Criminal law (Forensic Procedures) Amendment Bill: SA Human Rights Commission submission and SAPS response

Meeting report

Criminal law (Forensic Procedures) Amendment Bill: SA Human Rights Commission briefing
Dr Danny Titus, Commissioner, South African Human Rights Commission, said that the South African Human Rights Commission (SAHRC) applauded the work done by the Committee on the Criminal Law (Forensic Procedures) Amendment Bill (commonly referred to as the “DNA Bill”, so far. The SAHRC referred to the precedent in the European Human Rights field, and noted that the United Kingdom had decided against the compilation of a database of DNA and other forensics. However, The European Union Human Rights Commission blocked similar legislation to that contemplated by the UK.

Dr Titus said that one issue of concern with the current suggestions was that the SAHRC did not believe that it should be part of the National Forensic Oversight Ethics Board, because it was a Chapter 9 Institution, and that could lead to conflict of interest. He reminded the Committee that the SAHRC was a Constitutional body accountable only to Parliament and the Constitution.

Ms Racheal Ward, SAHRC Researcher, said that the written submission of the SAHRC would focus on the human rights concerns with the Bill, and provide recommendations. She confirmed that the SAHRC was said empowered by the Constitution to submit recommendations on the Bill.

The first concern of the SAHRC was that the Bill was inconsistent with the Child Justice Act (CJA), which prescribed a different set of offences to those set out in the Criminal Procedure Act (CPA). There was a need for the consent of a parent or guardian in the taking of the DNA samples. The SAHRC recommended that the Bill should be aligned with the CJA, by making reference to the corresponding schedule of offences, in relation to the way in which children's DNA samples were to be taken.

The SAHRC also was concerned that the Bill was silent on the position of persons with disabilities, therefore leaving the door open for possible violation of their rights. SAHRC recommended that the sample should be taken in a manner which did not impair. the dignity of the person, and the language used to convey the procedure should be understood even by people who were using sign languages.

The third concern was that timeframes were not specified in the Bill, with regard to the loading of the DNA  samples. Another concern related to the fact that SAPS personnel were not trained to take samples. There was no provision around taking samples from innocent persons. The Commission recommended that a 30 day time frame should be clearly articulated in the Bill, and penalties should be established for non-compliance. The SAPS personnel should be properly trained to ensure that an approach consistent with full respect for human rights was followed.

Following up on the concerns outlined by Dr Titus, Ms Ward commented that the participation of the SAHRC on the National Forensic Oversight and Ethics Board would be inappropriate, as it had the potential to compromise the independence of the SAHRC, particularly if it had to handle a complaint from or against the Oversight Board. For this reason, SAHRC recommended the removal of compulsory participation of  SAHRC on the oversight board. In addition similar concerns related to the Civilian Secretary of Police, if the Board was to handle complaints.

Discussion
The Chairperson said that he would not allow any discussion on the SAHRC submission, other than questions of clarity or comment.

Mr T Chaane (ANC, North West) asked how old the EU law was, on which the recommendations were based. He also enquired what the particular strengths that law had to withstand any forces that might work on it.

Dr Titus explained that EU law had been in existence since 2008.

Mr A Matila (ANC, Gauteng) said that South Africa had always wanted to adopt the best international practices for protection. However, he noted that the SAHRC was mostly concerned with protection of individual human rights, with less emphasis on the rights of the country.

Dr Titus explained that the EU law only applied to Europe, but all countries had to share information and work with each other. International cooperation was of utmost importance. Some countries had realised that they could not promote human rights alone, hence the existence of bodies like the United Nations and of regional bodies as the African Union. He cited the example of South Africa’s signature of an international treaty abolishing the death penalty. He wanted to emphasise that he was not wishing to imply that European laws were superior, but there were certain fundamental and universally-observed human rights, such as freedom of association and expression. The human rights were essentially rights of national interest.

Mr Matila said that when South Africans visited other countries, they were searched thoroughly, in countries such as Israel, USA or even Kenya . In South Africa, however, persons of other nationalities were more protected because of the greater emphasis here on human rights. He felt that South Africa needed to protect the country more, and perhaps put less emphasis on individual human rights. It was, in his view, common knowledge that South Africa was a “free-for-all country, where anything goes”. He noted that the incident involving the landing, at the Waterkloof Military Airbase, of the Gupta’s private aircraft could not have happened in any other country except South Africa. His main concern was that it was very easy for other people to take South Africa for a ride.

Dr Titus explained that at the dawn of liberation in South Africa, there was a need to transform and change the old apartheid police force. That was done, amongst others, to include such aspects as the eradication of torture and other ills. He said that the SAHRC was more than willing to have a special session on how human rights were linked to the protection of national interests.

Dr L Nzimande (ANC, KZN) asked for the views of the SAHRC on correctional service inmates’ rights, as there was a reference to compiling a database of those held in centres.

Ms Ward replied that the new Bill would only include existing inmates / prisoners under Schedule 8. She further pointed out that the Bill also provided for the exoneration and the expungement of samples from the database when they were no longer needed.

South African Police Service (SAPS) response to proposals of SAHRC
Mr Johannes Phahlane, Divisional Commissioner: Forensic Services, South African Police Service (SAPS), said that the 30 days suggested timeline for the samples to be tested was impractical. In Pretoria, water services had recently been suspended due to some work in the system, and the forensic laboratories could not work without water or electricity so this was simply not practical. He pointed out that these were matters outside the control of SAPS; water services were operated by municipalities, and laboratory operations could be influenced by many other external factors. The suggestion was, in his view, not sensitive to the realities on the ground.

Mr Phahlane noted that when the Bill was put into operation, there were bound to be capacity challenges, especially at the initial phases, and these would create backlogs. He quipped that if the proposals on penalties were introduced as suggested, he, as head of Forensic Services, would end up in jail. The issue was really was not about any disregard for human rights, but related to the realities of the capacity challenges.

Major-General Adeline Shezi, Head: Quality, Forensic Division, SAPS, asked for more information on the EU law referred to. She pointed out that the revised Bill clearly stated that body samples should be analysed within 30 days, unless there were complications. The new section 15K in the revised Bill said that an innocent person was under no obligation to give DNA samples. She further commented that in regard to the suggestions for training of SAPS around human rights approach, the SAHRC should have been more explicit.

Major-General Philip Jacobs, Head: Legal Services, SAPS, said that the part of the Bill dealing with DNA was an extension of the broader forensic legislation dealing with fingerprints.

He pointed out that on page 4 of the Bill, in sub-clause (ii), the Bill was very specific about the rights of and need to protect of children. There was also a specific further subclause stating that samples should be taken by a medical practitioner.

Major-General Philips suggested that this then left only one substantial issue, which was the proposal for the removal of SAHRC from the oversight board. The Secretary of Police could not be removed, because she was mandated by the Constitution to monitor police conduct.

The Chairperson noted all comments and said that they would be further considered by the Committee.

The meeting was adjourned.