IN THE WRONG HANDS: A DNA DATABASE IN SOUTH AFRICA
By Poonitha Naidoo

A proposal to empower members of the South African Police Services (SAPS) to collect human tissue samples from living persons and maintain their DNA profiles in a national database is presently being considered in South Africa’s Parliament. The SAPS claim that a highly-populated database under their control is urgently required to curb violent crime. However, human rights activists argue that such a law is contrary to South Africa’s newly-founded constitutional democracy. In his inaugural address in 1994, Nelson Mandela affirmed that all South Africans:

…will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity. …Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.

Members of the South African Legislature are under obligation to ensure that written laws do not have the potential to undermine the values of human dignity, equality and freedom.

The police role

In order to appreciate the uncontrolled pervasiveness of crime in South Africa, one must examine its roots which stem from Apartheid. In 1996, the Truth and Reconciliation Commission (TRC) was established to investigate human rights violations during Apartheid and subsequently reported that the security forces were actively engaged in abducting, killing and secretly disposing of the bodies of a number of black people. The police were also involved in destabilizing communities by supplying certain groups with drugs, arms and ammunition whilst instigating black on black violence between factions. This violent era created a situation where many black people, mostly breadwinners, disappeared. The bodies exhumed by the TRC were previously buried as unclaimed paupers without proper forensic examinations being conducted on them. It was also found that those responsible for the management and burial of unidentified paupers, namely forensic mortuary personnel and funeral undertakers, had erred. In the case of Ntombikayise Priscilla Khubeka, whose original post-mortem examination report had the cause of her death recorded as inconclusive, the exhumation and re-examination of her remains showed that she was executed.

Wouter Basson’s predecessor, Lothar Neethling, founded the South African Police forensics unit, which was one facility that was used for research activity involving biological and chemical weapons for use against black people. The projects, which included genetic engineering, involved many scientists and academic research facilities. Although significant, further discussion of the biological and chemical programme does not fall within the scope of this article. What is significant is that Basson and his predecessors worked in close association with the police. All forensic mortuary facilities were managed by the SAPS. A key objective of research conducted was to investigate toxins that caused death without being detected during a post-mortem examination. It therefore suited the Apartheid government to maintain poorly resourced forensic facilities, especially in areas in which they operated. In 2006, all forensic pathology mortuaries were transferred from the SAPS to the Department of Health; however, the forensic science laboratory processing DNA is still managed by the SAPS.

Although more than a decade has passed since South Africa rid itself of Apartheid’s unjust laws, police brutality, torture and corruption is prevalent and overwhelming. In 2010, 5 billion rand (over $600 million US) was requested by the South African Police Services for a contingency liability fund to settle claims against the SAPS. Annual reports released by the Independent Complaints Directorate, who monitor complaints against the SAPS, include a high incidence of murder, rape, assault and deaths in custody. Additionally, over 11,900 firearms in police custody disappeared over a five year period despite stringent protocol relating to firearm safekeeping. This confirms the high level of corruption and lack of accountability within the SAPS. To broaden their legislative scope to include medical practice without an advanced legal and ethical restraint in place is a dangerous conception in the face of uncontrolled police corruption, fraud, and torture. Even worse is the proposition that fundamental rights equated to human dignity, only enjoyed by the majority of South Africans since its democracy, can be limited. This indicates a lack of comprehension of privacy rights by the police, who violated these during Apartheid to create the firm foundation for uncontrolled crime. It is the duty of the police to protect every person from harm before the injury occurs.

DNA processing and profiling

A DNA profile is established by analyzing human tissue and is regarded as a credible examination for determining biological relationships. In South Africa, DNA analysis falls within the scope of licensed medical professionals who practice within an established ethical and legal framework of the Health Professions Council of South Africa. The obligation to respect individual autonomy, which embraces informed consent and privacy, is obligatory. Medical professionals working in this field are highly skilled graduates who must be licensed to practice. Forensic DNA analysis involves the processing of biological samples from living or deceased persons to identify a perpetrator whose DNA will be different than that of the victim. Legislation provides for certain health practitioners to collect human tissue and other relevant samples from the body of a living person. The Inquest Act empowers medical practitioners to remove tissue samples from the deceased for further examination. These are handed to police officers who transport the packaged specimen to a central forensic science laboratory for analysis. However, far too many samples are lost, contaminated or degraded with no result being available at a court hearing. Forensic practitioners are often frustrated that post-mortem reports cannot be concluded without laboratory test results.

If the forensic laboratory is under the control of medical personnel, victims and their families will have recourse to advance negligence and professional misconduct claims against those responsible for the loss or contamination of specimens that had the potential to identify a perpetrator. Presently, victims are not afforded this protection as ethical and legal rules relating to DNA analysis do not extend to the police, who escape scrutiny.

DNA profiling has its limitations in that biological material must be left behind by the perpetrator at a crime scene. This indicates that samples collected will include DNA of innocent persons who left traces of their genetic material prior to the crime, rendering them suspects. An innocent person’s DNA can be planted at a crime scene, and the recent manufacture of ‘fake’ DNA by Israeli scientists is of concern.

The continued enormous funding and resources required for a national DNA database is impractical considering the country’s state of forensic mortuaries and the shortage of police personnel. Research shows that crime is high in areas that have poor forensic and police services. Apart from this, South Africa is still struggling to compile a digital database of identification numbers, fingerprints and sexual offenders in addition to managing corruption that affects these systems. An important consideration is that not all crimes, such as commercial crimes, require DNA collection and analysis. A forensic medical practitioner possesses the skill to decide on tests required for each case presented. Cost-effective prioritization of tests required is part and parcel of an ethical approach as opposed to wasteful expenditure in a developing country. This would allow for funding to be available for investigations in other important areas such as digital fingerprinting and computer data retrieval systems.

Forensic DNA profiling is a valuable tool and can be used under the control of a medical professional in cases involving sexual assault, where the specimen collected forms part of overwhelming evidence. Further, profiling in the case of sexual assaults can identify a serial rapist and the geographical area in which he operates. This method has been utilized by South African pathologists to solve crimes that involved serial killings. The SAPS receive several sexual crime kits daily which should be immediately analyzed and profiled so that repeat offenders can be sought through intelligent policing by creating a database of individuals connected to the crime. However, the police will only facilitate testing of a specimen when an investigating officer assures them that a suspect has been apprehended.

Recommendations

1. The DNA forensic science laboratory becomes an extension of Forensic Medicine, managed and controlled by health professionals with oversight of an independent Ombudsman.

2. Licensed medical professionals have control over the forensic laboratory. This will ensure that the principles of informed consent and confidentiality are respected.

3. A court order must be obtained for a suspect’s DNA to be analyzed.

4. DNA profiling be requested and supervised by a medical professional. Innocent persons’ DNA must not be on this database.

5. The South African legislature must urgently re-evaluate the broad powers that the SAPS enjoy, and the lack of accountability for crimes committed by their members.

6. The provision allowing police to retrieve human tissue from living persons and to perform DNA profiling must be removed from written law.

7. There is no reason to re-invent the law. Legislation combined with ethical oversight already exists for medical professionals to manage DNA analysis.

Crime in SA can be solved with trustworthy, intelligent and consistent policing. To agitate public emotion into believing that the lack of legislation halts forensic DNA processing and promotes crime is a misrepresentation of the fact that this function always has been in the domain of the SAPS; with or without legislation.

 

Poonitha Naidoo is an Honorary Research Fellow in the Faculty of Law at University of KwaZulu Natal and a coordinator of the Medical Rights Advocacy Network.