1.0 INTRODUCTION AND BACKGROUND INFORMATION
The Law Reform Commission of Tanzania (in this paper to be referred to as ‘the Commission’) is established by the Law Reform Commission of Tanzania Act. The Commission has the mandate to undertake and keep under review all the laws of the United Republic of Tanzania, with a view to its systematic development and reform.
The procedure to undertake any such review could either be at the instance of the Commission itself subject to informing the Attorney General, or by any reference given by the Attorney General.
The basis of this study was a request from the then Ministry of Health which on 24th October, 2005 requested the Commission to undertake a thorough research on DNA Identification and Genetic with a view to set a legal framework of which its Bill will be expected to be tabled in the November, 2006 Parliamentary session.
The reference emanates from the absence of a specific law regulating the technology. Admittedly, the Government Chemist Laboratory Agency has been receiving biological evidence samples for DNA testing without having a specific legislation to ensure that the privacy, legal, ethical and human right issues of an individual are properly addressed and protected.
The GCLA, the police, researchers, medical practitioners have been dealing with the issue of DNA sampling, collection, testing, handling, transportation, storage, dissemination of genetic information, consent which are nowhere specifically regulated by law apart from the DNA guidelines.
The Commission accepted the request subject to the change of the research title to read ‘the establishment of the legal framework for the application of DNA technology in Tanzania.’ The justification for the change was that the latter title covers a wider spectrum of issues including privacy hence the project becomes much more comprehensive.
The study examines the usage and application of DNA technology generally and analyses as to what should be the legal framework for the application of this technology in Tanzania.
Human DNA tests or genetic tests are divided into three broad categories based on the purpose of testing, namely, medical testing, identification testing and kinship testing. This study has given attention to forensic or identification testing and parentage or kinship testing and research on human beings only.
Although DNA technology is useful in identifying not only human beings, but plants as well, and DNA fingerprinting is also carried out for application on mammals, birds, insects, and micro-organisms, this study limits itself to human DNA and not plant or animal DNA
The study further analyses the application of this technology in other jurisdictions. It also gives a summary of the research findings from the regions visited and provides for various recommendations on the need for a legal framework pertaining to the subject matter.
During the course of the study, the Commission had regard to various methods including the following.
1.4.1 Consultation with Professionals and Other Relevant Stakeholders.
The public engagement and community consultation is one of the most important research methodology pursued by the Commission. Furthermore, this area of study is of broad community interest and concern thus it was equally important to consult widely. Since the Commission could not meet with all stakeholders, few sampled regions were visited. The Regions visited included sequentially, Tanga, Kilimanjaro, Arusha, Dodoma, Iringa, Ruvuma, Mbeya, Morogoro and Dar es Salaam. Contributions were received by verbal discussions and in some instances through written statements.
The Research team designed a system of conducting the meetings invariably by dividing the stakeholders into two categories. The first category comprised researchers and medical personnel who included, doctors, nurses, laboratory technicians, midwives, pathologists and any other personnel of kindred nature. The second category which (‘ejusdem generis’) are called law enforcers included the personnel from the police force, prisons department, judiciary, immigration staff, teachers, administrators from central and local government, such as regional administration staff and those from city, municipal and district council authorities.
Social welfare personnel were also considered to be vital in the implementation of DNA activities hence, wherever it was possible their attendance was sought with special vigour.
1.4.2 Literature Review
Various materials, on the subject matter such as relevant texts, reports, articles, legislation and conventions were referred to including website materials.
1.4.3 Administration of Questionnaires
The Commission during, the field visits in the sampled regions also distributed questionnaires to various stakeholders including medical professionals and law enforcers. The questionnaires were aimed to provoke stakeholders in order to obtain/receive relevant answers to be considered in the intended legal framework.
THE CONCEPT AND APPLICATION OF DNA TECHNOLOGY
2.1 An Over view of DNA Technology
DNA is an acronym of deoxyribonucleic acid which is a chemical found in the nucleus of every cell of living organisms. It carries the genetic information that supplies all its physical and functional characteristics (molecule that is the hereditary material in living cells). DNA is a long, double stranded molecule that looks like a twisted rope ladder or double helix, sometimes referred to as the blue print of life. DNA is the fundamental building block for entire genetic makeup. When sperm and an egg unite, equal amounts of DNA from male and female come together. DNA found in every tissue such as in human blood is the same as the DNA in skin cells, saliva, semen, urine, hair with root and bones. It should be noted that each person’s DNA is unique.
