The following series of emails between certain Members of Parliament and myself, relate to the progress (or lack thereof…) of the Draft DNA Bill through Parliament. I have replaced actual names with MP1 and MP2 which stand for Member of Parliament 1 and 2 – it is irrelevant as to who they are addressed to, so there is no need to publicly point fingers. What is relevant is that as Members’ of Parliament, there exists an obligation to serve the very people who put them in Parliament in the first place – us! It is that obligation, I believe, which compels me to write to these MP’s to remind them that action needs to be taken to properly fulfil this very important duty.

Read on below and decide for yourself what is fact and what is fiction…

Vanessa

From: Vanessa Lynch | DNA Project
Date: 20 February 2012 1:11:01 PM SAST
Subject: DNA draft Bill

Dear MP1

You may have heard about the man who has been arrested in Limpopo as he has been linked to more than 100 rapes. See http://dnaproject.co.za/blog/man-linked-to-100-rapes-with-help-of-dna

With a developed DNA Database, this rapist could have been identified through DNA long before he raped 100 women. Let us look yet again to the failure of our Parliamentary Portfolio Committee to act on the legislation that would give police the ability to immediately begin taking rapists off the street. The legislation sits with this Committee while the worst sexual violence statistics in the world continue to pile up. Except they are not really statistics. They are real people.

The draft DNA Bill has been in Parliament since 2008; the same Committee embarked upon a 2 week, 5 star, business class ‘fact finding tour’ to Canada and the UK last year June, and since that time have not reconvened to deliberate this Bill. 4 years later. Are you aware of this issue and political inertia which results in more women and children being raped in SA every year? If so, do you simply condone it?

I suggest you read the following article for some sobering insight.
I am interested to hear what you have to say about this and whether you are prepared to speak out on this issue?

Best regards

Vanessa Lynch

Founder and Executive Director
The DNA Project
www.dnaproject.co.za
____________________________________________

From: MP1
Sent: 23 February 2012 10:48 AM
To: MP2
Subject: FW: DNA draft Bill

Dear MP2

I enclose for your attention correspondence received by the Parliament Leaders’ Office from Vanessa Lynch.

We believe that this letter would be best addressed by you in your capacity as Shadow Minister of Police.

We have informed the author of the letter that their case is in your hands.
_________________________________________________

Dear MP1,

I have responded to Ms Lynch on numerous occasions. I have asked the secretary of the committee to produce a copy of the proposed legislation over and over again, and there is nothing on the table at this stage. The Glenister judgement will no doubt take precedence over this legislation because of the Constitution Court judgement and deadline.

If Ms Lynch continues to believe after extensive explanations of how the processes work in Parliament that the Police Portfolio Committee takes rape for granted, then she is simply wrong.

I have assured her again and again that the moment a proposed draft is tabled, that I will forward her a copy. I have also informed her that the invaluable information gleaned in Canada and the UK will form the basis for this legislation, and that we did not simply go on a holiday. The manner of our travel is determined by Parliament. We did that trip in June/July last year, not four years ago. I also presented a detailed account of the study tour to our caucus.

The draft bill she refers to was split, because of the national outcry against the DNA section of it. We did, however, manage to pass the section on fingerprints and body prints. The DNA database section is currently in the process of being totally rewritten by the SAPS and Parliamentary legal experts.

