During the past few months there have been two developments relating to taking and storing human DNA which have implications for people’s human rights, including the right to privacy. In April a private NPO (non-profit organisation) announced an initiative to take and store children’s DNA and other identifying particulars in a database which could be used in the event of children disappearing. In June it was reported that a reworked version of an earlier bill amending the Criminal Procedure Act to give the police increased powers to take DNA from suspects, and to establish a national DNA database, was being considered by a parliamentary committee. In August the majority of committee members approved the amended version which will now be considered by parliament.
These developments take place in the context of a broader move, apparently driven by ‘the north’ to encourage African states to collect and store DNA – including by sending it overseas.
These moves take place against a background of unparalleled global medical and corporate interest in DNA, an important component of humans’ individuality, which has crucial privacy implications for both individuals and families. It is also a commercially valuable entity which can be cloned and patented. It is estimated, for example, that commercial developments from the Human Genome Mapping Project account for billions of dollars worth of products per annum. People who supply the DNA do not benefit from its commercial use. The patenting of ‘raw material’ in the form of indigenous knowledge and human tissue is referred to as biopiracy or biocolonialism, and ‘the north’ is accused of ‘bioprospecting’ for it in ‘the south’. As David Galton puts it (in Eugenics : The future of human life in the 21st century’ page138)’The slick virtuoso tricks of the globalised industries are appropriating the genetic raw material of indigenous peoples to create considerable wealth for their shareholders’ Like other personal information, DNA is also of great interest to powerful insurance corporations.
Taking and storing human tissue, especially by researchers in the fields of HIV and TB, has become commonplace in South Africa. This tissue is often sent overseas – much of it illegally – where its donor owners have no control over what happens to it, and whether it will be used to develop new and lucrative drugs (which they and/or their governments would have to pay for).
What safeguards do those entrusting their/their children’s DNA to others have that it will be safe, including from those wishing to use it to enrich themselves? The answer is, with any proposed storage, very little.
A proposed database for children’s DNA
According to a press eport in April a privately funded NPO called Identi Masses announced that it would be running a pilot programme in the Western Cape to take biometric and DNA samples from children (at a cost to parents), to be stored in a secure vault in Paarl, which could be accessed in the event of a child going missing (i.e. for identification purposes) As well as DNA (taken with a buccal swab), the stored data would include facial photographs, and details of eye colour, the name of the family doctor, and biometric finger prints. It was not known when the programme would be rolled out in KZN. Educators quoted in the report pointed out that parents would need to be involved, and raised important questions about the legality of what was being proposed.
Although the spokesperson for the NPO emphasised that storage would be extremely secure, and security checks would be done on personnel, the proposed project is a dangerous one. Paedophiles have shown themselves extremely innovative at infiltrating bodies (schools, scouting) centred on children, and security checks are only as good as those doing them. If that were to happen even the safety of the children whose details were stored could be jeopardised.
Such a project is completely unnecessary : If parents want to take precautions in the event of their children disappearing they should be encouraged to store the DNA of their children themselves, including through the retention of their milk teeth. Limited DNA identification is also available from locks of hair. Furthermore, some parents have already accessed kits to take and store DNA themselves, which is the best possible safeguard for them and their children – including insofar as privacy issues are concerned..
The DNA Bil
In 2009 a section of a new Criminal Procedure Amendment Act dealing with the taking of DNA from suspects by the police, and its storage in a national DNA database, was sent back for amendment by the parliamentary portfolio committee considering it.
The re-introduction of this contentious piece of legislation, which was being debated in May, received so little publicity – even on the parliamentary website – that the cut off date for submissions about it had already passed once media reports (mainly citing its enthusiastic backers) announced its return to parliament. Even forensic experts from the Durban-based Medical Rights Advocacy Network (MERAN), who had made a submission on the 2009 draft, were not informed, or called upon to give expert opinion.
The bill follows from, among other things, a study of the DNA database systems in Canada and the United Kingdom, and is a big improvement on the original version. However, serious concerns remain, including about the constitutional rights of individuals and families to privacy, the potential abuse of specimens for personal gain, the lack capacity and corruption on the part of the police, and the sheer costs of establishing and maintaining such a database in a country which has so many unmet developmental needs.
The bill allows for samples to be taken from suspects for certain types of crime, storing them for three months before destroying them, and retaining only the profiles (so privacy concerns remain).
The bill assumes that police act in a lawful manner and arrest suspects for good reason. That is not the case.. KZN Monitor has a vast amount of research material, especially in the form of cases followed up, showing the extent to which people – especially the rural poor and powerless – – are abused by the police, both physically, and by malicious arrest. Members often arrest people for no good legal reason, only for cases to be dropped or, if they proceed to prosecution, for no conviction to result There have also been cases suggesting collusion between police and prosecutors (e.g. in collusion with a corrupt local traditional leader).