2.2 Techniques Used in DNA Analysis
The techniques used in developing DNA profiles have developed for many years as science has been advancing. The said techniques range from the rudimentary to the sophisticated ones. These are, restriction fragment length polymorphism, polymerise chain reaction, short tandem repeats analysis, single nucleotide polymorphism technology analysis, mitochondria DNA analysis and Y-Chromosome analysis.
The Restriction fragment length polymorphism (RFLP) is a technique for analysing the variable lengths of DNA fragments that result from digesting a DNA sample with restricted endonuclease enzyme. The enzyme cuts DNA fragment at specific sequence pattern known as a restriction endonuclease recognition site. In order for RFLP to work, it requires relatively large amounts of DNA sample. Therefore, one of the disadvantages of this technique is that it cannot be used in developing DNA profile from a degraded sample or a small amount of sample. With development, scientists have invented other techniques for developing DNA profile.
The first one is the Polymerase Chain Reaction [PCR] analysis which is used to make millions of exact copies of DNA from biological samples. PCR analysis technique can be applied to amplify and analyse biological samples even in very small quantities (as small as few skin cells). Its ability to amplify such tiny quantities of DNA enables even the highly degraded samples to be analysed. This is a modern technique and is still used by Scientists in DNA profiling.
Another modern technique is the Short tandem repeats (STR) Analysis. STR technology is used to evaluate specific regions (Loci) within a nuclear DNA. The variability in STR regions can be used to distinguish one DNA profile from another. STR loci consist of simply tenderm repeated sequences of 1-6 base pair in length, which is widely dispersed through out the genome. The Federal Bureau of Investigation (FBI) uses this technique in their investigation activities. Their standard set is of 15 specific STR regions.
The Single Nucleotide Polymorphism Technology (SNP) Analysis is another technique used in analysing highly degraded samples, because they are found in genes (the part of DNA thought to be most important in influencing biological differences in health and appearance) they may be able to provide more information about an individual, for example predicting their physical characteristics.
The Mitochondria DNA Analysis (MtDNA) and Y-chromosome are the advanced stages that can be used to analyse samples that cannot be analysed by RFLP or STR. The (MtDNA) technique is useful in tracing relationships among female for all mothers have the same mitochondria DNA as their daughters. This is because the mitochondria of each new embryo comes from the mother’s egg cell comparing the MtDNA profile of unidentified remains with the profile of a potential maternal relative can be an important technique in missing persons’ investigations.
The Y-chromosome is useful for tracing relationships among males or for analysing biological evidence involving multiple male contributors because Y- chromosome is passed directly from father to son.
2.3 Usage of DNA Technology
The discovery of DNA technology is considered as one of the most revolutionary and beneficial contributions to the modern scientific development in the world. Not only has it led to formidable advances in medicine and genetic biology but it has also become an important tool to law enforcers. In most countries, police officers and lawyers have used DNA testing results vide ‘Forensic Science’ to find, apprehend, convict and exonerate criminal suspects ranging from those of burglary, rape and murder. This has been so, because the reliability of DNA testing is 99.99% as opposed to the reliability of ABO blood grouping testing, which is only 20-40%. A hypothetical case herein below explains this scenario.
In a case of armed robbery, if a group ‘O’ blood is found at the scene of crime and then the investigator uses only the ABO blood group testing, and connects a person who is in group ‘O’ to such a crime, it will not be taken as prima-facie evidence to conclude that such person involved in the commission of the alleged crime because about 45% of the population in the world are group ‘O’. It therefore leaves a lot of doubt in linking a suspect to a crime scene. With DNA technology, only one sample such as blood, hair with root or shirt can be used to link a person to a crime so committed. The matches are looked at based on sequence or on numbers of small repeating units at different regions on the person’s genome. 
However the scientific reliability of genetic testimony may be affected by a number of factors, which include sample contamination, mislabelling and incorrect laboratory testing procedures. An example of a false DNA match was that of Raymond Eastern (1999) whose DNA profile obtained four years earlier during a domestic dispute had matched the DNA profile found at the scene of crime and therefore was falsely implicated for burglary.
