the power of the double helix

The Star   THURSDAY OCTOBER 10 2013 15INSIDE

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WHEN Oscar Thwala was sen-

tenced to life imprisonment 10years ago on three counts of rape, two counts of kidnap-

ping, and illegal possession of ammunitionand firearms, he’d never heard of DNA orof its use as a forensic tool in criminal

investigations.So, when his lawyer told the then-23-

year-old street vendor that the results of 

DNA tests taken after his arrest were“unimportant”, Thwala accepted his adviceunquestioning ly.

Like many sentenced offenders, Thwalacontinued to protest his innocence long

after his trial had been concluded. Hisprotestations fell on deaf ears until 2006when a doctor – behind bars for murdering

his wife – at Baviaanspoort prison heardhis story and explained just how crucialDNA could be in excluding a suspect.

Thwala immediately began searchingfor his results, starting with repeatedrequests to a Soshanguve clinic where his

DNA had been sampled.After writing to everyone he could think

of, including the minister of safety and

security, four years later he found thereport buried deep in a police docket. Muchto Thwala’s anger, he discovered that unbe-

known to him his preliminary DNA testresults conducted by the SAPS PretoriaForensic Science Laboratory were available

at the time of his trial and the final reportwas concluded three months after his con-viction and sentencing.

But, more importantly, he also discov-ered that the results excluded him on thebasis of swab and semen analysis posi-

tively implicating his co-accused WalterRaulinga, a repeat offender with previousconvictions. “I didn’t know what to feel.

The results confirmed what I always said – I never raped that lady.”

Whether Thwala is guilty or not, only

time and the courts will tell. However, theDNA Bill – the Criminal Law (Forensic Pro-cedures) Amendment Bill – passed by the

National Assembly in August should notonly increase the possibility of arrest andprobability of prosecution, improve convic-

tion rates and act as a crime deterrent, itshould also help exoneratethe innocent.

“Though it’s important to put dangerous

criminals behind bars, it’s just as impor-tant to free the many innocent people lan-guishing in jails,” notes Professor Sean

Davison, Innocence Project SA founderand head of the University of the WesternCape’s forensic DNA lab.

“One of the most powerful uses of DNAcan be for exoneration purposes.”

In spite of 311 cases of post-conviction

DNA-based exoneration in the US from 1988to date – including 18 people who spent timeon death row – there isn’t a single such case

in South Africa’s legal history. This proba-bly isn’t surprising since DNA profilingand collection currently operates in a legal

vacuum – the Criminal Procedure Act of 1977 governing its use was promulgatedlong before the use of DNA profiling as a

criminal intelligence tool was invented.But University of Fort Hare law profes-

sor and  DNA in the Court Room authorLirieka Meintjes-Van der Walt cautions

that the bill doesn’t contain the necessarynuts and bolts for exoneration purposes:“There’s no clear mechanism enabling a

sentenced offender like Thwala to accessoriginal samples. Nor does it make provi-sion for exoneration on the grounds of new

evidence, or enable the factually innocentto apply for a hearing once all avenues of appeal have been exhausted.”

Council for Responsible Genetics’s NewYork-based president Jeremy Gruber con-curs: “The bill offers no new rights and pro-

tections for the wrongfully convicted.Though there’s general reference to post-

conviction DNA access, the legislationdoesn’t create any specific framework orseries of rights to ensure the wrongfully

convicted can use DNA to prove their inno-cence. No part of the bill is devoted to

ensuring post-conviction access to one’sown DNA for exoneration purposes. This isa serious omission.”

This is not least because high prosecuto-rial caseloads, careless handling of forensicevidence, inefficient investigations, poor

police work and clogged court rolls haveresulted in a systemic breakdown in ourcriminal justice system.

Pressure on the courts to secure convic-tions can also encourage prioritisation of 

convictions over ensuring innocent peopleare acquitted.

