Is DNA Profiling In A Legal Black-Hole? By Abubakar D.Sani, Esq

Introduction

Since the Lagos State Government established a DNA and Forensic
Centre in 2017, other States (notably, Ekiti) are reportedly either
understudying the Scheme or have already done so – though I’m not
quite sure about the latter. This is a positive development, of
course, as the benefits of the technology, particularly in
apprehending criminals, are all-too-obvious. What is not so clear
is the legal framework underpinning DNA technology in Nigeria. At
the risk of sounding presumptuous, I believe that there is
something of a legal lacuna in this regard, which those States,
which have mooted the idea, seem to have lost sight of.

This intervention intends to spark a conversation around the
subject, by posing the question whether any law in Nigeria
regulates the establishment of DNA Centers like those of Lagos and
Ekiti (in view). Do State Governments possess the legal capacity to
establish DNA and similar forensic laboratories? If no law
authorizes Lagos et al States to do so, what is the status
of any report(s) produced by those facilities, either as evidence
or otherwise? Profound questions, indeed. Let us attempt some
answers. First of all . . .

What Is DNA Profiling?

This is the most fundamental question of all, of course, for the
purposes of this discourse. For its answer, I hope I’ll be forgiven
if I borrow the words of “The Advocate” (ThisdayLawyer Editor, Mrs.
Onikepo Braithwaite) in the penultimate edition of the magazine,
where she quotes an unattributed source as defining DNA as “a
complex molecule that contains all the information necessary to
build and maintain an organism”. Additional insight is
provided by B.R. Sharma at pages 1123 and 1127 of his book,
“Forensic Science in Criminal Investigations and Trials”, where he
opined that: “DNA is the basic genetic material in all the
living cells of the body; its structure determines a person’s
character, behaviour, and body features; because DNA varies from
person to person, each individual is unique; it can be extracted
from a variety of materials, including blood, semen, hair,
fingernails, saliva, body tissues, body organs, bone narrow, urine,
faecal matter, tooth canal root pulp, post mortem samples,
etc.”

DNA Profiling, Forensic Science and Forensic Evidence –
any Correlation?

There is no doubt that DNA is an aspect of forensic science. The
latter is the application of a broad spectrum of sciences to answer
questions of interest to a legal system. It analyzes facts and
materials scientifically to produce essential information or
evidence to help determine the truth of a matter; it is the
scientific method of gathering and examining information about the
past, or more precisely, the application of scientific knowledge to
legal matters. A related field is forensic evidence. This is
defined in Black’s Law Dictionary (9^th ed., page 637),
as “evidence used in court, arrived at by scientific or
technical means such as ballistics and medical evidence; it is
evidence generated through the use of science to prove or disprove
facts, such as, inter alia, from blood-stains, saliva, bones,
teeth, hair, semen, fingerprints, finger-clippings, post
mortem samples, etc”.

 What Is the Legal Status of DNA Profiling
and Forensic Evidence In Nigeria?

The overarching answer to this all-important question is
provided by the 1999 Constitution. It 
confers on the National Assembly, vide Section 4(3) and
Items 23 and 28 of its Exclusive Legislative
List, the exclusive power to regulate “Evidence”
and “Fingerprints, identification and criminal records”,
respectively. By virtue of Item 68 of that List,
this power extends to matters that are “incidental or
supplementary to any matter mentioned in (the) List”. In his
seminal work, “Federalism in Nigeria under the Presidential
Constitution”  (2^nd edition, at page 43), Professor
Ben Nwabueze, SAN, defined an “incidental and
supplementary” matter, in the context of the foregoing
provision, as “one which is concomitant or attendant upon
another, something which is an accompaniment or adjunct of another.
The relation between the two is of one ancilliary to a main matter;
both must be closely connected to justify the inference that
implying one is an incident the other”.

Accordingly, to the extent that the Constitution has
specifically provided for the power to regulate
“Identification”, the next question is whether DNA
analysis is a form of identification. The answer is obviously
‘Yes’, of course, as that is the whole essence of the field.
Indeed, the definition of the verb “identify”  (in
Black’s Law Dictionary, 8^th ed., page 761), puts it
beyond peradventure: it simply means “to prove the identity of
(a person or thing)”. This necessarily leads to the question
of the statutory authority for the establishment by a State
Government of any facility for determining the identity of a person
for any purposes – be it criminal or civil (paternity) proceedings.
While this poser might come across as playing something of the
Devil’s Advocate, far from it, however, it is a function of the
critical thinking which is (or ought to be) the hallmark of an
advocate.

