The Electronic Transactions Act, 2011 is a law enacted in 2011 to provide for the use, security, facilitation and regulation of electronic communications and transactions; to encourage the use of e-Governance services and to provide for related matters.
Key among its objectives are provision of a legal and regulatory framework to enable and facilitate electronic communication and transactions; removal and elimination of legal and operational barriers to electronic transactions; promotion of technology neutrality in applying legislation to electronic communications and transactions; provision of legal certainty and public confidence in the use of electronic communications and transactions; provision of e-Government services through electronic communications and transactions with the Government, public and statutory bodies; ensuring that electronic transactions in Uganda conform to the best practices by international standards; promote the development of electronic transactions that are responsive to the needs of users and consumers; and foster economic and social prosperity among others.[1]
E-Government services is defined by the Act to include ‘a public service provided by computer means by a public body in Uganda.’ The term e-government consists of the digital interactions between a citizen and their government (Jeong, 2007). It is the use of technology to enhance the access to and delivery of government services to the citizens, businesses and employees.[2]E-government is thus the use of ICTs, especially the Internet to deliver better governance through pursuit of citizens’ participation.
From its objectives, the Electronic Transactions Act is a cross cutting Act to regulate all aspects of life from the social sphere, to governance and economics.
However, section 3(1) of the Electronic Transactions Act exempts the application of the Act to documents specified in Schedule 2. The documents under schedule 2 include Will or Codicil; Trust created by a will or codicil; power of attorney; document that creates or transfers an interest in property and requires registration to be effective against third parties; and Negotiable instruments, including negotiable documents of title are not covered by the Act.
During the enactment process of the Electronic Transactions Bill, 2008 not much debate was engendered, as majority of the house and the committee of the house was averse to its content with the bill being referred to as ‘that very scientific Bill.’[3] The Speaker specifically referring to the Bill noted, “you see, this seems to be a technical thing; you saw that members could not debate because it was so technical.”[4]
At the Committee stage, it was observed that clause 3(1) of the Bill, which is now section 3(1) of the Act, limits the application of the Act and contradicts one of the objects of the Bill, which is to remove and eliminate the legal and operational barriers to electronic transactions. The Committee recommended that the exclusion of the Bill from applying to certain documents should be eliminated. That electronically signed wills should also be recognized provided there are witnesses to confirm their authenticity.[5]
When the Bill was finally passed into law amidst the biased light of its portrayal, the committee recommendations were disregarded. There was no debate to try and assuage the house to justify the retention of the clause in the bill limiting the application of the Bill/Act to the scheduled documents.
But why should the committee recommendations of 2010 be reconsidered to effectively amend section 3(1) of the Act? A few suggestions are proffered:
Times have changed
In the case of Commodity Export International Ltd and another versus MKM Trading Company Ltd & Another (Court of Appeal Civil Appeal No.84 of 2008)[6] their Lordships JJA Rubby Aweri Opio, Geoffrey Kiryabwire, Prof. L. Ekirikubinza –Tibatemwa of the Court of Appeal note that
“Uganda’s Evidence Act was passed in 1909, long before computers were invented and the issue of electronic evidence could not have been contemplated. The Civil Procedure Law and Rules in Uganda also do not specifically provide for e- procedures. Since that time, computers and electronic information have come to be an essential part of business and daily life. The Court takes judicial notice of this development. It is important that Uganda moves forward into the digital age in a way that makes it possible to resolve legal disputes effectively.” (Emphasis added)
I would hasten to add, that as electronic information has become an essential part of business and daily life, it is time Uganda moved forward into the digital age in a way to recognize wills, codicils, Trusts created by a will or codicil; powers of attorney; documents that create or transfer an interest in property and requires registration to be effective against third parties; and Negotiable instruments, including negotiable documents of title and delimit the bar stopping the application of the Electronic Transactions Act to them.
In his book ‘Pregnant Poems’ Eron Kiiza points out in a poem that “Technology is a new battlefield.” Beyond being the battlefield for modern day revolutionary fights, the cyberspace is the playing field for today’s social, and economic lives of individuals and nations. It has become the field where all and sundry make life’s meaningful connections and transact the businesses that matter.