Given South Africa’s rocketing crime

rates, there appears to be more interest inthe bill’s potential to convict the guilty thanexonerate the innocent. The construction of 

a national forensic database where crimi-nal profiles of all arrestees and all sen-

tenced offenders will be stored coupledwith the creation of a framework for thecollection of DNA samples should go some

way to addressing popular fears.“Conviction rates should be dramati-

cally impacted by the establishment of a

DNA database,” Davison explains. “DNAprofiles obtained from testing will be

entered into the database and if a match isfound the real perpetrator of the crime willbe identified – particularly since most crim-

inals tend to be repeat offenders.”However, a DNA database is not a uni-

versal panacea for combating crime. “The

UK database has more than 4.8 million pro-files, but only had a 58.7 percent averagematch rate between database profiles and

crime sample profiles during 2008-9,” saysMeintjes-van der Walt. “The conviction

rate based on matches between profiles andcrimes is a mere 0.37 percent. High linkagerates are not supported by high conviction

rates.”Gruber is also concerned that “the

human rights issues raised by the broadcollection powers of the bill will have neg-ative implications in SA for years to come”.

“The bill affords police wide powers todecide who should have their DNA col-lected and who shouldn’t. The civil liberties

of the entire population are at risk whenthe DNA of all arrestees – people whohaven’t yet been convicted of any crime – 

and the DNA of people who have commit-ted petty crimes for which DNA evidence isirrelevant, is collected. One thing is clear:

DNA can be both used and abused.“Though one of the most technologi-

cally advanced pieces of legislation ever

passed in South Africa, the bill demon-strates that technology has progressedmore rapidly than the law. The two state

forensic science laboratories processingDNA are still managed by the SAPS.

“With regular reports of police brutal-

ity, high levels of corruption, lack of accountability and torture reminiscent of the apartheid-era, it’s not surprising that

human rights activists are concerned.Medical Research Advocacy Network

co-ordinator Poonitha Naidoo is adamant

that DNA forensic labs should be managedby health professionals with the oversightof an independent ombudsman and that

DNA buccal-swab collection is conductedby health professionals, not police officersas envisaged by the bill.

“The practice is non-invasive and in linewith international best practice, but not allcountries have as corrupt a police force as

ours,” says Naidoo. “Anyone can take a buc-cal swab but anyone dealing with humantissue must be trained to manage it and reg-

istered with the Health Professions Councilof SA. Human tissue needs to be controlled,analysed and stored by people who respect

it. It’s not impossible that an innocent per-son’s DNA could be planted at a crimescene. If the police lose dockets, they can

also lose DNA samples.”Founder of The DNA Project, Vanessa

Lynch, has lobbied exhaustively for the use

of DNA as a crime-fighting tool and theestablishment of a DNA database. Ulti-mately, she believes the successful imple-

mentation of the legislation will depend onthe continuous oversight and guidance of the National Forensic Oversight Ethics

Board which the legislation proposes.Meintjes-Van der Walt says: “Before the

database can be functional, the labs must be

accredited, police trained and regulationsput in place.”

As for Thwala, long before he under-

stood the importance of DNA or found hisresults, his 2006 application for leave to

appeal was dismissed. Since Legal Aid sub-sequently turned down his requests forassistance, last June Thwala set about fil-

ing his own SCA application with the assis-tance of “prison lawyers” – law studentsbehind bars.

“I’ve heard nothing since,” he says.Though Thwala has been warned that

DNA constitutes only part of the evidence

required to secure a conviction, with sci-ence on his side he remains as determinedto appeal his case and prove his innocence.

“I haven’t been sitting around doing noth-ing all these years. I’ve read everything thelaw students studied and many cases about

DNA. I’ve read encyclopaedias and biogra-phies and been encouraged by stories of other people’s struggles. My mother has

never lost hope in me. I feel like I’ve failedher so I need another chance to make herhappy. That’s what keeps me goi ng.”

● Carolyn Raphaely is a member of the WitsJustice Project, which is located at the Universityof the Witwatersrand’s journalism department.

MAN DOWN: Bongani Ncwadi (on the floor) and Lwazi Yawa pose during a demonstration on how to obtain DNA. The DNA Project with Nyanga policestation visited Lusaka, a township in Nyanga, to educate people about the importance of DNA in crime scene investigations. PICTURE: CINDY WAXA

DNA evidence can be used for convicting the guilty as well as exonerating the innocent. Will

the proposed new DNA legislation dent SA’s rocketing crime rates? asks Carolyn Raphaely

The power of thedouble helix