Parliament, 2 September 2009:  the Speaker of the National Assembly has referred  the Criminal Law (Forensic  Procedures) Amendment  Bill to the  to the Portfolio Committee on Police for consideration and report, the committee to confer with the Portfolio Committee on Justice and Constitutional Development.

Click here to read the Final Committee Report in respect of the Criminal Law (Forensic Procedures) Amendment Bill [B2-2009] dated 23 March 2009 http://www.dnaproject.co.za/trigger/uploads//Ad Hoc PC Report.March 26 2009.pdf

The DNA Project attended the final Committee meeting in respect of the Bill on Monday, 23 March 2009, and it was with great disappointment to hear that the Ad Hoc Portfolio Committee, who had been tasked with urgently considering the Criminal Law (Forensic Procedures) Amendment Bill [B2-2009] – (the Bill), concluded that due to time constraints, they were unable to pass the Bill during this parliamentary session.

It was surprising to hear that so much emphasis had been placed on the time constraints the Committee were under, when in fact the Committee only convened to discuss the Bill six times between 13th January 2009 (the date the Bill was adopted by Cabinet) and 23rd March 2009 (the day the report was issued). It is not clear why so little time was actually spent deliberating on the Bill, but be that as it may, we now have to wait until after the elections on the 22 April 2009 to hear who will be elected as the Chairperson of the Committee and which Members of Parliament will sit on the next Portfolio Committee to consider the Bill.

If one reads the Committee Report, one will note that constitutional issues as well as the lack of an implementation plan were cited as reasons for not being able to pass the Bill. It is unusual for a Portfolio Committee to decide upon issues of Constitutionality, especially as the only authority in South Africa which is entitled to determine the constitutionality of any provision of law, is in fact the Constitutional Court. As one member correctly pointed out “it appeared as if the Committee’s main concern had been about the implementation and not about the provisions of the Bill itself” which he had found somewhat strange since the Committee had to create the legal framework. He went on to say that “a paragraph would have resolved the matter of how the implementation of the Bill should proceed”.The roll out strategy as it had been mentioned on more than one occasion, was in his view, an invalid argument. The question of how it would be implemented was not meant to be something that held back the law in itself. Lastly, he went on to say that the time had not been too short, the problem had been other commitments which were given priority. Parliament had not been sitting for a while now and the Committee could have sat for 3, 4 or 5 days if necessary in order to finalise this very important legislation.

Click here to read the minutes of the final meeting of the Committee and the comments and concerns expressed by members of the Committee http://www.pmg.org.za/report/20090323-committee-report-criminal-law-forensic-procedures-amendment-bill-adop

The Department of Justice, led by the Criminal Justice Review Team took great pains to properly research the Bill and looked at international best practice to ensure that this piece of legislation contained all the necessary provisions to ensure the successful regulation and expansion of our National DNA Database. The chair repeatedly suggested that the Committee should embark on a roadshow to look at best practices such as in “Brazil, Australia and the USA”. It is submitted with respect, that the information they require in respect of the best practices worldwide is freely available on the web and the DNA Project has in fact sent the Criminal Justice Review team detailed information which describes the different practices worldwide. Why then would they need to actually physically visit these labs overseas when the information is available?

A further frustration is the fact that they ended off the meeting by all agreeing how disappointed they were that this legislation had not been passed, and that this legislation is urgently required to combat crime — if they did indeed feel this urgency, why did they not spend even more time on the Bill during the allotted time? The chair said that they will recommend to the next PC that they treat it as urgent.

So what now?

We have to wait for the elections to pass, whereafter a new portfolio committee will be convened, and the process will begin again – hopefully the work that has been done to date insofar as the redrafting of some of the provisions of the Bill, will not be negated, and hopefully too the new Committee will stick to their mandate, which is not to decide on the constitutionality of the Bill, nor whether they are satisfied with the implementation plan presented to them but whether it is implementable in law.

One must also bear in mind that a National DNA Database already exists in SA, despite the new Bill, and that it is unregulated by an appropriate law, renders it more open to abuse than the new Bill which will regulate its use and protect it from abuse – the Committee’s delays therefore are simply perpetuating a situation that urgently requires regulation.

The National Treasury in the meantime were satisfied enough with the implementation plan presented to it in February to grant the FSL R5.4 billion to implement the expansion of a National DNA Database. That the Committee have not seen fit to support these efforts means that there is a risk that these funds may be lost if not utilised as envisaged.

The South African public needs to ensure that constant pressure is applied on the new Committee to compel them to stand by their final recommendation in the Report which states 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.”

Let us make sure that we hold them to these sentiments and recommendations…

It was whilst drafting the annual news-letter, that I received a call from the Department of Justice, advising me that the new DNA Bill had been adopted by Cabinet. I sat there, alone, and screamed out loud, as this was but a distant vision 4 years ago. I wonder how many of you reading this newsletter, have heard me talking about the critical importance of changing legislation in SA to accommodate a National DNA Database? I hope that you too scream out loud when you read this news, as without this fundamental change in legislation, the future potential of a National DNA Database will remain a dream. It is a wonderful way to end an otherwise tumultuous year – the adoption of the new Bill provides hope for the New Year as it paves the way towards crime resolution, detection and prevention. But the adoption of the Bill now requires public submissions, and lots of them, commenting on the Bill – and it is here that each one of you reading this newsletter, must take a stand and make the time to email your submissions to Parliament ? LiLouw@justice.gov.za as to why you think it is fundamental that this law is passed in SA. Your email will not be one in a string of unread emails that circulates endlessly, crying out for a change. Your email WILL EFFECT that change, and the more people you appeal to and ask to comment on the Bill, the more chance we have of ensuring that the Bill is passed by Parliament in February 2009. A copy of the Bill can be accessed on www.pmg.org.za If ever there was a time to tangibly make a difference in SA, it is now. Please – make yourself heard.

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