In recognition of that fact and in a bid to promote e-government, the government of Uganda moved to digitize the land information system to reduce opportunities for multiple land titles and reduce the time required to check, update and transfer land titles. In a report about the digitization of Uganda’s land Information Systems, benefits of the digitization of land information is posted to include gains of identification and elimination of problems of double plotting and referencing of titles, creation of new digital base maps which include data on forests and forest reserves, road reserves, water bodies and enhanced quality assurance and quality control capacity of surveys and mapping.[7]
The digitization of the land information systems gives credibility to keeping titles and land transfer documents in digital formats accessible for use by both private and public entities. Limiting the application of the Electronic Transactions Act is counter-productive to the objective the Act intends to achieve. In fact, s.3 (1) is redundant provision already overtaken by events and developments as what it seeks to protect has already occurred.
New generation laws recognize electronic documents
Other laws have advanced to recognize electronic documents as valid and equal to physical documents. The older generation of Laws like the Evidence Act passed in 1909 and the Civil Procedure Act and the Civil Procedure Rules did not envisage the application of Electronic Evidence per se. However, other laws passed in the recent past give cognizance to electronic documents indiscriminately. Section 10(2) of the Contracts Act amended and passed in 2010 provides that a contract may be oral or written or partly oral and partly written or may be implied from the conduct of the parties. A contract is in writing where it is in the form of a data message; accessible in a manner usable for subsequent reference; and otherwise in words.[8](Emphasis added) Much as the Contracts Act was enacted a year earlier and acknowledged written contracts to be in form of data message, it did not define data message. Data Message is defined by the Electronic Transactions Act to mean data generated, sent, received or stored by computer means and includes voice, where the voice is used in an automated transaction; and a stored record.[9]
Besides these, there are various other Acts like the Electronic Signatures Act, 2011; Computer Misuse Act, 2011; the NITA-Uganda Act; Uganda Communications Commission Act which give credence to the fact that documents can now be electronic and be recognized.
Under s.5 (1) of the Electronic Transactions Act, information shall not be denied legal effect, validity or enforcement solely on the ground that it is wholly or partly in form of a data message. It further provides that where an act; a document; or information is required to be in written, produced, recorded or retained, it may be written, produced, recorded or retained in electronic form. The requirement for a document or information to be in writing is fulfilled if the document or information is in a form of a data message; and is accessible in a manner, which is usable for subsequent reference.[10] This provision equalizes the physical or electronic documents and treats them the same. S.3 (1) of the Electronic Transactions Act thus contradicts this provision by excluding the application of the Act to the scheduled documents.
The exempted documents are key for the economic development of the country
The exempted documents are an essential part of business and daily life. They are very critical in relation to estates or property ownership, trusts and their management, transfer of titles and negotiable instruments and have a bearing on the economic development of the country. With the documents, access to credit from credit institutions would be enhanced and holders thereof can engage in productive activities like agriculture, trade, and real estate industry among others that leads to the economic development of country.
Cross-country comparison
Within the EAC and most of Common Wealth nations like Kenya, Ghana, Singapore, New Zealand and even Rwanda, the Electronic Transactions laws have similar provisions with Uganda. It would thus appear we simply copied what others already had much as it is appreciated the law is largely a replica of the UNCITRAL Model Law on Electronic Commerce.
The Electronic Commerce (EC Directive) Regulations 2002 of Britain provides in section 3(1) that
“Nothing in these Regulations shall apply in respect of the field of taxation; questions relating to information society services covered by the Data Protection Directives and the Telecommunications Data Protection Directive and Directive 2002/58/EC of the European Parliament and of the Council of 12th July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications); questions relating to agreements or practices governed by cartel law; and the activities of information society services such as a public notary or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority, the representation of a client and defense of his interests before the courts and betting, gaming or lotteries which involve wagering a stake with monetary value.”
The provision from the British law seems to depart from the general provisions embraced by other countries. This suggests that a departure is possible and required not because of Britain per se, but that in practice we have largely and factually departed.
The authenticity of documents remains key
To prove the authenticity of an electronic document or data, the best evidence rule is employed. Section 63 of the Evidence Act provides that documents must be proved by primary evidence except in certain situations. Primary evidence is the document itself produced for the inspection of the court.[11] Documents are defined as “any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purposes of recording that matter’ [12]
Their Lordships in the case of Commodity Export International Ltd[13] (cited above) opine that the provisions of the Evidence Act follow from the Common Law rule of evidence (the best evidence rule) that no evidence is admissible unless it is ‘the best that the nature of the case will allow’.
Borrowing from the Common Law position in England stated in the case of Kajala V Nobel[14]where Ackner L.J stated that “The old rule that a party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded has gone by the board long ago. The only remaining instance of it is that if the original document is available in one’s hands, one must produce it…” and borrowing from section 5 of the United Kingdom’s Civil Evidence Act, 1968 their lordships concluded that documents produced by a computer and its accessories like diskettes, as a rule of thumb, are admissible as evidence of any fact stated therein.
