ADMISSIBILITY OF AUDIO AND VIDEO EVIDENCE IN ZIMBABWEAN COURTS: AUTHENTICATION AND CONSENT

The legal system in Zimbabwe is gradually embracing the use of electronic evidence such as audio and video recordings. While this shift is still somewhat in its early stages, it marks an important development in how courts handle evidence particularly in civil cases. For ordinary people who might be wondering whether such evidence can be used in court, this article helps to understand the current legal position and what the future might hold.

The legal foundation: The Civil Evidence Act and authentication.

Traditionally, Zimbabwean courts have relied mostly on written and oral testimony, however the Civil Evidence Act [Chapter 8:01] provides for the admission of electronic evidence. As technology advances and everyday life becomes more digital, the courts have found it necessary to accept digital forms of evidence. This is despite the limited detailed jurisprudence especially in civil matters. 

Section 13 of the Civil Evidence Act, is particularly important as it creates a pathway for electronic evidence, including audio and video recordings to be admitted in civil proceedings. This section provides a clear pathway for electronic evidence to be admitted in civil proceedings. The most important requirement under this Act is authentication. A party cannot simply submit a video clip or audio recording, they must prove it is genuine, unaltered and what it purports to be.

In practice, this means that the party presenting the electronic evidence needs to support its authenticity through an affidavit. This is a written statement sworn to be true before the court. This step helps prevent fake or tampered evidence from influencing the justice process. This also ensures fairness to all parties involved.

The Question of Consent: the Cyber and Data Protection Act.

Apart from the Civil Evidence Act, the Cyber and Data Protection Act [Chapter 12:07] also plays a significant role. It introduces, another key consideration: consent. Section 10 of this Act addresses the issue of consent in handling electronic data. It states that for non-sensitive data, one party’s consent is enough to produce such evidence in court. This provision is useful in civil disputes where a party objects to the use of electronic evidence, making it easier to submit such materials without complicated hurdles.

Judicial modernisation: The IECMS and a changing attitude.

The judiciary is also modernising with technological tools.

The introduction of the Integrated Electronic Case Management System (IECMS) is a good example of this. It is powerful testament to this shift. The platform allows lawyers and parties to upload annexures, which can include audio and video recordings, along with other related documents. The mere existence of this feature in the IECMS suggests that the legal system recognises and accepts the value of multimedia evidence. It would be unlikely for such an important function to be part of the platform if electronic evidence were not admissible or accepted. This practical acceptance by the legal system reflects a common-sense approach that aligns with global trends.

Conclusion

In conclusion, while Zimbabwe is still developing its full legal framework on electronic evidence, current laws and systems indicate a growing acceptance of audio and video materials in courtrooms. The path to admissibility rests on too many pillars, authenticating the evidence through sworn affidavit guided by the Civil Evidence Act, ensuring that it does not run foul of laws concerning consent and legal interception as outlined in the Cyber and Data Protection Act.

For everyday people, this means that recordings which support their case can be used, provided they are properly authenticated and consent requirements are met. The legal system’s gradual warming up to electronic evidence as indicated by both jurisprudence and systems like the IECMS, creates a reality where justice is more accessible.

Written by Rutendo Sarah Gukwa