produce such certificate for the admissibility of the said evidence. When that is done, the court will be able to examine the evidence and evaluate the probative value of the said DVDs as well as their authenticity.”

Many grey areas

According to legal counsel Joseph Ouko of Nairobi-based Jose Wakili Consultancy Group, handling of electronic evidence still has many grey areas.

In an article titled What You See Is Not What You Get, Ouko says that even with amendments to the telecommunications law and that on production of digital material, there are still misunderstandings.

“Some doubts linger about whether and how evidence captured, preserved, and/or produced by electronic means is to be produced in court,” he says.

He lists the case of Edward Kirui, a policeman who was let off the hook despite a video that captured him shooting at protestors in Kisumu during the 2008 post-election violence, as one of the most controversial examples that can be cited while discussing the topic.

“Part of the evidence adduced by the prosecution was news video footage. It shows a policeman covertly approaching a group of civilians before breaking his cover and firing in their direction. Two of the civilians then lie on the ground, apparently injured, and the police officer is seen approaching them and then kicking at one of them before discharging another round from his gun at an unseen target.”

He goes on: “The court admitted the video evidence and, based on it and the testimony of the witnesses, it was satisfied that the accused was the person in the video.

“However, a crucial discrepancy arose in the evidence between the identity of the gun carried by the accused person and the firearm given to the ballistics officer.

“The judge later released him, saying: ‘Even though he was captured on film as he appeared to shoot two victims, this court is unable to reconcile those facts with the finding by the firearms examiner, who concluded that the fatal bullet was discharged from a gun that was different from the one which the accused had.’”

The counsel notes that it is not the legal system that is too harsh about the use of such evidence.

“Electronic evidence, and indeed any other form of evidence, is not precluded from admissibility merely on the basis of the manner in which it is collected, preserved, or presented. All evidence is admissible, as long as the court is satisfied that it was properly collected and preserved,” he says.

Ouko notes that people are aware of how powerful such material can be and that is why many lawyers’ instinct is to fight it.

“In many cases, electronic evidence usually has the highest value in a case. Perhaps that’s the reason the opposing party frequently objects to its production.”