Generally, DNA technology is useful in but not limited to scientific research, identifying missing people; criminal investigation and in civil dispute. It is also used in conserving environment, such as saving endangered and protected species; prevention of air, water, soil and food pollution.
2.3.1 DNA Technology in Scientific Research.
In the contemporary advanced World, DNA technology has played a great role in discovering and handling a number of scientific issues such as medical, pharmaceuticals and agriculture. For example, in medical field, DNA technology is used to detect inherited disorders in both prematurely and newborn babies.
Moreover, prospective parents use DNA profile information to help in making their decisions concerning affected pregnancies. For example if DNA discloses that the expected baby will be highly deformed upon birth, then parents will be guided by such result in making appropriate decision.
Again, DNA technology is useful in designing genetic cure for disorders by studying the DNA profiles of relatives who have a history of some particular disorder. In doing so, it is possible to identify DNA patterns associated with the disease in question.
Furthermore, DNA technology is used in cloning. For example in human reproductive cloning, the cloned embryo is planted in a woman’s uterus, which later develops into a normal baby. The technology was firstly applied to “Dolly” the sheep, which became the first mammal to be cloned from DNA of a Donor Sheep. With regard to the therapeutic cloning, it is used to provide replacement of organs or tissues for people who have had organs damaged (organ transplanting). The cloned embryo would normally possess DNA taken from the transplant patient
Another fundamental area of research where DNA technology has been useful is the field of pharmaceuticals. In this regard companies use recombinant DNA technology to manufacture various kinds of drugs. Agricultural specialists use DNA Technology in genetic engineering such as identifying genetically modified organisms. (GMOs).
2.3.2 Identification of Missing People.
DNA technology can also be used as an identifying tool of persons who cannot easily be identified or missing people. In that regard, many countries have begun creating DNA database for use in cases such as identifying casualties or persons missing in action course of mass disaster. This is possible through DNA technology because every organ or tissue of an individual contains the same DNA profile.
2.3.3 DNA in Criminal Investigation.
DNA technology serves as an investigative tool in criminal cases such as homicide, armed robbery, rape, threatening correspondence to mention just a few. With DNA testing, the identity of a suspect can be established conclusively by comparison of a crime scene sample profile and an individual sample profile, if there is a match then a case is established.
A suspect of a crime cannot be identified by using body tissues only but also by using species of organisms other than human beings. For example in one American case pods of a tree were used as scientific evidence to establish a murder case. The facts of the case were such that a young woman was killed in Phoenix, Arizona State, and a pager found at the scene of crime enabled the police to trace the prime suspect. The suspect admitted picking up the victim, but claimed that the deceased had robbed him of his wallet and pager. The forensic squad examined the suspect’s pick-up truck and collected pods later identified as the fruits of the palo verde tree (cercidium spp). The DNA of pods of the said tree found in the suspect’s pick-up matched to the damaged tree at the murder scene hence the conviction of the accused person.
Furthermore, in sexual offences, apart from semen, DNA testing from skin cells trapped under a victim’s fingernails if he/she scratched the assailant can also identify a suspect of the crime. DNA from suspect’s body fluids such as saliva, blood, sweat, and hair with root left at the scene of crime can be analysed to prove whether the same links him to the crime in question.
DNA technology can also be used to trace a suspect who threatens through correspondence. For example, if such correspondence was through letters, DNA results could be obtained from dried saliva left when an envelope was licked and closed
2.3.4 Exonerate Persons Wrongly Accused Of Crimes
Likewise, DNA test results can be used as evidence to exonerate persons wrongly accused of crimes. For instance one such person was Ray Krone, an American who had been sentenced to death, but while waiting for execution, which took 10 years, he was discharged upon proof through DNA testing that he had been an innocent person. Krone was accused of sexually assaulting and killing a Phoenix bar attendant in 1991. The conviction was based on testimony by a dental expert who matched the bite marks on the victim with Krone’s teeth. DNA testing revealed that saliva on the victim’s tank top did not belong to Krone, but to Kenneth Philips, who was serving a prison sentence for an unrelated sexual offence.
For over the past two decades in U.S.A, hundreds of wrongly convicted people including 115 individuals on death row have been found innocent.