Regards,

MP2

________________________________________

Dear MP1

Fact: The Draft DNA Bill has not been put onto the Parliamentary Agenda for 2012.
Fact: The State Legal Advisors have to date not been instructed to draft a DNA Bill following the study tour. I am therefore not sure which SAPS and Parliamentary legal experts MP2 is referring to.
Fact: The only ‘tangible’ document currently existing which relates to DNA legislation is the final report from the study tour last year. No further action has been taken since that time, and if it has, I am not entirely sure what it is!?
Fact: The previous draft Bill was split because the current Committee deemed it too complicated to deal with both issues simultaneously and wanted to go on an international ‘fact finding mission’ to see what other countries were doing with their DNA legislation.
Fact: There was not a ‘national outcry’ on the previous draft DNA Bill. All, save for one, of the public submissions (and I personally listened to each one) submitted to the previous ad Hoc Committee on the first draft DNA Bill were in favour of the Bill. Only POPCRU objected and specifically only to the section which allowed private laboratories to assist with capacity.
Fact: public outcry right now is because of the Committee’s failure to finalise this Bill. The attached timeline clearly shows that following the adoption of the fingerprint section of the Bill in 2010, besides the ‘fact finding’ tour, nothing further has been done.
Fact: The Secreteriat for the Minister of Police has been assuring us, much the same as the Committee, that this Bill remains a priority (a relative term!) and that a policy document is being compiled upon which the new Bill will be drafted. Each week there is yet another promise that this ‘policy document’ will be sent to us for comment. This is the end of another week, and still no policy document. Still no Bill.
Fact: With a developed DNA Database, serial rapists can be identified through DNA preventing them from raping more women and children as the case may be.
Fact: This legislation sits with this Committee while the worst sexual violence statistics in the world continue to pile up. Except they are not really statistics.
Fact: They are real people.
Fact: Parliamentary ‘assurances’ remain empty promises to these and future victims.

Solution: pressure needs to be put to bear on the Minister of Police to urgently complete and sign off the “policy document” in order that the state legal advisors may start drafting the new DNA Bill and there needs to be parliamentary confirmation that this Bill will be reviewed by the Committee at the very least by April 2012. A full year should not be allowed to have passed between the “invaluable information gleaned in Canada and the UK that will form the basis for this legislation..” and the Committee’s review of the draft DNA legislation. We all know that important details are often lost with the passage of time and I can hardly imagine that this does not apply to all of our esteemed MP’s!!

With all due respect, we need to ensure that constant pressure is applied on the Committee’s Chair to compel her to stand by the final recommendation of the previous ad Hoc Committee which clearly stated that:

“The importance of the Bill in the fight against crime cannot be overemphasized. The Committee is totally committed to the fight against crime and view it as an absolute priority.

The Committee recommends that the next Parliament consider this Bill as a matter of urgency.” (Ad Hoc Committee, 23 March 2009)

My question is, do you think it is reasonable that “urgency” has been interpreted by the current Portfolio Committee as being a period of three years later?

MP2 is not being blamed. I wrote to you, MP1 because I think you can put additional pressure on the Committee by speaking out and ensuring that this Bill is not simply allowed to be passed over continuously for other “urgent” matters. The Shadow Minister for the Police, surely can also put pressure on the Secretariat for Police to complete the elusive ‘policy document’ so at the very least, the state legal advisors can start drafting a DNA Bill. In that way, by the time the Committee is ready for ‘action’ the draft Bill at best will be ready.

Best regards
Vanessa Lynch

___________________

And this is how it ended:

MP2: The Parliamentary Agenda changes regularly – it is not fixed. There are items on the other Committees’ agenda which are listed there because they remain a priority.
MP2: My information is that the drafting of this Bill has been left with them – I have no knowledge of the time it will take them to complete this Bill and various others.

VL RESPONSE: They have no knowledge of this instruction because it does not exist. If it does, please send me the name of the state legal advisor tasked with the drafting of the new Bill.

MP2: We as a committee did not ‘deem it too complicated to deal with simultaneously’…we got through the relatively uncontroversial sections, an needed extensive knowledge to deal with the highly technical inputs which rejected the DNA database on human rights issues. VL RESPONSE: And we are now waiting for that extensive knowledge to be put to good use!
MP2: It seems you missed the anti-submissions by the Medical Rights Advocacy Network, and by Mary de Haas, lawyers such as Martin Hood etc – all of whom pointed to what they believe was the unconstitutionality of this suggestion.

VL RESPONSE: The submissions you refer to were late written submissions not referred to in the  oral proceedings. Yes, I have a copy of these written submissions, which centre largely around the taking of samples by police.

MP2: I am unaware of any outcry that this Bill has yet to be processed.

VL RESPONSE:How shortsighted MP2 – please attend one of our many workshops, listen to the radio/tv interviews, read the press and hear and see what people  have to say about your Committees’ performance on this Bill to date. It’s a combination of disbelief and disgust.  The editor of the Saturday Star headed his editorial about the failure of your Committee to act as: ‘Raped again – by the system’ and ended it by saying ‘How long do our women and children have to wait for justice?’….

