Cape Town - Sitting in the public gallery of the National Assembly on August 22, I watched in disbelief as the long-awaited DNA law – the Criminal Law (Forensic Procedures) Amendment Bill – was almost not voted on because of a technical glitch in the electronic voting system.
Having fought so long to see the passing of this bill, it felt surreal to consider the prospect of the legislation being stalled yet again.
How ironic that the final voting on the bill had to be done by a head count. It seemed a fitting drama to end the nine-year struggle we have fought to see this critical DNA bill being passed into law.
It represents a welcome stand by the government to regulate this important area of the law, where to date there has been a legal vacuum.
The DNA bill establishes a national forensic DNA database for the purposes of detecting and investigating crime, exonerating wrongly convicted people and identifying missing persons and unidentified human remains.
The growth of the database will be directly linked to the implementation of this law which will allow for the inclusion of profiles, as well as allowing for comparative searching between the different types of profiles.
This is important because the greater the number of profiles on the database, the greater the chance of finding a match between the crime scene profile and a known profile on the database. If we increase the number of profiles, we will increase the chances of finding a match and linking it to a suspect or, at the very least, deriving criminal intelligence.
The bill ensures that the database is populated for this purpose as it provides for the compulsory taking of DNA samples from arrestees and convicted offenders.
The rationale behind obtaining DNA profiles from convicted criminals is that research has shown that this acts as a deterrent and addresses the issues of accountability, both of which pose a huge issue in respect of repeat crimes committed by the same person.
The database could be used to link the offender with previous crime scenes from which DNA profiles have been taken.
There is a high possibility of convicted offenders repeating crimes after their release or while on parole.
By retaining the DNA profile, any subsequent crime may be linked immediately to that person, whose full details will be on the database.
The rate of recidivism is extremely high, which underscores why this convicted offender index will be imposed retrospectively.
This will ensure that any convicted offender in prison or on parole has a DNA sample taken and analysed before release.
So whose profiles will be entered in to the database?
The crime scene index will contain forensic DNA profiles of all crime scene samples (biological evidence collected from crime scenes). The arrestee index will contain forensic DNA profiles of all persons arrested for or on reasonable suspicion of having committed a Schedule 8 offence.
The convicted offender index will contain forensic DNA profiles of persons convicted of any Schedule 8 offence.
The investigative index will contain forensic DNA profiles taken from persons with their informed consent or by warrant, if necessary, for purposes of investigating an offence. The elimination index will contain the forensic DNA profiles of people who attend or process crime scenes as a part of their official duties, who handle, process or examine crime scene DNA evidence, who calibrate or service equipment, enter examination areas of laboratories.
This index will also include the DNA profiles of all new recruits to the SAPS and of people involved in the manufacturing of consumables, equipment, utensils or reagents. The missing persons and unidentified human remains index will include forensic DNA profiles from samples derived from unidentified human remains.
The DNA bill adequately puts proper safeguards in place to ensure the integrity of the database, with severe penalties for any misuse of the information stored on it.
The successful implementation of the DNA legislation is going to depend largely on the continuous oversight and guidance of the board that is to be established in terms of the provisions of the DNA bill.
The board will consist of 10 members, five of whom will be members of the public with knowledge and experience in forensic science, human rights law or ethics relating to forensic science.
They are to be nominated by the public and appointed by the minister of police, while the board is to be chaired by a retired judge or senior advocate with experience in human rights.
A representative of the South African Human Rights Council is also to be appointed to the board. Only three of the board members may be selected from the state.
In order for the database to be effective, the quality and quantity of DNA samples delivered to the Forensic Science Laboratories for analysis must be optimised.
The bill highlights the fact that training in the preservation of forensic evidence at a crime scene needs to be addressed.
Rigorous training has to be implemented among key sectors of SAPS. Community police forums and police officers, emergency services, private security services as well as the public need to be able to assist in protecting and containing, as opposed to contaminating, a crime scene.
There are two more steps before we see this bill officially enacted: it needs to pass through the National Council of Provinces; after this, it needs to be signed into law by the president. At that point, the real work begins as we all need to help ensure that its implementation is successful and that it translates into crime resolution.
DNA profiling in a criminal context will help reduce crime in a smart, advanced and constructive manner.