 After all, virtually everyone is now familiar
with the principle of   constitutional supremacy. In the
context of this piece, in THE HON. MIN. OF JUSTICE &
ATT-GEN. OF THE FED. vs. ATT-GEN. OF LAGOS STATE (2013)
All FWLR pt. 704 pg. 1 @ 41D., the apex court held that:

 “the power of the State Government to legislate on a
given matter must be traceable to the body of the Constitution,
either in the Exclusive Legislative List or the Concurrent
Legislative List or Residual List and any matter outside the ambit
of the said constitutional provisions is null and void”.

The foregoing shows clearly that, laudable as the DNA and
Forensic Centers established by Lagos and other States undoubtedly
are, the absence of the requisite constitutional authority to do so
simply means that they are operating in – at  the very least –
a legal black-hole. It is obvious that this situation is neither
satisfactory nor wholesome, as the absence of the proper legal
framework, anchored on the Constitution, is fraught with risks.

Recommendations

The notorious ‘Nigerian factor’ surely suggests that it is only
a matter of time before DNA Profiling becomes an all-comers affair.
This postulation is not far-fetched, as, without suitable
regulation, DNA results could conceivably be manipulated and
compromised, with the right inducement to those administering them.
This view might fly in the face of the conventional (or received)
wisdom that DNA tests are fool-proof. However, at the risk of
sounding needlessly alarmist, I beg to differ. In this era of
photo-shopped and digitally altered audio and visual images, what
is impossible? Lest we forget, even the identity of the President
of an entire country was recently the subject of unremitting
scrutiny, with widespread rumors (not altogether unfounded), that a
certain ‘Jibrin’ was actually masquerading as the real McCoy. .
.

But, seriously, what is the ACTUAL guaranty that the results of
the DNA test in any given case, are tamper-proof? In my view, none.
This is because of the human element involved, as previously
alluded to. A chain, it is said, is only as strong as its weakest
link. Accordingly, I believe that, beyond the presumed professional
integrity of those administering DNA tests, appropriate sanctions
ought to be prescribed by legislation for negligent misstatements
or outright fraud in the administration and generation DNA tests
and their results, respectively. To the best of my knowledge, no
such specific sanctions currently exist. Thus, apart from the
general provision of the Criminal/Penal Codes, we are left at the
mercy of a few geeks who are supposedly experts in the nascent
technology. Accordingly, a Code of Conduct for the field is clearly
an urgent policy imperative.

Such regulations should include provisions for a mandatory
confirmatory test in, at least, a separate, independent DNA Center,
which is unaffiliated to the one which conducted the initial test.
In addition, minimum standards of professional and practical,
hands-on expertise and cognate experience should be prescribed for
all levels professional and technical staff who are involved in
such tests. The foregoing cannot be over-emphasized, as experience
has shown that, regardless of the seemingly established science
that no two human beings have the same fingerprints, identical
twins with the same fingerprints do, in fact, exist.

Conclusion

It is trite law that illegally-procured evidence is always
admissible in a court of law, the overriding consideration being
its relevance. While this principle suggests that, for practical
purposes, the argument about the constitutional incapacity of State
Governments to establish DNA Labs, is inconsequential, the primacy
of the rule of law demands that the National Assembly fulfils its
constitutional mandate by taking urgent steps to enact the
appropriate legal framework to regulate the field.

At the very least, the Assembly should delegate that function to
a member of the Federal Executive – such as the Minister of Justice
or Police Affairs (or the Interior, under the present dispensation)
– in much the same way that the Assembly did so in favour of the
Minister of Petroleum Resources, pursuant to which the latter made
a raft of Regulations in the petroleum sector. Conferring that
function on a State functionary, in the circumstances, would be
unconstitutional: ATT-GEN. OF OGUN STATE vs. ATT-GEN OF THE
FED. (1982)

Abubakar D.Sani, Esq.,
Kano