2.3.5 DNA in Civil Disputes
In civil disputes especially those concerning maternity or paternity, DNA results can be used as evidence in courts of law to prove or disprove them. Several parentage cases have been resolved using DNA technology, which include cases of swapping or theft of newborn babies. For example in Bugando Referral Hospital, a case arose in which two mothers were involved in a serious controversy on the question as to who was the actual mother of the living child. What transpired is that one Esther Sambila and Esther Ndombo each gave birth at the hospital on the same day. After delivery the mothers were taken to the maternity ward and the babies to the separate ward for proper medical care. On the following day one of the nurses at the hospital called the mothers by the first name Esther to go and breast-feed living baby. It was Esther Ndambo who responded to the call and went to breast feed the baby but as she was breast feeding the baby the Doctor on duty saw the label on the baby and alerted her that she was breast feeding a baby of another mother as hers had already died due to complication after birth. The heated controversy reached the police who resorted to solve the issue by referring the case to the GCLA for further investigation by conducting DNA test of samples from babies, and their respective mothers and fathers. DNA report revealed that the baby that was alive belonged to Esther Sambila.
DNA technology can also be deployed to resolve a dispute whereby a mother falsely implicates an innocent man to be the biological father of a child in dispute. Similarly, the technology can be applied to establish a biological father who denies his own child.
In situations where there is contention concerning family relationship, kinship testing can offer conclusive evidence to resolve the same. For instance, if an alleged father is unavailable for testing there are several kinship testing options which can be used to determine if the child is related to the alleged father’s close relatives, such as his parents and siblings. Kinship tests are also available for confirming the biological relationships, such as identical or fraternal twins and maternity.
2.3. 6 DNA in Environmental Management
DNA technology has been used in saving endangered and protected species. The technology has a huge impact on the control of illegal trade in endangered and protected species. The application of the DNA test results can be deployed, as prosecution evidence to verify whether a product at a market place is that of an endangered specie possessed dead or alive.
The technology has also been used for prevention of pollution. Through DNA fingerprinting one can identify the adulterating source and therefore steps could be taken to prevent further pollution. For example, when pathogens are present in sufficient concentration they may lead an to outbreak of water borne diseases in human beings and animals. Under these circumstances, DNA technology can be deployed to detect the source of the problem.
2.3.7 DNA in Historical and Anthropological Studies
DNA collects mutation overtime, which are then passed down from parents to offspring, it contains information about processes that have occurred in the past. By comparing different DNA sequences, genetic information can attempt to infer the history of organism. One example is that of Kennewick Man of Northwest whose ancient remains have caused problems because of competing claims for the remains by Native American groups, public officials and scientists. Bones found in the United States that predate the arrival of Europeans are by law considered native Americans, but the bones of Kennewick Man show characteristics different from native Americans of that time. DNA testing is expecting to solve the problem.
2.4 DNA Database
DNA or genetic databases have been defined as ‘collections of genetic sequence information, or of human tissue from which such information might be derived, that are or could be linked to named individuals’.
The development in the field of bio informatics has necessitated the establishment of Human genetic database. Genetic samples collected for a database can include a wide range of human biological materials such as body fluids, cells and sections of tissues. The information in a database may include molecular genetic data, standardized clinical data, genealogical data and information on the health, lifestyle and environment of an individual.
On the other hand, a database can contain genetic information in the form of DNA profile from both potential suspects and samples collected from various crime scenes. The information in the database contributes to the administration of justice, for those who commit crimes are easily identified while innocent people are exonerated.
Database assists law enforcement agencies in solving crimes by identifying suspects, eliminating suspects where there is no match between crime scene DNA and a profile in the database and determining whether a serial offender is involved.
2.5 Some Global Concerns about DNA Technology
There is a concern with respect to privacy because genetic database stores large quantities of genetic samples and information that may be accessed by different people, over many years and for many different purposes. These concerns include questions about consent to storage, use and re-use of genetic samples and information, linking information to genetic samples and the extent of disclosure of samples and information. The reason for sample retention could be; to upgrade DNA profiles if the technology advances, to investigate any possible errors, and to provide additional evidence when it is not possible to obtain another sample from the suspect.
Privacy is one of the fundamental human rights recognized in the United Nations Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and Regional treaties.
