Back in Parliament: a Phased approach to the DNA Bill

Wednesday, 28 October 2009, and I was back in Parliament. What was originally supposed to be a day of public hearings on the Bill, became a morning of hearing how the Portfolio Committee for Police (PCP) have unilaterally decided to “split” the Criminal Law (Forensic Procedures) Amendment Bill into two “phases”.

This decision was taken last week on Thursday, 22 October 2009 in an impromptu, unscheduled meeting held by the PCP in Parliament. No-one was advised of that meeting, and not even the Parliamentary Monitoring Group were present, so there is no official record of what was said, why this decision was taken, nor who was present at that meeting. Be that as it may, the Chairperson was adamant that it was well within the PCP’s ‘constitutional right’ to have held this meeting and to have made this decision to split the bill, and as such, she refused to enter into any negotiations with regard to whether her decision was or was not justified.

This decision was however challenged by Mr Deon Rudman, Deputy Director General: Legislation, Department of Justice & Constitutional Development as he felt that the PCP did have a duty to confer with Justice with regards to any decision taken by the PCP with regards to the Bill. He stated that they had not been informed of the meeting held on 22 October 2009, having only heard about it on the 27 October 2009. He felt that the Minister of Justice needed to be advised of this decision and that the PCP should await his instructions as to whether the Minister is in agreement with their decision.

The Chairperson disagreed with Mr Rudman, and said that she would only hear input with respect to the Bill as it stands i.e. in its split form and not in respect of their decision to split the Bill. Any debate as to the rationale behind this decision or the correctness thereof will simply delay the review process, which they want to avoid.

Therefore: we must now consider the implications of this decision:.

In the first place the PCP only have 3 more weeks this year to finalize their review of the Bill. They feel that the DNA section of the Bill requires far more input and insight than the Fingerprint section, due to the constitutional questions they believe the DNA section may raise. As such, in light of the fact that the Fingerprint section of the Bill, which simply calls for an amalgamation of the 3 fingerprint databases in SA (namely those held by the SAPS, Transport and Home Affairs), they believe it would be prudent, to review this section first , finalize and pass it, and allow that process to continue, whilst they then looked at the complex issues inherent in the DNA section of the Bill. They have undertaken to do this as a matter of urgency as they recognize the importance of the DNA section of the Bill in the fight against crime in SA. The Committee stated that they believed the following issues would need to be looked at in detail in the DNA Bill:

1. the challenges that it may lead to a violation of an individuals rights to privacy, presumed innocence, equality, bodily integrity and the impact on the rights of children;
2. the retention of profiles of people not convicted and the length of time samples are  kept by SAPS;
3. the implementation plan and cost implications of same.

So: the phased approach will be as follows:

Phase 1: will deal with  body prints and fingerprints
Phase 2: will deal with DNA.

In Phase 2, the PCP will conduct a comparative study with other countries with the same legislation and bill of rights as SA and conduct an international tour to look at certain countries and the way in which they implemented a DNA database and DNA legislation. They have assured everyone that the DNA Bill will be processed during 2010.

The state law advisors then when on to brief the Committee as to how they intend to  split the Bill.  They dealt with the current Bill, page by page, and showed the Committee where all parts of the Bill relating to DNA have been taken to for the purposes of phase 1. These stricken parts are now going to be redrafted into a new DNA Amendment Bill, which will deal solely with DNA and the establishment of a National DNA Database in SA.

In the meantime, the provisions of the Criminal Procedure Act will continue to apply to the current DNA Database.

Following the closure of the meeting, I was approached by one of the members of parliament, Ms Annelizé van Wyk. Ms van Wyk was part of the previous ad hoc portfolio committee tasked with reviewing the Bill at the beginning of the year, and by now, is no doubt familiar with my face and presence at every meeting relating to this Bill! Ms van Wyk stated that she “saw my face” when the split was announced and was at pains to assure me that despite that fact that it has been split, the Committee will continue to treat the DNA section as a priority in the fight against crime. I am very glad that Ms van Wyk, made this statement, as I pointed out that we are currently operating in a legal vacuum with an inadequate legislative framework to regulate the existing DNA database and retention of DNA profiles and samples. Her assurance that the DNA Bill will NOT  be left by the wayside and will be dealt with next year, is promising, and we have to hold her to these words, as there has been a huge groundswell of support for the DNA section of the Bill – the public will not take lightly to the PCP simply allowing the DNA Bill  to be put to one side and neglected. Phase 2 needs to start in the New Year – and the public need to be informed as to how the PCP propose to conduct their committee hearings, in advance.

My personal opinion: initially I was disappointed, but actually, realistically, if they can deal with and finalize the Fingerprint section in this session, then let them do it, as the Fingerprint section of the Bill is also hugely relevant in the fight against crime. I do believe that this PCP is focused on finalizing the DNA Bill, and as they correctly pointed out, there are issues which need to be properly investigated. As such, by creating a separate DNA Bill, we can be assured, that it will receive 100% attention and will be a well thought out Bill which is not likely to be challenged. If we consider that in the UK, they took 10 years to make 4 amendments to get to the point we hope to get to by next year, then we are doing OK! But let’s keep the pressure on, and make sure they stick to their word – watch this space, I will be keeping very close tabs on the progress of this Bill….


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