10 Apr 2014

Parliament has passed the Electronic Records (Evidence) Bill without amendments.

When presenting the bill, the Minister of Defence, Justice and Security, Mr Dikgakgamatso Seretse said the bill sought to provide for the admissibility of documentary evidence produced by an electronic records system.

“The Criminal Procedure and Evidence Act (Cap 08:02) and Evidence in Civil Proceedings Act (Cap 10:02) provide for admissibility of documentary evidence but they do so in general terms which do not make any specific provision for the admissibility of records produced by an electronic records system,” he said.

Mr Seretse said rules relating to admissibility of evidence in general will still apply to admissibility of electronic records as evidence. He said the best evidence rules stated that where a fact or an event was to be proved by means of a document, the original of such document must be used.

He said authentication would require attestation of a signature by an administrative officer to a document. The proposed bill also provided that where an electronic record was tendered in evidence, such an electronic record shall be admissible if it was relevant and if it was produced in an approved process.

Minister Seretse said the Communications Regulatory Authority, to be an independent regulatory authority responsible for regulation of the communications sector comprising telecommunications, internet and ICT’s, shall be the certifying authority for purposes of this act.

He said Clause 6 of this bill provided that where an electronic record is obtained from an electronic records system and duly certified as such by the certifying authority in relation to the operation or management of the approved process, it shall be presumed that it accurately reproduces the contents of the original record unless the contrary is proved.

The minister further said an approved process shall be prescribed in regulations, and shall set out a standard to ensure integrity of the electronic records system in so far as reliability was concerned (including reliability of the system to reproduce the contents of the original record).

He said the certifying authority will not approve the process unless satisfied that adequate risk management safeguards have been put in place to prevent unsecured exposures.

Supporting the bill, MP for Serowe South, Dr Pelonomi Venson-Moitoi said the bill should be read in conjunction with the cybercrime law, adding that many people have for a very long time did a lot of things and got away with them online.

She, however, expressed reservations that said there might be limitation as to concerning the sophistication equipment used and that in some cases where documentation is extracted with electronic seals and signatures, colour prints, which are not everywhere in the country.

“This might be a brilliant idea that might not work because we may be limited in how far we can go throughout the country,” she said. She also called for public education on the law especially free-talk online. She said people tend to go overboard because they think they are alone, whereas they talk to a larger audience.

MP for Kanye North, Mr Kentse Rammidi said the law was trampling with freedom of expression, but admitted that to some extent the bill was meant for a good course because some people were taking advantage of the internet and went overboard.

Palapye MP, Mr Moiseraele Goya said the bill was a noble one and was overdue because most of communications were kept digital because they were generated digital.

He said many people have lost cases because evidence that they could produce to defend themselves was in electronic form and courts could not accept such because of lack of this legislation.

Maun West MP, Mr Tawana Moremi said the bill came at the right time because the globe was moving with ITC and expressed he was happy that commerce will now be facilitated through electronic signatures.

MP for Mahalapye East, Ms Botlogile Tshireletso said the law will bring order to the slowly ailing society that spoke indiscriminately online about other people. She said the law would also assist in the court of law, where somebody was unable to attend the court/case proceedings.

Lobatse MP, Mr Nehemiah Modubule differed with other MPs and proposed that the proposed Bill be discussed at a later date. He said in order to do justice to the bill, it was important that they understood it in details.

Mr Modubule said the bill was only published in February, this year and that MPs never had a time to consult electorates and scrutinise it with the assistance of the experts in electronic records. He said he felt the bill was important but, was done in a rush without taking everyone on board. Ends