The experience mirrored overseas, is that the rapid pace of change of DNA technology has produced two powerful but conflicting views. On one hand, there is a very strong view that supports the use of DNA technology because it brings better medical diagnosis, treatment, law enforcement and in the identification of missing or deceased persons. On the other hand, there are anxieties about increased loss of privacy and the potential for genetic discrimination, as well as the capacity to regulate genetic science in the public interest.
The retention of criminal samples poses a bigger threat to privacy than the storage of DNA data, because these samples could provide unlimited information about known individuals. The importance of protecting human rights in the collection and use of samples and genetic information has been recognized by UNESCO on ‘International Declaration on Human Genetic data’. Article 21 states Samples should be destroyed if the person investigated is either not charged with an offence or is found not guilty of the offence, final draft was re-written with additional clause ‘unless otherwise provided by domestic law’.
Despite the fact that, Forensic Scientists have Codes of Ethics like other professionals, there is a need for proper handling of the said professionals because consequences of breach of their ethics are serious not only to them but also to the people who are involved in the crime.
THE STATE OF THE LAW ON THE USE OF DNA TECHNOLOGY IN TANZANIA
Currently, Tanzania has no legislation, which expressly provide for application of DNA technology in several sectors of a society. The reason behind is obvious that the technology is still new to most developing countries, Tanzania being one of them. However, notwithstanding the infancy of DNA technology in the country, the use of medical science and scientific evidence in Tanzanian legal system has been embodied by various pieces of legislation under which some of the uses of DNA technology have been applied. Generally, the legislation in the country does not directly mention DNA technology. The coverage on the application of scientific evidence and DNA technology is limited to the extent as discussed by various laws herein below.
3.2 In Criminal Justice
The criminal justice in Tanzania is administered by, but not limited to the following pieces of legislation; the Penal Code, the Criminal Procedure Act, the Evidence Act and the Inquests Act. These pieces of legislation have some provisions, which have been used to deploy scientific expertise in investigation and prosecution of crimes committed against the provisions of the Penal Code or any other law creating offences in Tanzania. According to these pieces of legislation, the samples of scientific evidence such as blood, saliva, semen, hairs and fingerprints can be used for criminal investigation and prosecution.
3.2.1 At Investigation Stage
Investigation process in Tanzania is administered by the provisions of the Criminal Procedure Act. Generally, the Act provides for the procedures to be followed during investigation of crimes and the conduct of criminal trials and for other related purposes. One of the relevant part with regard to scientific investigation is that in the Act which deals with ‘investigative actions’. This part provides for the application of science of fingerprints and other scientific measurements for the purposes of investigation.
According to section 59(1) of the Act, a police officer in charge of a police station or any police officer investigating an offence may take or cause to be taken measurements, prints of the hands, fingers, feet or toes, recording of the voice or photographs, or samples of the hand writing of any person who is charged with an offence where such measurements are reasonably believed to be necessary for identification of the person with the aim of affording evidence as to the commission of an offence for which the person is charged with.
However, the provisions of section 59 of the Act appear not to cover biological forensic science in investigation process, for it is limited to physical measurements, prints of hands, fingers, feet or toes, recordings of voice, photographs and samples of handwriting of a person. The section reads:
Any police officer in charge of a police station or any police officer investigating an offence may take …measurements, prints of the hands, fingers, feet or toes or recordings of the voice, photographs of or samples of the handwriting of any person… necessary for facilitating the investigation of any crime.
The meaning of expert can be construed to mean a person who is knowledgeable of certain expertise. An example is the case of Joseph Mapema v.R where the issue was whether handwriting should be proved only by a handwriting expert. The High Court held that for the purpose of enabling a court to decide the author of any piece of handwriting in dispute, the opinion of a person who is conversant with the handwriting of the disputing author is as good as, if not sometimes better than, that of a handwriting expert.
It appears that the above quoted provisions do not cover medical science, thus one cannot apply the provisions of section 59 of the Criminal Procedure Act in criminal investigation by using DNA technology.
3.2.2. Medical Examination
The Criminal Procedure Act also provides for medical examination which is another form of scientific expertise used in investigation process. It is provided under section 63 of the Act that a magistrate, upon the application of a police officer, may direct a medical officer to examine a person in respect of an offence so charged. The magistrate may also direct a medical officer to take and analyse any specimen from that person if he has reasonable grounds for believing that the examination or analysis would provide evidence relating to the offence. After the medical officer has made the examination and analysis, he/she is required to submit a written report on it to the court.