MP2:  I am aware that the Glenister judgement deadline is looming, and that the focus must first be on that Bill rather than risk being in contempt.

MP2:     I am fully aware of the benefits of such a database – although I believe that the ANC may not want to allow ie familial searches and to in many ways water down the UK model in favour of the Canadian model.

MP2:   I am more than willing to put yet another question through to the Minister asking for a timeline.

VL RESPONSE: Thank you. I believe that a definitive plan needs to be announced – without a stated intention, there remains no commitment and no accountability.

Loren Herzog, left, and Wesley Shermantine were dubbed the “Speed Freak Killers”.

DNA testing of all the remains of victims believed to be have been killed by the “Speed Freak Killers” is pending through the California Department of Justice crime lab. This will be the key to linking the remains found at scenes pointed out by one of the two surviving suspects, to those of missing people believed to have been murdered up to 20 years ago. Some bones and clothing items were found buried underground in a sealed, abandoned well for several years, all of which will tell a story as to who they belong to, through DNA technology.

LINDEN, California — A map drawn by a convicted serial killer has led authorities in California to three separate burial sites, where the discovery of human remains could bring an end to multiple unsolved missing-persons cases, authorities said Sunday.

Investigators recovered more than 300 human bones of varying sizes — as well as coats, shoes, a purse and jewelry — over the weekend from a well on land in rural northern California, said Deputy Les Garcia, spokesman for the San Joaquin County Sheriff.

The search was expected to resume Monday if weather allowed.

The site in Linden, about 100 miles east of San Francisco, was identified on a map drawn by convicted killer Wesley Shermantine who was part of a duo whose methamphetamine-fuelled violence earned them the moniker “Speed Freak Killers”. Shermantine has said there may be 10 or more victims in the area.

The remains and other items were found 45 feet deep in the well on an abandoned cattle ranch, Garcia added.

Childhood friend
Shermantine was given a death sentence in 2001 for the murders of four people dating back to 1984. Prosecutors believed he and childhood friend Loren Herzog, who committed suicide last month, were linked to as many as two dozen killings.

In addition to the site in Linden, authorities were combing two other sites near San Andreas, 60 miles south of Sacramento, where they found human remains on Thursday and Friday near land owned by Shermantine’s family, Garcia said. It was not immediately clear how many people were buried at the three sites.

DNA testing of all the remains was pending through the California Department of Justice crime lab, according to Garcia.

“These bones and clothing items have been buried underground in this sealed, abandoned well for several years,” Garcia said. “We’ll have to see what the human remains tell us.”

A piece of a human skull and bones found Saturday at the ranch will be sent to the Department of Justice in the hopes of identifying them through DNA testing, Garcia said. Dental records identified remains found Thursday in Calaveras County as those of 25-year-old Cyndi Vanderheiden, who disappeared in 1988.

Bounty hunter
Another set of remains were found Friday in the same area, and the parents of a missing 16-year-old girl have said authorities told them that Shermantine said their daughter was buried in that spot decades ago.

A Sacramento-based bounty hunter said the maps that led to the remains were drawn after he struck a deal with Shermantine to pay him $33,000 for information leading to the location of the bodies, although authorities would not confirm that.

“Six months ago started giving up information to me, and we requested maps that in early February were confiscated by the prison and sent to the sheriff,” the bounty hunter, Leonard Padilla, told Reuters.

Herzog was paroled in 2010 to a trailer outside the High Desert State Prison in Susanville. He committed suicide outside that trailer last month after Padilla told him Shermantine was disclosing the location of the well along with two other locations.

I was invited to attend and present at the 2nd Interpol Southern African Forensic DNA Conference held in Pretoria at the end of last year. As always, it is such an honour to be amongst some of the top forensic minds in the world today as well as listen to what the rest of the world is doing with DNA technology for criminal intelligence today. Heartening on one hand and sad on the other, as we are so crippled by the lack of political willpower in SA to make changes in our legislation which would enable us to more fully utilise our DNA database as a crime intelligence tool.

