THE Bar Association has expressed deep concern on the proposed “Bill tabled for DNA collection of persons in custody” and has called for its forthwith withdrawal.
“The Bar Association notes the publication in the Official Gazette, between June 4-12, 2021 of at least seven proposed amendments to legislation which fundamentally touch, concern and affect the administration of justice. The Bar Association, a stakeholder and body affected by many of the proposed amendments, was not consulted thereon as we should have been and must be in recognition of the duty in law to consult,” the association noted in a press statement on Monday.
The Police (Amendment) Bill No. 8 of 2021 tabled in the National Assembly last Thursday, the association said is at variance with such provisions in other jurisdictions and called for it to be reconsidered with due and proper consultation.
Underscoring that the said proposed amendment does not have the support of the Bar Association and will be met with challenge should it proceed in its current form, the Bar Association stated that the said Bill, inter alia, proposes to amend Section 25 of the Police Act, Cap. 16:01 to empower a member of the Police Force, for the purpose of identification, to take the ‘DNA’ of any person who may, from time to time, be in lawful custody.
“The proposed amendment, if passed in its current form, without more, can result in the gross erosion and infringement of a person’s constitutional rights. Inter alia, Article 143 of the Constitution protects against the search of a person without his/her consent or an Order of the Court. The Bar Association therefore finds it wholly unacceptable that the power to obtain ‘DNA’ from the body, would be placed in the hands of a member of the Police Force without oversight and sufficient safeguards,” the Bar Association emphasised.
It noted that Section 25(2) of the said Act makes provision in the case of refusal of a person to submit to same, to be taken before a magistrate. However, the Bar Association stated that this threshold is low as the magistrate only needs to be satisfied that the person is in lawful custody.
No consideration, the Bar Association stated is required to be given to any other factor or circumstance including whether the ‘DNA’ is required in connection with the offence, there is sufficient evidence to ground a charge, the nature of the offence and or how the DNA is to be obtained or secured.
“‘DNA’ evidence is a useful tool in proving the guilt or innocence of an accused. However, the obtaining of that information merely on arrest, without consent or Order of Court, is alarming and dangerous. Generally, ‘DNA’ can only be obtained from the body by invasive means, which also raises concerns of State-sanctioned assault, if done without consent. The proposed amendment is so wide that it lays fertile ground for much mischief in the event of its misuse, without due and proper safeguards,” the Bar Association stated.