Rights of millions trampled, safety threatened as government drags feet over DNA bill

10 September 2021 - 09:00
Law-abiding SA's citizens' safety has been jeopardised following the parole since 2016 of nearly 100,000 violent offenders without first taking DNA samples from them.
Law-abiding SA's citizens' safety has been jeopardised following the parole since 2016 of nearly 100,000 violent offenders without first taking DNA samples from them.
Image: Thuli Dlamini

The rights of millions of South Africans have been jeopardised by the government's failure to pass a four-year-old bill that would have compelled police to take DNA samples from violent criminals before they were paroled.

This is the view of activists and politicians in the wake of justice and security minister Ronald Lamola's admission before parliament on Wednesday that 96,875 prisoners, jailed for Schedule 8 offences, had been released since 2016 without their DNA being taken.

Schedule 8 offences under the terms of the Criminal Procedure Act include violent crimes such as murder, rape, sexual assault, kidnapping, culpable homicide and robbery.

Releasing convicted offenders from prison without first taking samples of their DNA and adding it to the national database effectively gave them more rights than the rest of SA's population, said Vanessa Lynch, regional director of DNA for Africa.

“We're infringing people's rights in favour of the convicted offender population,” she said.

Along with allowing investigators to match DNA from crime scenes to known offenders, keeping DNA profiles on a database also acted as a deterrent, she added.

Lynch noted that the case of serial rapist Sikangele Mki, who was linked by DNA to a string of unsolved rapes in the Western Cape, proved how critical the database was.

After his arrest in 2016 for assault, Mki's DNA was sampled, linking him to 30 rapes that he committed in Delft between 2011 and 2015.

Instead of being handed a likely five-year suspended sentence for assault, Mki is now serving 15 life terms plus 120 years in prison after being convicted in 2017.

“That really tells the story of the power of this [database]," agreed DA MP and police shadow minister Andrew Whitfield.

“He's never getting out of jail.”

Mki was convicted before the expiry of a two-year transitional provision after the DNA act was promulgated in January 2015, during which it was mandatory for police to take DNA samples from convicted offenders.

However, the amendment bill, which was drafted 2016 to plug the gap left by the expiry of the transitional provision and which would compel authorities to take and log DNA samples from violent criminals before they were paroled, has been languishing on ministers' desks for nearly four years.

In a statement to parliament on Wednesday, Whitfield flayed police minister Bheki Cele and home affairs minister Aaron Motsoaledi for blocking the bill because they wanted to create a nationwide DNA database instead.

“That is completely dystopian and bizarre,” he said of the proposal. “It’s unconstitutional in our view and completely unaffordable.”

The investigation into the nationwide database should also not prevent the bill from getting to parliament, he added.

Convicted murderers and rapists were able to continue “their terror sprees”, knowing that any DNA they might leave at crime scenes could not be traced back to them or their previous crimes, he said.

“They may not have been released in the first place if that DNA was run through the convicted offenders’ database and matches came up from even cold cases.”

Meanwhile, Section 36D of the act, which makes it mandatory for officials to take DNA samples from people arrested, charged or convicted for serious offences, was excepted when the act was signed because there were not enough trained police officials to take the samples, said Lynch.

The exception meant police officers could use their own discretion on whether to take a DNA sample from an arrestee.

However, the reason for the exception had since fallen away as there were now enough officers who were trained to take DNA samples.

“It would not be up to their discretion [now]," she said. “They would have to take a DNA sample from a Schedule 8 offender or suspect.”

Whitfield blamed SA's escalating violent crime rates on the lack of consequences for criminals.

“People are not scared of the system any more. The system is broken and [the criminals] know that.”

Pressure on government to pass the bill has been increasing in recent weeks, however, and the matter could end up in court.

On August 23, lawyers for civil rights organisation Action Society wrote to President Cyril Ramaphosa, calling on him to implement the critical section of the Criminal Procedure Act and to ensure the amendment bill was placed before parliament for consideration.

Action Society gave the president 30 days to comply.

“We trust that it will not be necessary to approach the courts in this regard,” the law firm’s Daniël Eloff wrote.

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