Dr Simon Walsh (Australia) presenting at the Interpol Conference in Pretoria, Dec 2011

I met with the Secretariat of Police, Jenny Irish-Qhobosheane last week who has advised us that the draft policy document, upon which the new DNA Bill will be drafted, should be ready to be sent to us for our comment by the end of this week. Let’s see if that promise holds true.

In the meantime, it is significant to look at the progress of the DNA legislation in England and Wales following the Marper Judgement. Insp Stacey Dibbs ACPO (Association of Chief Police Officers) DNA Staff Officer, who presented at the Interpol Conference last year, informed us that they are expecting Royal Assent on the new draft legislation sometime before Easter 2012. However, she believes that implementation would take quite a lot longer. I have set out briefly below, the salient points of  Insp. Dibbs presentation which discussed the Impact of DNA legislation & the National DNA Database  in England and Wales. This is significant because our Portfolio Committee visited England last year with a view to understanding how they were going to deal with the Marper case judgment, which may have some bearing on what they plan to do with our legislation in SA.

For ease of reference, The National DNA Database in England and Wales is referred to below as the “NDNAD”:

Status of the UK DNA Database: in the wake of the Marper judgement:

NDNAD Governance:

The NDNAD is owned by ACPO – the Association of Chief Police Officers.The data held on the NDNAD is the property of the individual Chief Officers for each police force in the UK (Data Controller).

The operation of the NDNAD:
Under current legislation in England and Wales, DNA is taken on arrest for a recordable offence, in other words, any offence punishable with imprisonment.

The only DNA information from a person that is held on the NDNAD is the DNA profile along with the result of the male/female gender test. The DNA profile can then be searched against unidentified DNA profiles recovered from crime scenes or victims and this profile is retained on the NDNAD and provides a line of enquiry in the identification of a potential offender by generating matches with material recovered from crime scenes or victims.

In a typical month in the UK,  DNA profiles from approximately 3,200 crimes will match with individuals on the NDNAD, roughly split between 300 (9.4%) serious violent crimes and 2,900 (90.6%) acquisitive crime (burglary, vehicle crime etc)

NDNAD Overview:
The National DNA Database Delivery Unit operates the NDNAD.  The work of the Delivery Unit includes quality assurance of the work undertaken by forensic providers. The NDNAD continues to provide police with the most effective tool for the prevention and detection of crime.

Since 1998, more than 300,000 crimes have been detected with the aid of the Database, reassuring the public that offenders are more likely to be brought to justice. During 2008-09 there were 36,727 crimes with a DNA match (which includes cases where the individual had an innocent reason for being at the scene).

Statistics – Summary:
Profiles currently held on the NDNAD:
ca. 5.5 million individuals (end September 2011)
ca. 395,000 crime scene (end September 2011)

The Database provides the police typically with matches against around 800 crimes each week.
These are potential crime detections (Outputs not Outcomes):

When a crime scene profile is loaded to the Database, probability of obtaining an immediate match is over 60% (as of end September 2011)

Current Delivery Model:
The delivery model has grown organically since 1995. NDU now operate the following DNA database services:
National DNA Database
Police Elimination Database
Vulnerable Persons DNA Database
Missing Persons DNA Database
Each database is distinct and separate from the records held on the other DNA databases, but has the same level of security and control as the NDNAD.

Future delivery model:
National DNA Database
Automate all processes currently in operation
Allow flexibility to allow for collaboration between Scientific Support Units
Expand searches to include familial and mixed DNA searching against NDNAD
Explore the possibility to store the actual results rather than the numerical designations
Police Elimination Database
Vulnerable Persons DNA Database
Missing Persons DNA Database
Centralised Y-STR DNA Database
Centralised Partial Profiles Database
Co-ordinated Manufacturers Elimination Database service
Co-ordinated DVI DNA response service
Biometric Vetting of pre-employment recruits

The Results from the National DNA Database (NDNAD):

In a typical month in the UK DNA profiles from 3,000 crimes will match with individuals
on the NDNAD, roughly split between 10% from serious violent crimes and 90%
acquisitive crime

Cold Cases – Results from the re-examination of rapes cases in the MPS

364 cold cases submitted for re-examination
340 DNA profiles obtained that were not from the victim
198 matches to suspects; 63 have been prosecuted, 45 pleaded guilty and 18 convicted by
a jury
12 outstanding unsolved linked series profiles

NDNAD Legislation

Police and Criminal Evidence Act (PACE) 1984 is the Legal Foundation

Criminal Justice and Public Order Act (CJPOA) 1994 is the framework for Database existence and Operational procedures

Changes in the Data Protection Act (DPA) 1998, Access to personal data restricted to authorised persons and Individual can request own information held on Database

Many years ago I met a very special dog, called “Butch”.

