Advocating for law reform for the benefit of the citizens, in a bid to ensure that their personal data, sensitive data and cyberspace interactions are protected is not an easy road. With write ups submitted to the Ministry of Justice, Legal and Parliamentary Affairs, and dialogues with different stakeholders and delegates at conferences, it is exciting to see the long awaited Cybersecurity and Data Protection Bill gazetted. The Bill was gazetted on the 15th of May 2020.

In spite of certain provisions that I hope will be addressed differently and a few changes concerning electronic evidence, I am looking forward to this legislation being enacted. It would make things easier for us litigants if the legislature would separate substantive law from procedural law, by amending the Criminal Procedure and Evidence Act [Chapter 9:07] as well. This is because the amendments made to the Criminal Law (Codification and Reform) Act [Chapter 9:23] mix up substantive law and procedural law. I am of the view that section 166B, admissibility of electronic evidence should have been an amendment made in the Criminal Procedure and Evidence Act under Part XIV, E. Admissibility of evidence as section 266B, with the title Admissibility of electronic evidence.

Just recently, a man was arrested for disclosing another person’s status for Coronavirus on a WhatsApp Group chat. He was charged with contravening section 39(2) as read with section 39(3) of Public Health Act [Chapter 15:17]. It is alleged that this accused used his cellphone to commit the said offence and his cellphone is being held as an exhibit. Currently, the Criminal Procedure and Evidence Act does not have provisions that assist the court in dealing with the admissibility of electronic evidence. Neither does it give the prosecutor, nor the accused and/or his legal representative guidelines on how to deal with electronic evidence in order to ensure its admissibility upon its production during criminal proceedings.

In the event that the legislature decides to enact the Cyber Security and Data Protection Bill without making any changes to it, the Criminal Procedure and Evidence Act shall remain unamended. This will imply that the admissibility of electronic evidence articulated in the Bill through section 166B, shall not apply to any other criminal proceedings falling outside the Criminal Law (Codification and Reform) Act. Section 166B expressly states that; electronic evidence shall be admissible in any criminal proceeding of an offence in terms of this Act, thereby confining this amendment to the Codification and excluding its applicability from matters falling outside the ambit of the Codification such as the offence above. If the legislature does not take hid and amend the Criminal Procedure and Evidence Act, it will mean that where the prosecution’s case hinges upon the production of a Whatsapp audio message in a domestic violence case, which falls under the Domestic Violence Act, section 166B of the Bill will not be applicable. The relevance of electronic evidence is not confined to cybercrime cases, for the past decade traditional cases have been evolving and perpetrators have been exploiting computer systems. Moreso, the advancement of e-commerce has contributed to this evolution of evidence that has been presenting itself during investigations and prosecution of traditional crimes such as fraud. Needless to say with the introduction of mobile money, there has also been an upsurge of “Ecocash fraud” across the country. Further to that, the more people have embraced the use of social media and the internet, the more traditional crimes like rape are also seeing electronic evidence permeating the criminal proceedings. Even in a rape matter, an audio can be used as evidence to prove or disprove a disputed fact. CCTV can contain evidence of perpetrators discussing gold dealings, which are in contravention of the Gold Trade Act.

Therefore, amending the Criminal Law (Codification and Reform) Act will not entirely help address the challenges that litigants have been facing during criminal proceedings because section 166B only focuses on one piece of legislation. Whereas, amending the Criminal Procedure and Evidence Act will alleviate the problem for all criminal matters. This will also give a clear separation of substantive law and procedural law, just as was done with the Civil Evidence Act [Chapter 8:01]. The legislature made provision for the admissibility of digital evidence (electronic evidence) for all civil matters in section 13 of the said Act. To conclude this argument, the preamble of the Criminal Procedure and Evidence Act clearly states that this Act is meant to consolidate and amend the law relating to the procedure and evidence in criminal cases, and to make provision for other matters incidental to such procedure and evidence. To show the distinction intended by the legislature to separate substantive law from procedural law, the preamble of the Codification expressly states that the Codification is an act meant to consolidate and amend the criminal law of Zimbabwe [and not procedure or evidence].