Legislation of DNA as new form of admissible evidence on the cards


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By Byron Mutingwende


The Law Development Commission (LDC), with support from the United Nations Development Programme (UNDP) and the Centre for Applied Legal Research has embarked on a project to promote an effective justice delivery system through use of legislation that introduces new forms of admissible evidence like the deoxyribonucleic acid (DNA).


“The Commission in April 2015 organised its first consultative workshop on DNA Evidence with the major aim being to consider and discuss the Law Development Commission’s research observations on DNA evidence which included the need to have a legal framework. This was done under the ambit of the Justice, Law and Order sector, a sector-wide platform designed to offer coordinated response to issues of justice delivery with the aim of ensuring increased access to justice and the upholding of human rights,” said Lungile Masuku, the Chief Law Officer of the LDC during a consultative workshop on the use of DNA evidence held in Harare on Wednesday 12 July 2017.


Towards the end of 2016, LDC approached the Centre for Legal Research for technical and financial assistance for further development of the draft discussion paper and proposed legislation. The request was granted and it now forms part of the broader alignment process. The Harare meeting deliberated in detail the Discussion paper and the proposed DNA and the Forensic Evidence Bill.


Masuku said the ultimate aim was to have a Bill, which reflects the views of the stakeholders. Section 194 of the Constitution of Zimbabwe places an obligation on the part of public bodies to consult the public on issues of policy and legislative formulation. This resonates with the LDC’s vision of contributing to the attainment of an equitable and just legal system through the revision, harmonisation, development and reform of the laws of Zimbabwe.


Freedom Makaya, a Law Officer with the LDC said his organisation is working on the alignment of laws to the Constitution; regulating the admissibility of DNA Evidence in the courts; aligning marriage laws with age of consent; regulating theDebt Collection process and on the review of Termination of Pregnancy Act among others.


Detective Assiatant Inspector Donald Murove from the Zimbabwe Republic Police (ZRP) said the use of DNA evidence is a novel and established science that has proved to be a useful tool in the investigation of both civil and criminal cases.


“In general this approach would be applied in serious crimes where other avenues of investigation have turned up no leads. It is not an end in itself but a crucial aid to investigation.


“There is need for caution and use of strict guidelines on this scientific tool because of the potential for human error and human bias. There is an old adage which says “corruption creeps in every corner of society- even in the church”, thus DNA Fingerprinting or profiling is no exception,” Mushove said.


However, it is widely accepted even by the court that DNA evidence is an objective truth and that is why criminal justice systems world over continue to depend on DNA evidence, he added.


Generally, the techniques employed by forensic scientists in the analysis of DNA seem to stem from the fact that no two people have identical DNA except for identical twins, but even identical twins can be distinguished with further tests. Also Locard’s Principle which states that: Every contact leaves a trace. Whenever any two objects come into contact with one another they affect each other in some way, is applied in DNA analysis.


Mushove said the proposed DNA Act is intended to regulate the application of DNA evidence in both civil and criminal matters particularly the investigation of crimes where DNA profiles will assist criminal justice system to prove if a person is guilty or to exonerate accused persons.


The law enforcement officer said the manner in which pre-trial DNA evidence is collected, transported, stored and analysed is vital to fair trial processes, hence the need to develop standards for protecting the integrity of DNA evidence for trial purposes and also giving due consideration towards creating a balance between the protection of fundamental constitutional rights and the interests of society in ensuring the protection of citizens from serious and violent crimes, appropriately eliminating suspects and safeguarding against wrongful convictions and other miscarriages of justice.


In that regard, he said the new legislation should specifically provide for retention and destruction periods of DNA samples or forensic DNA profiles; mandatory collection by authorized persons of DNA samples from suspects at the time of arrest; and defining what categories of authorized person may collect certain types of DNA samples.


“Measures should be provided that facilitate the gathering of relevant, fairly obtained, admissible DNA evidence with the overall objective of fostering greater protection for fair trials and other fundamental rights by emphasizing that the interests of justice are as important in the context of gathering, handling and sharing evidence as they are in a trial,” Mushove said.


The purpose of collecting DNA sample from suspects is to have suspects DNA samples processed as quickly as possible and the DNA profile entered into a national Database (which in our case shall be established by the new law). This is to assist the police to investigate, if the arrested person has a criminal record and if the profile can be linked to any previous unsolved crimes by matching unknown forensic samples in the DNA database.


It is expected that the Act will establish clear institutional frameworks and their functions such as the creation of bio-banks, DNA profiling Laboratories, a National DNA Database and a Forensic Science Commission.


To facilitate safe management and storage of DNA profiles different reference indices such as arrestee, elimination, investigative, unidentified and human remains; and missing person’s indices and crime scene index and convicted offender index will be contained within the National DNA Database.


It was agreed that despite the arguments against the use of DNA evidence; there is no scientific dispute about the validity of the general principles underlying DNA evidence, and as such it is still widely accepted by the courts as a robust and reliable scientific technique.


However legislators and proponents of the use of DNA evidence must remain alert to the possible attacks that are launched against DNA evidence because of its vulnerability to human error, and work towards establishing standards to minimise human error and address all the social and ethical concerns.


“One of the biggest problems facing the criminal justice systems internationally is the substantial backlog of unanalysed DNA samples and biological evidence from crime scenes, especially in sexual assault and murder cases. Too often, crime scene samples wait unanalysed in police or crime lab storage facilities because of lack of capacity, limited equipment resources, out-dated information systems, and overwhelming case management demands” Mushove said.


As recommendation he said prioritising the provision of basic infrastructure support in police and crime laboratories will go a long way to help in the acquisition of state of the art automated DNA profiling equipment which can process a large number of samples per day and can also be easily integrated to laboratory information management systems and thus allow for development of DNA profiles database.


“Consistent with rights of privacy and due process, DNA evidence should be collected, preserved and tested; and the test results interpreted, in a manner designed to ensure the highest degree of accuracy and reliability and used when it may advance the determination of guilt or innocence. Funding necessary to achieve the consistent and constant use of Forensic evidence should be provided and made a priority as it ensures that the administration of justice is effectively and fairly achieved.”