FINAL DRAFT – MAY 7, 2014 PROPOSED FINAL DRAFT: TANZANIA EVIDENCE ACT 2014 FROM THE CHIEF CONSULTANT AND DRAFTING COMMITTEE MAY 7, 2014 The Chief Consultant and the Drafting Committee (the “DC”) for the Tanzanian Evidence Law Project recommend that the present Tanzania Evidence Act of 1967 (the “TEA”) be repealed and replaced with a new and modernised law of evidence. This recommendation comes after more than three years of study of the TEA, its use in Tanzanian case law, various research trips to Tanzania, and an international comparison of evidence law. In addition, the DC has examined the history and political economy of the United Republic, with a special emphasis on the colonial history of the country and its significance for the legal system of the United Republic. What follows is a report based on these efforts and a proposed set of rules to replace the TEA. If adopted, the DC’s Proposed Tanzanian Evidence Act (hereinafter “Proposed Act”) will modernise and streamline the archaic and conceptually problematic TEA. The DC considered whether incremental change was preferable to wholesale replacement, taking into account the consequences of changing a complex set of laws that have been in effect for a considerable time.1 Ultimately, the DC rejected incremental change. For reasons that will become clear throughout the remainder of this report, preservation of the present TEA serves little to no social interest. The only cognizable benefit that the TEA provides is a competitive advantage to those few individuals who have already mastered its unnecessary and peculiar complexities. Any value garnered by these few individuals is offset by the widespread inefficiencies and injustice that the continued use of the TEA will perpetuate throughout Tanzanian society. However, the DC is acutely aware that the people and Government of the United Republic have more expertise in your society and legal system than we do, and that we cannot strike the difficult balance between the potential costs and benefits that law reform entails. Regardless of your decision to accept or reject the proposed rules, we ultimately hope that this report will begin the important process of evidentiary law reform and we look forward to a continued collaborative effort. The TEA is a by-product of colonial imperialism and was taken nearly word-for-word from the Indian Evidence Act of 1872 (the “IEA”). In many respects, the TEA reflects the status of the common law of evidence that governed during the latter part of the nineteenth century. Indeed, its drafter, James Fitzjames Stephen, in his introduction to the IEA noted that “[t]he Indian Evidence Act is little more than an attempt to reduce the English law of evidence to the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India.”2 Thus, it treats some problems that no longer exist and ignores many that do. In the 140 years since the IEA was written, there have been vast strides in the fields of evidence law and trial procedure. The TEA reflects none of these developments. Furthermore, the IEA embodies the idiosyncratic ideas about the law of evidence and how it should be structured, that were held 1 Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U CHI. L. REV. 263–291 (1982) (discussing the costs of radical law reform and suggesting there are times when those costs can be justified); Richard A. Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477–1546 (1999) (discussing the economic implications of evidence law on the legal system and society as a whole). 2 JAMES FITZJAMES STEPHEN, THE PRINCIPLES OF JUDICIAL EVIDENCE: BEING AN INTRODUCTION TO THE INDIAN EVIDENCE ACT 2 (1872). 1 FINAL DRAFT – MAY 7, 2014 by James Fitzjames Stephen. Although Fitzjames Stephen’s ideas were quickly rejected by virtually the entire Anglo-American world,3 the TEA still incorporated these peculiarities. Indeed, Even Indian legal scholars have complained that the IEA’s language and concepts are convoluted at best and counterproductive at worst.4 While we recognise that the TEA may have at one time served some regulatory purpose, it is no longer compatible with technological innovation and the cultural context of the United Republic. Consisting of 188 separate sections, with innumerable subsections that span approximately 53 pages of single-spaced small print, the TEA is long, complicated, archaic, and occasionally inconsistent. The TEA’s complexity has become a barrier against accurate adjudication and innovative judicial reform. The TEA’s mere existence exacerbates wealth differentials within the country, giving an unfair advantage to those with greater financial resources to secure the most sophisticated counsel. For all the above reasons and more, it is particularly appropriate for the Government of the United Republic to focus on the law of evidence