Jack Haskins with "Butch" (left)

At first glance, Butch appeared to be no different to any other dog. But Butch was anything but just “another dog”. Butch is a “Biological Body Fluid Detection Dog”, who was extensively trained by his handler, Inspector Jack Haskins, at the Pretoria dog school. Together, the Labrador-cross-Pointer and Haskins assist in obtaining forensic evidence at crime scenes. Butch’s expertise is mainly required in cases where body fluids are invisible to the naked eye. “Butch can detect one drop of blood diluted in 1 000 drops of water,” said Haskins. At the time of meeting this incredible team, we heard that they did not have a camera to record these detections for use in court. The DNA Project immediately raised the money and donated a high resolution digital camera to Jack and Butch so that they could do their job without any hindrances.

At the Interpol Conference in Pretoria last year, I met another two of these amazing dogs “Seun” and “Boras” and their dedicated handlers, Warrant Officers’ van Wyngaardt and Joubert.

'Seun' (left) and 'Boras' with their handlers W/O van Wyngaardt and Joubert in Pretoria, Dec 2011.

These “DNA” dogs, as I like to call them,  are trained to detect body fluids (blood and semen) at crime scenes such as murder and rape, even if the crime scene has been cleaned. They assist forensic teams by narrowing the search to an area as small as within a radius of 10 centimetres. The body fluids they locate can be tested for DNA that can link a suspect to a crime scene or a victim to a crime scene. Even if the crime scene has been thoroughly cleaned, blood can still seep into areas such as the grouting between tiles or skirting boards, under flooring, into clothing seams or furnishings. With their keen sense of smell, these ‘Biological Fluid Detection” dogs are trained to pick up the scent, even where traces of blood have been left at a scene several years ago. For example, Butch detected blood at a scene which was already four years old, where a murder had allegedly been committed and the body had never been found. The house had even been re-tiled, but Butch found evidence of body fluid at the bottom of a cupboard where it had seeped into the wood.

Warrant Officer van Wyngaardt with his DNA Dog, "Seun"

Warrant Officer Joubert with his DNA Dog, "Boras"

A case study:

Butch assisted in the “Pennington case”, where three women were raped at their beach flat in December 2006. Butch had located evidence that pointed forensic experts to DNA linking the rapists to the crime scene. Three men were later convicted and sentenced for the crime.

Another case in which Butch found forensic evidence was the high profile case of Jeanette Naicker, who was murdered in Chatsworth, Durban, in April 2007. She had been killed by her son-in-law, Sadhasiven Chetty, at her home. Chetty had cleaned up the house after the murder and dumped Naicker’s body elsewhere. When it was discovered, he had behaved as though shocked. Haskins and Butch were called to assist in the investigation and Butch detected blood in several places in the house which had been cleaned by Chetty. Chetty confessed to the murder when he could not explain away the blood found in the house.

There are not many of these amazing Biological Fluid Detection Dogs in South Africa; in fact they are quite rare throughout the world. Their usefulness is without question, invaluable in crime scene detection, particularly in South Africa and we hope that we see many more of these incredible dogs being trained in South Africa in the future. Their handlers are some of the most dedicated people I have met, who work under extreme conditions, around the clock and have very little resources made available to them – for instance one dog handler told me that he has to personally print the photos of his dog when he detects evidence, so that this can be used as evidence in court – the vast amounts of ink required for this purpose is paid for out of his own pocket. Some of his colleagues don’t even have a printer to do this nor a camera to take these photos (they have to use their cell phones!) and are forced to find other ways to photograph and print the photos required for court.  Should you wish to know more about these dogs, or would like to help their handlers in any way, please email me on info@dnaproject.co.za and I will forward you their information.