Moreover, the court is also empowered in any proceedings to order any person who is a party to or witness in the proceedings to submit himself/herself for medical examination and the report be made thereof by the medical officer.
Again, in solving rape cases, the Criminal Procedure Act allows the use of medical science in identifying a suspect of rape. According to the Act, specimens such as semen or any other materials useful for identification of a suspect of rape are admissible. Despite the fact that, the Criminal Procedure Act does not expressly provide for DNA analysis as one of the investigative mechanism, still, the use of the term specimen in section 63(1), can be construed and has been taken so to include the specimen for DNA analysis.
Furthermore, if an investigation is on the cause of death, the Inquest Act applies. The Act requires the coroner to direct post mortem examination to be done by a Government medical practitioner. The medical practitioner, upon receipt of an order for post mortem examination should immediately examine the body. In the process of examining such a body, he/she is required to find out, who the deceased was; how when and where the deceased met his/her death; whether the circumstances of the death disclose any offence. Although the Act is silent on the application of DNA technology, still, DNA technology can be used to identify who the person/deceased was, and where the deceased met by his/her death.
A suspect of a crime under the criminal law of Tanzania is compelled to have his/her measurement and examination for investigation purposes to be taken as provided by the Criminal Procedure Act. The punishment for failure to comply with the law is a fine not exceeding ten thousand shillings and in case of default, imprisonment of a term not exceeding twenty four months or both the fine and imprisonment.
3.2.3 Admissibility of Scientific Evidence in Criminal Cases
The Criminal Procedure Act further provides for the admissibility of scientific evidence tendered in criminal trials. It is provided under section 203 of the Act that a document purporting to be a report under the hand of any Government analyst, upon any matter or thing duly submitted to him for examination or analysis, may be used as evidence. In Onyango v. Republic for instance, the appellant was convicted of theft of salt, forgery of a log sheet and of fraudulent false accounting basing on expert opinion. In this case the trial magistrate accepted the opinion of a handwriting expert that the writing in the notebook was the writing of the appellant. On appeal the High Court held that the magistrate was entitled to accept or reject the opinion of the expert. In this case the appeal was dismissed and conviction upheld based on the said expert opinion.
It should be noted that the evidence of an expert does not bind the court. In Hilder Abel v. R, the issue was whether evidence by medical expert was binding to the court. The Court of Appeal held that courts are not bound to accept medical expert’s evidence if there are good reasons for not doing so.
Again, section 204 of the Criminal Procedure Act, provides for admissibility of the report of a fingerprint expert. It provides that any document under the hand of an officer appointed for analysis of fingerprints is receivable in evidence in any inquiry or trial. The Act further provides that in any trial before a subordinate court, any document purporting to be a report signed by a medical expert upon any purely medical or surgical matter is receivable in evidence.
Moreover, the scientific evidence is admissible under the provisions of the Evidence Act as opinion of an expert. It is provided thus:
When a court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger or other impressions, the opinion, upon that point of persons (generally called experts) possessing special knowledge, skill, experience or training in such foreign law, science or art or question as to identity of handwriting or finger or other impressions are relevant facts.
The above provision envisages that evidence obtained through DNA technology can be admitted by the court as relevant facts derived from an opinion of an expert upon a point of science.
3.3. Civil Justice
In Tanzania Medical science is used in solving disputes for paternity in order to decide controversies on child custody and maintenance, which appear in the Affiliation Act. This Act provides for the maintenance of children born out of wedlock. Section 5(1) of the Act provides thus;
After the birth of a child…a magistrate shall hear the evidence of the mother of the child and any other evidence, which she may produce, and shall also hear, any evidence tendered, by or on behalf of the person alleged to be the father.
It further provides that:
If the evidence of the mother is corroborated by other evidence to the satisfaction of the magistrate, he may adjudge the person summoned to be the putative father of the child.
The above provisions of the Affiliation Act, envisages the acceptance of whatever evidence, which can prove paternity in the event of dispute. The current state of the Affiliation Act is that the court may order for medical examination to be carried out where it deems necessary for the purpose of solving the dispute. The evidence so tendered in that regard including DNA test results is admissible by the court in accordance with the provisions of the Evidence Act.
