Thanl you Florence and all for pointing out what happens in practice. I am concerned when a prosecuting agency proposes legal changes because the proposals come from the extreme end of the spectrum. Remember ODPP's Cybercrime Bill? Anyway, if anyone has a link to the report, it would help us have more informed discussions. On 22 May 2017 7:46 a.m., "Victor Kapiyo via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
As has been pointed out, the ODPP, the police and other relevant institutions have all the necessary legal instruments to make their cases. It's important to also point out that electronic evidence has been admissible in Kenya since 2014 (s.78A Evidence Act). The challenge these institutions have isn't necessarily the law, but the capacity to collect, preserve and adduce such evidence before courts.
*Victor Kapiyo* Advocate of the High Court of Kenya & Commissioner for Oaths *Suite No. 8, Centro House, Westlands, Nairobi | **Web: www.lawmark.co.ke <http://www.lawmark.co.ke> * ====================================================
*“Your attitude, not your aptitude, will determine your altitude” Zig Ziglar*
On 22 May 2017 at 14:36, florence mwangangi via kictanet < kictanet@lists.kictanet.or.ke> wrote:
Evidence is illegally obtained if it has been procured contrary to any law or principles of equity. In Kenya as is the case with other common law jurisdictions, illegally obtained evidence is not admissible. This then takes us to the question whether evidence obtained via covert surveillance - telephone taps/cctv clips - would be admissible. Under Article 31 of the Constitution the right of privacy of the individual in communication (among others) is guaranteed. However that right can be limited if the conditions in Art 26 are met. Indeed the National Intelligence Service Act (NISA) (amended under the Security Laws (Amendment) Act of 2014) and to some extent the Proceeds of Crime and Anti-Money Laundering Act and the Mutual Legal Assistance Act, among other statutes, have provided for covert surveillance. The NISA in particular refers to Art 26 and specifically states in the relevant provions that the right to privacy under Art 31 is limited by the particular provisions. It would therefore be upto the Court to examine and determine whether or not the evidence obtained through the covert surveillance has been obtained not only in strict compliance with the enabling statute but also whether the provision in that statute is constitutional in terms of the provisions of Articles 31 & 26 among other relevant provisions of the Constitution that uphold human rights and dignity.
On 22 May 2017 08:45, "June Tessy via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
This is very interesting, especially because our Kenyan law is mandatorily inclusive meaning it doesn't really matter how the evidence is collected or found generally.
What would be of importance is whether the evidence is relevant and admissible per the law.
Let's see how this plays out.
On 22 May 2017 5:59 a.m., <kictanet-request@lists.kictanet.or.ke> wrote:
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Today's Topics:
1. Tobiko seeks use of phone taps in court (Grace Githaiga) 2. Re: Tobiko seeks use of phone taps in court (Ali Hussein) 3. Re: Feedback on the 2016 ICT POLICY - REMINDER No. 8 (Ali Hussein)
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Message: 1 Date: Mon, 22 May 2017 00:41:09 +0300 From: Grace Githaiga <ggithaiga@kictanet.or.ke> To: "kictanet@lists.kictanet.or.ke" <kictanet@lists.kictanet.or.ke> Subject: [kictanet] Tobiko seeks use of phone taps in court Message-ID: <5eb1d690c739fc918d2fe2a54c249d15@webmail.kictanet.or.ke> Content-Type: text/plain; charset="utf-8"
The Director of Public Prosecutions (DPP) Keriako Tobiko wants evidence collected using phone tapping and covert CCTV footage used to try corruption and economic crimes in proposals that could raise debate on suspects? right to privacy.
The DPP has asked Parliament, in a report tabled in the House, to legalise the use of modern technology in Kenyan courts, including receiving evidence through video conferencing, high-tech surveillance techniques, and wiretaps.
http://www.businessdailyafrica.com/news/Tobiko-seeks-use-of- phone-taps-in-court/539546-3935960-msbgm6/index.html [1]
Best regards
Githaiga, Grace
Co-Convenor Kenya ICT Action Network (KICTANet) Twitter:@ggithaiga Tel: 254722701495 Skype: gracegithaiga Alternate email: ggithaiga@hotmail.com Linkedin: https://www.linkedin.com/in/gracegithaiga www.kictanet.or.ke
"Change only happens when ordinary people get involved, get engaged and come together to demand it. I am asking you to believe. Not in my ability to bring about change ? but in yours"---Barrack Obama.
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