Admissibility of Electronic Evidence under Section 84 of Evidence Act 2011: Examining the unresolved Authentication Problem1 (original) (raw)

Electronic evidence is now admissible in Nigeria vide the Evidence Act 2011. Yet unresolved is the problem of authenticity of the electronic documentary evidence. Section 84 sets out the requirements for admissibility of certain types of computer-produced evidence. As part of the conditions of admissibility, the Act lays down minimum authentication requirements. However, the Act arguably only applies to evidence that would otherwise be excluded as hearsay and not to direct or real evidence. In such a case, the law contains no clear statements as to how that evidence should be authenticated. On hermeneutic and comparative approaches to English and Nigerian positions, the paper finds and argues that admissibility and authentication are separate issues, and that the failure to treat them independently gives rise to needless confusion. This failure also directs attention away from the urgent need for clear rules governing the authentication of computer evidence. It is therefore observed that the relevant provisions of the Act are due for review just on arrival. Without this review, a substantial obstacle to digital communication, data storage, e-commerce, diligent prosecution at the event of cybercriminality, for instance, shall have been inaugurated.