with thanks,

Vanessa Lynch

Tune into Cape Talk [567MW] today, 2 Feb 2012 @ 3.30pm when John Maytham will talk to Chris Asplen about the lack of progress in respect of our DNA Bill and how it continues to impact on the lives of innocent South African’s who are victimsied at the hands of serial offenders.

serial rapist and killer: Jack Mogale

Chris Asplen, a DNA policy expert with U.S. federal, state and international experience has an extensive understanding of the administration of DNA Databases and is recognised as one of the foremost legal experts on forensic DNA technology. He has also worked with the SA government previously as well as the governments of the United Kingdom, Italy,  the Philippines, China, India, Kenya, Croatia, Serbia, Russia, Chile, the Netherlands and several more.
Chris previously commented on how victims of rape are being let down by our politicians who have failed to pass legislation which would ensure that profiles are kept on a DNA database for criminal intelligence purposes to resolve crimes even where there is no suspect. Click here to read more.

Having noticed that the DNA Bill was not written in to the Parliamentary Programme for 2012, I emailed one of the Portfolio Committee members asking her if she could shed some light on this rather alarming omission. Her response was as follows:

“I’ve been assured by the officials that the list of Bills before Parliament changes as new Bills are introduced for consideration by the Portfolio committees, so the Police Portfolio bills for the year should be introduced by the Minister in due course.”

Mrs Chikunga Sindisiwe - Chairperson of the tour has failed to respond to any one of my emails requesting clarity on when the DNA Bill will be reviewed.

Not really satisfied with her reply I responded as follows:

“It doesn’t really answer my question as to where the Bill is and when the committee intend to review it again.   Whose responsibility is it to bring it back to the table? Has the Chairperson indicated to you as to whether your Portfolio Committee are going to get around to reviewing the DNA Bill anytime soon?”

I received a one liner:

“Nothing as yet.  Perhaps when we start our committees the programme section will give us a schedule for the year.”

I read her reply to a few colleagues last night, one of which was a German Prof visiting Cape Town – The Prof’s response was as follows: “SA is so slow and dull. Perhaps it is because we have rotten weather in Europe that we are so much faster and smarter!”.

Moral of the story: we can blame the apathy and inefficiency of our Portfolio Committee for Police on the weather!

Sad isn’t it?

7 months after their overseas study tour, this is where we are. Acceptable? I say not. This needs to be exposed as does the cost of their study tour to us taxpayers. If the study tour was so necessary and urgent, the very least they can do is get down to the business of actually using that knowledge, before it is forgotten, to promulgate legislation which will regulate our DNA Database.

Portfolio Committee Member Dianne Kohler-Barnard who went on the 'study tour' commented that the Committee do recognise, following the tour, that 'legislation is required in SA' to regulate a National DNA Database

I am meeting with Chris Asplen tomorrow and am going to discuss ways in which, from his experience, we can put pressure on our Government to address this ommission and apathy. Chris Asplen, as some of you may already know, is a DNA policy expert with U.S. federal, state and international experience. Chris has an extensive understanding of the administration of DNA Databases and is recognised as one of the foremost legal experts on forensic DNA technology. He has also worked with the SA government previously as well as the governments of the United Kingdom, Italy,  the Philippines, China, India, Kenya, Croatia, Serbia, Russia, Chile, the Netherlands and several more.
Part of the reason he is coming on this trip is because we are looking at the possibility of  setting up an NGO into Africa for awareness into body part trafficking and identification of body parts  through DNA.
However, I think it is a very good opportunity to procure his further commentary on the DNA Bill. In a previous editorial which hit several SA newspaper’s last year, Chris made some hard hitting comments which related specifically to a DNA Database in SA and how victims of rape are being let down by our politicians who have failed to pass legislation which would ensure that profiles are kept on a DNA database for criminal intelligence purposes to resolve crime even when there is no suspect.

It’s time to bring these people to book. Their apathy is more stifling and oppressive than our hot weather and I simply cannot stand it.

Vanessa Lynch