at this time. Although somewhat obscure to the general public, the law of evidence is among the most important fields of law. First, as we elaborate below, accurate fact-finding is as fundamental to the construction of a just society as is the articulation of rights and obligations. Indeed, accuracy in fact-finding may be more fundamental than rights and obligations, for without accurate fact-finding, rights and obligations are meaningless. Every contested claim of a right or an obligation is entirely dependent upon the finding of facts. In order to assert and defend a right in court, one must first establish the facts that demonstrate that a right has been violated. Efficiently and effectively establishing the facts at trial is, in turn, critically dependent upon the law of evidence. A well-considered law of evidence can facilitate the fact-finding process, and an ill-considered one can obstruct it. Second, the law of evidence, in conjunction with laws of procedure, structures the public’s contact with the legal system in the most dramatic way. Anyone unable to resolve disputes without legal action will be immersed in a legal world framed by the law of evidence. The law of evidence is created by the state, which means that this immersion in the legal world will construct and colour the public’s view, not just of an important aspect of the machinery of justice, but of the Government of the United Republic itself. Evidence law that facilitates smooth and consistent operation of trials will strengthen the public’s respect not just for the judiciary but the Government as a whole, as well as vindicate public aspirations for the rule of law. Third, the efficiency and efficacy of the law of evidence will affect—in some instances dramatically—the very value of the right or obligation being contested. If the law 3 These idiosyncrasies are discussed in the introduction to the next section, Critique of the Tanzania Evidence Act. English legal scholar and Judge James Fitzjames Stephen drafted the TEA’s precursor, the Indian Evidence Act, in the early 1870s. JAMES FITZJAMES STEPHEN, A DIGEST ON THE LAW OF EVIDENCE iii (2d ed. 1879). Stephen’s attempt to put forth a nearly identical act in his own country in 1873 was rejected. Id. at 3–4. Critics noted the idiosyncrasies of Stephen’s views, and that definitions put forth for crucial words, such as “fact,” were ambiguous and contrary to popular understanding. See An English Evidence Code II, 20 SOL. J. 869, 869 (Sept. 9, 1876). There were additional concerns about the scope of evidence that the code would admit. See, e.g., 3 CHARLES FREDERIC CHAMBERLAYNE, A TREATISE ON THE LAW OF EVIDENCE 2213 § 1718 (1912); JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 266 (1898). 4 For example, one Indian legal expert remarked, “The Act does not appear to make any distinction between logical relevancy and legal relevancy,” which he identified as a problem because the Indian Evidence Act’s definitions of relevance related to logical relevance even though the concept of admissibility is founded on law and not logic. S.C. SARKAR, LAW OF EVIDENCE 22–23, 39 (7th ed. 1946). 2 FINAL DRAFT – MAY 7, 2014 of evidence imposes large costs on the discovery or presentation of evidence, certain rights may be impossible to vindicate. For example, if the cost of litigation is ten million shillings (TSH), but the value of the right is four million TSH, it is fiscally imprudent to vindicate the right through the court system, which will likely raise the spectre of vigilante justice. Fourth, the law of evidence and its associated costs act as both barriers to the bringing of lawsuits and, more fundamentally, as determiners of how disputes within a society will be resolved. On one side of the coin is the threat that a right cannot be vindicated; on the other is the risk that the law will encourage too much litigation and too little private negotiation. In reforming the law of evidence, attention should be given to the actual operation of the legal machinery of trials and, more generally, to social dispute resolution. How is the present law functioning? Whom, if anyone, does it favour or disadvantage? Does it encourage the waste of scarce judicial resources? Does it prevent the bringing of lawsuits in contexts where official clarification of rights would be valuable? Are there discrepancies in modes of dispute resolution throughout the country that are not justifiable for historical or social reasons, or conversely, should there be more flexibility in the law than it presently possesses? These kinds of questions should be approached within a well-defined conceptual framework. Accordingly, below we articulate the appropriate guiding principles of evidence law reform, and then we turn to a discussion of certain policies that should inform this effort.