3.4. Other Laws Related to Research and Investment
DNA technology is also used in research programs to locate inherited disorders depending on the information contained in the DNA profile. By studying the DNA profile of relatives who have a history of some particular disorder, DNA technology can be used to identify patterns associated with the disease for research purposes.
In pharmaceutical companies DNA technology is used for developing new medicines. Agriculture specialists use DNA technology for agricultural genetic engineering such as identifying genetically modified organisms. However, despite this development in the use of DNA technology in Tanzania, there is no legislation which specifically regulates the use of DNA technology in research activities.
The National Institute for Medical Research Act, establishes the National Institute for Medical Research (NIMR) and provides for its functions and powers in relations to the promotion of medical research. Section 4 of the Act, only charges the Institute with the functions to carry out medical research designed to alleviate diseases, to monitor, control and co-ordinate medical research carried out within Tanzania. However the Act is silent on the control of research involving DNA technology.
There are other laws, which regulate the health sector such as the Health Laboratory Technologist Registration Act, the Medical Practitioners and Dentists Act, the Ocean Road Cancer Institute Act, the Infectious Diseases Act, Pharmaceutical Act, and Nurses and Midwives Registration Act. However, these pieces of legislation do not provide for regulations for the use of DNA technology, hence subjecting it to the risk of being misused.
The Environmental Management Act consists of provisions, which to some extent regulate the impact of GMOs to the environment. The Act requires a proponent of any project which involves GMOs to conduct an Environmental Impact Assessment before embarking on the implementation of such project. According to the Act, any project in which GMOs are involved needs to be reviewed by the National Environmental Management Council (NEMC) with a view to determine whether the project has negative impact to the environment. Such project is also subjected to the approval by the Minister responsible for the environment. Nevertheless, the provisions do not adequately take protective care of either danger or risk which could arise from loose application of DNA technology.
3.5. Impact of Lack of Legal Framework
The current state of the law indirectly allows the application of DNA technology for various purposes. However, there is no legal framework to cater for the following probable impact: There are ethical and legal challenges posed by the DNA testing. In some countries, as discussed in chapter four, concern has been raised about the misuse of genetic information particularly with computerization, the impact of digital technology and linkage of health records. These concerns are likely to reduce the willingness of individuals to undergo genetic testing even where it is beneficial. Fears about lack of confidentiality and potential misuse of information may bring impact to Tanzanian society given the lack of legal framework on DNA privacy.
The availability of new genetic science has implication to medical personnel’s legal duty of care to their patients. However, as already pointed out, there is no law to protect individuals from avoidable damage. Problems can also arise with individuals’ information to the family members. As with medical procedures, the law protects the autonomy of competent individuals to decide whether to undergo genetic testing and to accept medical treatment or advice about lifestyle changes arising from such testing.
There is a great likelihood of tussle between the rights of individuals and family rights for whom this information may have relevance to their health. As it is propounded in chapter four in other jurisdictions such as Australia and others, privacy regulations comprise a combination of common law and legislation though there is a lack of special statute to genetic information.
The absence of a legal framework dangerously gives room for the third parties to access personal genetic information. The disclosed information on the result of genetic testing for example may be used by insurers and employers to deny application for insurance policies and employment.
The risk of using DNA technology without a proper legal framework on the handling of genetic samples collected for pathology examination, such as blood or other sources of DNA, including tissue blocks and human tissue on microscope slides is great.
The absence of Tanzanian’s DNA profiles database and the law regulating its administration, has caused difficulties in identifying casualties and missing people. For example, in MV Bukoba accident in 1996, Dodoma train accident and Shauritanga fire accident, some corpses could not be identified. If DNA technology and relevant laws were in place victims of these sad episodes would have been easily traced and identified.
EXPERIENCE FROM OTHER COUNTRIES
In this chapter, endeavors are employed in a comparative approach in order to borrow experience from countries such as the European Union countries, Australia and the USA, inspite of the fact that theirs is not a long experience.
In the year 2003 the Australian Law Reform Commission in collaboration with the Australian National Health and the Medical Research Council (NHMRC) and the Australian Health Ethics Committee produced a report on the protection of Human Genetic Information in Australia.
