1. South African Human Rights Commission Presentation to the Select Committee on Security and Constitutional Development ‘SAHRC Submission on the Criminal Law (Forensic Procedures) Amendment Bill B9B - 2013’ 8 October 2013

2. Introduction SAHRC Submission: 1. Raise human rights concerns with the Bill. 2. Provide recommendations to strengthen the Bill. Overview of the Presentation: 1. Mandate of the Commission; 2. Issues of concern addressed in the amended Bill; 3. Provisions related to children; 4. Provisions related to persons with disabilities; 5. Other issues of concern; 6. National Forensic Oversight and Ethics Board – SAHRC participation.

3. Mandate of the Commission Constitution of the Republic of SA: Section 184. (1) (a) promote respect for human rights; (b) promote the protection of human rights; (c) monitor the observance of human rights. Additional powers derived from Human Rights Commission Act 54 of 1994. Paris Principles: (a) submit recommendations to Parliament on proposed Bills and amended legislation; and (b) promote the harmonization of national legislation with international human rights instruments to which the State is a party.

4. Issues addressed in the Bill SAHRC human rights concerns addressed within the new provisions of the Bill: o Women’s rights o Familial searches o Exoneration o Schedule of offences o Missing persons and unidentified human remains Additional issues raised and addressed in the new draft: o Financial implications of the Bill o Chain of custody o Foreign and international law enforcement agencies

5. Provisions related to Children ConcernRecommendation Schedule of offences: Inconsistency in the Bill with the Child Justice Act which prescribes a different set of schedule of offences to the Criminal Procedure Act. Align the Bill with the Child Justice Act by stating the corresponding Schedule of offences under which children's’ DNA samples are to be taken. Consent: Parent or guardian consent in the taking of DNA samples, and lack of provisions related to conflict of interest situations. ‘or an appropriate adult’ added to wording of the Bill in Clause 15K 1.(b). Disclosure: Conferring of universal powers of disclosure to parent or guardian may cause undue prejudice or reprisal to the child concerned. ‘or an appropriate adult’ added to wording of the Bill in Clause 15N 2.(e).

6. Provisions related to persons with disabilities The Bill is silent on persons with disabilities, therefore leaving the door open for possible violations of their rights.  Recommendations: In taking the DNA sample from a person with disabilities, including mental and intellectual disabilities, the authorized officer must ensure that – (a) the sample is taken in a manner which does not impair the dignity of the person; (b) the person from whom the sample is taken is fully aware and informed in a language and manner which is understood by them.

7. Other issues of concern ConcernRecommendation No timeframes are specified in the Bill with regards to the loading of DNA samples onto the NFDD. Ensure a 30 day timeframe is clearly articulated in the Bill and penalties are established for non-compliance by SAPS. Lack of provisions relating to the taking of innocent person’s DNA samples for investigative purposes. Addition of a provision relating to the submission of the DNA sample freely and without undue influence. Training of SAPS officials.Ensure a human rights approach.

8. National Forensic Oversight and Ethics Board – SAHRC Participation Conflict of interest: in the event that the SAHRC handles a complaint from or against the Oversight Board. Independence: the Commission is a Constitutional body accountable only to Parliament and the Constitution.  Recommendations: a) Remove the SAHRC from the Board; b) Consider removal of the Secretary of Police if the Board is to handle complaints; c) Mandate to promote, protect and seek remedy for violations of human rights.

9. The South African Human Rights Commission www.sahrc.org.za @sahrcommission