RESPONSE TO SUBMISSION MADE BY HUMAN RIGHTS COMMISSION PRESENTATION TO SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS 15 OCTOBER 2013 DEPARTMENT OF POLICE: RESPONSE TO SUBMISSION MADE BY HUMAN RIGHTS COMMISSION ON 8 OCTOBER 2013

HUMAN RIGHTS COMMISSION/ POLICE RESPONSE The HRC proposed that the Bill must be aligned with the Child Justice Act by stating the corresponding Schedule of offences under which children’s DNA are to be taken POLICE RESPONSE In drafting Schedule 8 to the Bill, cognisance was taken of Schedules to various pieces of legislation, including the Child Justice Act. Clearly the focus cannot be just on the Child Justice Act. The focus was placed on the types of offences where DNA evidence is required. It was one of the recommendations in the submission made by the HRC that Schedule 1 of the Criminal Procedure Act was too wide. The HRC agreed with the Bill being restricted by a more narrowly defined Schedule which was done by inserting the new Schedule 8. The offences in the Children’s Act were taken into account, but attention had to be given to other offences where DNA is relevant. The recommendation can therefore not be supported and no amendment in this regard is proposed.

HRC SUBMISSION/ POLICE RESPONSE The HRC proposed that “or an appropriate adult” to be inserted in Clause 15K(1)(b) and 15N(2)(e). POLICE RESPONSE Both provisions presently provide for assistance by the child’s parent or guardian. Though the addition of an appropriate adult might be of assistance, it should mainly relate to a person such as a social worker. It should be appreciated that the Bill is aimed at the taking of buccal samples of suspects or possible suspects and not of victims. No amendment in this regard is therefore supported.

HRC PROPOSAL/POLICE RESPONSE The HRC states that the Bill is silent on persons with disabilities, therefore leaving the door open for possible violations of their rights. POLICE RESPONSE The proposed section 36A subsection(3) provides that: Buccal samples must be taken by an authorised person who is of the same gender as the person from whom such sample is required with strict regard to decency and order. This requirement is valid in respect of all persons from whom buccal swabs are taken not only persons with disabilities. The Minister of Police may in addition place further requirements for taking of buccal samples from any person. The opinion is held that no further amendment is required in this respect.

HRC PROPOSAL/POLICE RESPONSE The HRC recommends that a 3o day timeframe is articulated in the Bill with regards to the loading of DNA samples onto the NFDD. RESPONSE: The Bill clearly provides that DNA samples must be destroyed within 30 days form date upon which the profile has bee determined. It is incorrect as stated by the HRC that the DNA sample must be loaded on the NFDD. The profile will be loaded. It was explained that in practice it could present practical problems in laying down a time-frame in this regard. Normally it would be a seamless process. No amendment in this regard is supported.

HRC PROPOSAL/POLICE RESPONSE The HRC proposes the addition of a provision relating to the DNA sample freely and without undue influence (in case of taking of innocent person’s DNA). RESPONSE Where DNA is taken of volunteers the “informed consent” of the person is required. Courts require consent to be given freely and without undue influence to be valid consent. The Bill furthermore in the proposed section 15K(2) refers to what the person must be informed of, inter alia that “he or she is under no obligation to give consent” i.e. “freely”. No amendment in this regard is required in our opinion.

HRC PROPOSAL/POLICE RESPONSE The HRC proposes a human rights response to training in respect of DNA taking. POLICE RESPONSE The training of police officials will be given by Dept. of Health and is already prescribed. In addition the proposed section 15T provides that the National Commissioner and Director of IPID must develop awareness programmes to support the implementation of the Act, aimed at the public, the police and IPID. A human rights approach is reflected in various dimensions of the Bill No amendment in this regard is supported.

HRC PROPOSAL/POLICE RESPONSE The HRC recommends that the SAHRC as a Constitutional body accountable only to parliament and the Constitution should be removed from the Oversight and Ethics Board, and the Secretary of Police also. Also that the Board be mandated to promote, seek and remedy for violations of human rights. POLICE RESPONSE The Oversight and Ethics Board can determine its own rules. It was expected that the representative of the HRC could give guidance as to human rights issues in the Board. However, should it not wish to be part thereof, it must be respected. As to the Secretary of Police on the Board, it was explained to the Committee that in terms of the oversight role of the Secretary of Police the appointment should not be conflicting as the SAPS is not represented on the Board. Proposal: Should the Committee be of the opinion that the HRC must be removed from the Bill as representative on the Oversight and Ethics Board it is respected. However this will need a reconfiguration of the Oversight and Ethics Board. As to the mandate and functions of the Board these have been carefully considered by the Portfolio Committee and should not be changed.

PROPOSED AMENDMENT OF SECTION 15V(2) OF DNA BILL (2) The Board must consist of not more than ten persons appointed by the Minister on a part-time basis for a period not exceeding five years of whom— (a) five persons must be from outside the public sector with knowledge and experience in forensic science, human rights law or ethics relating to forensic science; and (b) three persons must be from the public sector on the level of at least a Chief Director, namely— (i) the Secretary of Police or his or her representative; (ii) a representative of the Department of Health and who has knowledge in the field of DNA; [and] (iii) a representative from the Department of Justice and Constitutional Development who has a sound knowledge of constitutional law; and (iv) a representative from the Department of Correctional Services. [(c) a representative from the South African Human Rights Commission.]

Submitted for consideration Thank you.