In the case of Hesse Brian v Senyonga Patrick and 12 Others[15] His Lordship Justice Christopher Madrama held regarding admissibility of a power of attorney that
“…as a private document the power of attorney may be presented as a private document executed outside Uganda and outside the Commonwealth and the Republic of Ireland, required to be authenticated by the signature and seal of office of a foreign service officer of Uganda or of the British consul or diplomatic agent in such foreign place or by any secretary of state, under Secretary of State, Governor, colonial secretary, or any other person in that foreign place which shall be shown by the certificate of the consul or diplomatic agent of that foreign place in or for Uganda to be duly authorized under the law of that foreign place to authenticate the document.”
The learned Judge opined that the power of attorney having been authenticated by a Notary Public …is presumed to have been so executed and authenticated and is acceptable under Order 3 of the Civil Procedure Rules of Uganda.
In the same case, the learned Judge found that there was no attempt by the witnesses to authenticate various e-mails in issue as the law required. He opined that the Electronic Transactions Act, 2011 under s.7 provides that the integrity of the information from time to time when it was generated in its final form as a data message or otherwise can be presented if it passes in terms of subsection 2. Subsection 2 requires that the information is complete and has not been altered.
The learned Judge confirmed the law that a person seeking to introduce a data message or electronic record in legal proceedings has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.[16]
The Judge further buttressed the best evidence rule as applicable in respect of electronic record and that it is fulfilled upon proof of the authenticity of the electronic record system in or by which the data was recorded or stored. He further held that ‘the Court has to take into account several matters relating to the reliability of the manner in which the data message was generated, stored or communicated. These are the reliability of the manner in which the authenticity of the data message was maintained. It takes into account the manner in which the originator of the data message or electronic record was identified.’
Certification of Electronic Signatures
The National Information Technology Authority of Uganda (NITA-U) must role out an infrastructure and legal framework for licensing and certifying electronic signatures and documents to ensure that absolute benefits are reaped from rolling out e-government and promoting e-transactions in Uganda.
This may involve adoption of new technologies that are now available and can be developed to suit the unique situations of Uganda.
Conclusion
The mischief the legislators sought to cure is fraud owing to the rate of its prevalence in Uganda regarding property ownership, trusts and estate management, illegal transfers, sales and acquisition of land in Uganda. The exemption of these crucial documents is counterproductive and contrary to the key objectives of the Act that seeks to promote E-Governance, electronic transactions and communication and ultimately economic development of Uganda.
The exclusion of the application of the Act to these documents speaks to the level of Uganda’s technological development and perhaps is just a confirmation of the long held
[1] S.4 of the Electronic Transactions Act, 2011
[2] Deloitte Research –Public Sector Institute At the Dawn of e-Government: The Citizen as Customer 2000.
[3] Parliamentary Debates (Hansard), Fifth Session –First Meeting, Thursday, 28 October 2010, p.12,601
[4] Ibid.
[5] Parliamentary Debates (Hansard), Fifth Session –First Meeting, Wednesday, 22 September 2010, p.12,568
[6] Commodity Export International Ltd & Anor Vs Mkm Trading Company Ltd & Anor (CIVIL APPEAL NO 84 OF 2008) [2015] UGCA 81 (16 October 2015); http://www.ulii.org/node/25432 extracted on July 5, 16
[7] Jacobs Gasant, Orlova Nadege, Development and Implementation of Land Information Systems: Building an Effective Partnership to Reform Uganda’s Land Administration and Management System,. Retrieved on June 27, 16 from https://www.fig.net/resources/proceedings/fig_proceedings/fig2014/papers/ts01c/TS01C_jacobs_orlova_7320_abs.pdf
[8] S.10 (3), Contracts Act, 2010
[9] S.2, Electronic Transactions Act, 2011
[10] S. 5(3) and (4), Electronic Transactions Act, 2011
[11] Section 61, Evidence Act, Cap 6 Laws of Uganda
[12] S.62, ibid
[13] Supra, note 6
[14] (1982) 75 Cr. App R 149 at 152
[15] Civil Suit No. 612/2014, unreported, http://www.ulii.org/ug/judgment/commercial-court/2015/90/commercial-court-2015-90.docx. Extracted on July 5, 16
[16] S.8 (2), Electronic Transactions Act, 2011
