Proposed Final Draft: Tanzania Evidence Act 2014

In 2011, the Government of the United Republic of Tanzania, under the auspices of the Prevention and Combating of Corruption Bureau and its Director General Dr. Edward Hoseah, initiated a project to review and reform the law of evidence of Tanzania, which is embodied in the Tanzania Evidence Act of 1967 (“TEA”). Approximately 90% of the TEA comes from the 1872 Indian Evidence Act and has remained unaltered for over fifty years. To facilitate this project, the Government created a committee of stakeholders in Tanzania, the Working Group, and retained Prof. Ronald J. Allen as its Chief Consultant, who in turn created a Drafting Committee formed by students from the Northwestern University School of Law to assist in the research and eventually the drafting of a new code of evidence for Tanzania. After three years of work, the Drafting Committee completed the Proposed Final Draft: Tanzania Evidence Act 2014 (“Proposed Code”). In April, 2014, the draft of the Proposed Code was presented to the Court of Appeal of Tanzania, which is the country’s highest court. The Court of Appeal forwarded it to the Parliament of the United Republic with its recommendation that the draft be considered for adoption. Parliament then forwarded it to the Law Reform Commission of Tanzania, which now has it under advisement.This article is the Proposed Code with Commentary. The commentary critiques the TEA and its conceptual foundations and then contrasts them with eight principles to guide the reform of the law of evidence of Tanzania that emerged from this project. The eight principles are: 1. Evidence law should facilitate the accurate, efficient, and fair finding of facts pertinent to legal disputes. Generally, all relevant evidence (evidence that would influence a reasonable person’s inferential process) should be admissible. Otherwise relevant evidence should be excluded only if there is a very good reason for doing so that outweighs, in the particular context, the value of accurate adjudication — or contributes to the probability of it. 2. The law of evidence does not determine the “facts” that may be found; the substantive law does. The law of evidence facilitates reliable investigation into those facts. 3. The evidentiary process should respect natural reasoning processes. It should not impose strained or artificial limits on testimony or the presentation of real evidence absent a compelling justification. 4. Evidence law exists to facilitate the rational resolutions of disputes and not as an end in itself, and should be so constructed and interpreted. Meticulous compliance with technical modes of proceeding that do not serve the ultimate ends of accurate, efficient, and fair fact-finding should not be demanded, whether emanating from evidence or procedural codes. Trials should be conducted as a rational search for truth, rather than games that require formalistic compliance with complex rules. Reversals on appeal should be limited to cases in which a significant violation of a right likely affected the outcome of the case. 5. Decisions at trial are always decisions under uncertainty, with mistakes being unavoidable in the long run. Evidence law should facilitate equal treatment of parties and the reduction of errors made at civil trials. Civil parties typically stand equal before the law and should not suffer discrimination due to their formal status (plaintiff, defendant, applicant, respondent, intervener, etc.). Deviations from that principle should be rare and justified (such as civil cases involving allegations of fraud). In criminal cases, the Government must prove each element of any charged offence beyond a reasonable doubt; affirmative defences with differing burdens of persuasion are allowable in limited circumstances. 6. Evidence law should not discriminate among groups in society. For example, undue advantage should not be given to repeat participants in litigation. Its language should thus be as spare, nontechnical, and immediately comprehensible as the subject permits. Evidence law should always be administered to advance, rather than obstruct, the underlying purposes of a legal system. 7. To the extent possible, without significantly compromising any of the guidelines noted above, the law of evidence should respect the norms of the communities to which it applies. 8. There may be occasion to provide exceptions to any of the guiding principles noted above, but those exceptions should be rare, limited, clear, and justified. Examples may include privileges, as well as the structuring of incentives for other socially valuable purposes. The commentary also focuses on the drafting choices that were made, and highlights further issues for consideration.