DIGITAL EVIDENCE AND THE FUTURE OF PROOF: REASSESSING THE CONCEPT OF EVIDENCE UNDER GHANA'S EVIDENCE ACT

Abstract

This article examines the conceptual adequacy of Ghana’s law of evidence in an era in which proof has increasingly shifted from tangible, physically perceptible forms to intangible and electronically mediated data. It argues that the legal understanding of “evidence” embedded in Ghana’s Evidence Act, 1975 (NRCD 323) was developed against an implicit ontology of tangibility that presupposes evidence as materially stable, sensory, and largely human-generated. Within that classical framework, testimony, documents, and physical objects historically functioned as the principal vehicles through which courts ascertain truth. Yet digital technologies have profoundly altered the form, nature, and evidentiary significance of information. Contemporary proof now often exists as electronic records, metadata, system logs, geolocation histories, social media communications, audio-visual files, and algorithmically generated traces that are neither inherently visible nor physically fixed. Using doctrinal, analytical, and comparative methodologies, the article examines the Evidence Act, relevant Ghanaian judicial decisions, and statutory developments, particularly the Electronic Transactions Act, 2008 (Act 772). It argues that although the existing evidential framework retains latent flexibility, it lacks a coherent conceptual structure for addressing the epistemic and procedural complexities of digital evidence. The article advances a reconceptualisation of “evidence” grounded in functional reliability, technological neutrality, and procedural fairness, and proposes doctrinal, legislative, and institutional reforms necessary to align Ghana’s law of evidence with the realities of the digital world.