The Monitor data also shows how, in one community after another, people claim that criminals – even those responsible for serious crimes such as rape and murder – are known, but are not arrested by the police who are, in some instances, accused of colluding with them..
The police may not even use the powers they already have regarding the use of fingerprints and DNA. When they do, there are multiple problems with the use and abuse of forensic evidence by both the police and the forensic mortuary services run by the Department of Health (especially in KZN).
Corruption in the SAPS is widespread and the running of its forensic laboratories is no exception. In September 2012 the police and prisons trade union POPCRU, released a dossier claiming, among other things, massive corruption at the forensic laboratory, including the sale of parts of its DNA database machine as scrap metal, the theft of narcotics evidence, and the sabotage of evidence for court cases. Unsurprisingly, it was announced in March 2013 that the DNA machine was not working
This then is the context in which vastly increased quantities of DNA would be handled if the bill is passed. In June 2013 the head of the forensic laboratory was reported to be suing junior officers for alleging he was responsible for corruption at the facility.
Although the legislation allows for an oversight body, it would be responsible to the Minister for Policing. Judging from experience the proposed oversight body will not be effective. For example, the civilian oversight policing body, has failed conspicuously to deal with police abuses, as has the Ministry of Safety and Security generally (including through the independent police investigative directorate – iPID – which it controls).
To make matters worse, conditions at government mortuaries in KZN may jeopardise the safe handling and retention of forensic specimens. Staff lack qualifications for their jobs (so the laws governing the employment of mortuary technicians are being flouted by their employers, the Department of Health). These employees have shown themselves completely uncaring about the treatment of corpses and specimens by switching off fridges during strikes, and failing to maintain proper hygiene standards generally. There is no indication of any improvement whatsoever since the 2011 KZN Monitor report on the mortuaries.
Is this database really needed?
Those promoting the bill are doubtless well intentioned and believe that DNA holds the key to solving serious crimes. However, they seem to be out of touch of the realities of crime for the majority of its victims, and just how serious policing problems are – including insofar as they impact on who gets arrested and the collection and preservation of forensic evidence. They also tend to overlook the fact that this evidence is not necessarily retrievable at crime scenes and is easily contaminated. While not without its own problems the British system, relative to South Africa, functions well, yet DNA evidence reportedly contributes only0,36% to the detection of all recorded crimes. In the UK, DNA evidence in itself is not sufficient to convict, so a great deal depends on good detective work which is in extremely short supply in South Africa.
While enthusing about convictions, what the bill’s promoters also overlook is the fact that the poor handling of DNA has also been responsible for innocent people languishing in prison cells.
The costs of establishing and maintaining such a database are also likely to be prohibitive, if the experience of the UK is anything to go by. Between 2006 and 2009 it cost that country almost GBP4,3million simply to maintain the system
Whatever its merits, arguing in favour of a DNA database is premature until there has been a transformation in police detective and forensic work, and a marked improvement in the operations of forensic mortuaries. However, having been approved by the portfolio committee the chances are it will be steamrollered through parliament – although prohibitive costs for scant returns may be taken into account. At the very least, parliament should ensure that registered health professionals are in charge of the handling of this human tissue – and that a credible, independent body, not responsible to the policing minister, has strict oversight of all aspects relating to the database.
It is a telling indictment of the slow progress to true democracy in South Africa that, unlike the citizens of Canada or the UK, on whose databases the legislation is modelled, those who are potential victims of abuses of the power it gives the police probably do not know of this legislation, or many other pieces passed by the parliament which supposedly represents them (because of the failure of members of that parliament to keep their constituents informed).
Whether the bil in its present forml passes constitutional muster in terms of individual and family privacy remains to be seen.
1.See especially ‘In the wrong hands : A DNA database in South Africa’ by Poonitha Naidoo, at councilforresponsiblegenetics.org as well as the submission on the bill to the portfolio committee by GeneWatch
2/David Galton Eugenics : The future of human life in the 21st century London : Abacus 2002
3.Figures on maintenance costs and conviction rates in the UK from Lirieka Meintjes-van der Walt ‘A South African intelligence DNA database : Paracea or Panopticon’ in SA Journal of Human Rights, Volume 27, 2011
4.For one example of how the poor handling of DNA can result in the conviction of an innocent person see Simon LeVay When Science Goes Wrong London : Penguin 2008 Chapter 9 ‘Forensic Science : The Wrong Man’
5.Main press articles cited : ‘DNA plan for SA kids’ Daily News 12 April 2013
‘Lab a crime in itself : Popcru’ The Times, 12 September 2012; ‘R75m DNA machine is ‘not working’ Daily News 11 March 2013
‘Cop vs cop in slander spat’ City Press 2 June 2013
6/Regarding ethical issues relating to human tissue and biobanking in South Africa see web-based articles by Dr Aslam Sathar