The terms of reference for the study was to consider, with respect to human genetic information and the samples from which such information is derived in relation to the protection of privacy; unfair discrimination and the ensuring the highest ethical standards in research and practice
The reference emanates from a dichotomy posed upon the new technology that there is very strong public support for the DNA technology which facilitates better medical diagnosis and treatments, and for assisting with law enforcement including identification of missing or deceased persons. Contrary to that there are anxieties about increased loss of privacy and the potential for genetic discrimination, as well as about the capacity to regulate genetic science in the public interest
The recommendations of the inquiry, among others, are:
· The establishment of a standing Human Genetics Commission of Australia (HGCA) to provide high – level, technical and strategic advice to Australian governments, industry and the Community about current and emerging issues in human genetics, as well as providing a consultative mechanism for the development of policy statements and national guidelines in this area.
· A proposal for a creation of new criminal offence to prohibit an individual or a corporation from submitting another person’s sample for genetic testing, or conducting such testing, knowing (or recklessly indifferent to the fact) that this is done without the consent of the persons concerned or other lawful authority.
· An ethical dimension should be added to the accreditation standards for the testing Authorities and only accredited laboratories should be permitted to conduct genetic testing for health and medical purposes.
· The Government should develop national minimum standards with respect to the collection, use, storage, destruction and index matching of forensic material and the DNA profiles created from such material.
· Inter-jurisdictional sharing of information should not be permitted except in accordance with these national minimum standards.
4.3. Admissibility of DNA Evidence in Australia
In Australia DNA results is admissible as expert opinion evidence. Opinion is admissible if it is wholly or substantially based on a person’s specialized knowledge which in turn is based on the witness training, study and experience as stipulated in the Evidence Act.
Part ID of the Crime Act provides that evidence obtained from a forensic procedure is inadmissible if there has been a breach of, or failure to comply with the forensic procedure or in relation to recording or use of information on the DNA database system. However, the court has discretion to admit the evidence if it is satisfied on the balance of probabilities of matters that justify its admission in spite of non-compliance; or if the person who is the subject of the forensic evidence does not object to its admission.
Under the evidence law, the court excludes evidence led by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant. The courts must exclude evidence that has been improperly or unlawfully obtained unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way.
The enquiry has considered the current state of law on admissibility of the DNA, and it has recommended that with the exception of crime scene samples, law enforcement officers may lawfully collect a genetic sample for law enforcement purposes only from:
(a) The individual concerned;
(b) a stored sample, with the consent of the person sampled or a person authorized to consent on his or her behalf, or pursuant to a court order.
The Crimes Act authorizes the carrying out of a forensic procedure on a suspect, serious offender or volunteer with the informed consent of that person except in relation to children and incapable persons
An Australian Federal Police (AFP) constable must ask a suspect or a serious offender, who is not a child or incapable person, to consent to a forensic procedure. The constable must give the suspect or serious offender the information specified in the legislation about the nature, purpose and consequences of the forensic procedure, and must give the person a reasonable opportunity to communicate or attempt to do so, with a legal practitioner before consent is given. Where a suspect or serious offender withholds consent to the carrying out of a forensic procedure, a specified decision maker may order that the procedure be carried out without consent.
The inquiry considers that where a suspect is not in custody, or where a suspect or serious offender is a child or incapable person, only a court should be authorized to make a compulsory order. In relation to a suspect in custody, or to a serious offender, an authorized AFP officer should make a compulsory order.
One option for reform would be to remove the consent provisions from the Crimes Act and amend the existing provisions so that once the appropriate authority has made an order for a compulsory ‘forensic procedure’, the person who is the subject of the order should have the right to choose either a buckle swab procedure or the removal of hair samples. In that regard the Australian Law Reform Commission recommended the following:
· The removal of the consent provisions in relation to suspects and serious offenders so that a forensic procedure only can be conducted on these persons pursuant to an order made by a judicial officer or an authorized Police Officer.
· Once the appropriate authority has made an order for a compulsory forensic procedure, the person who is the subject of the order should be able to choose the method by which the sample is taken.
4.4. The Development of Legislation on DNA in England
In 1984 the police were allowed to ask doctors to obtain a blood sample to use for DNA testing to help with the investigation of serious crimes, with the consent of volunteers. However, forensic DNA technology was still fairly limited in its use at that time.
In 1993 the Royal Commission on Criminal Justice recommended that a forensic DNA database be established. The main driver was concern about public confidence in the criminal justice system as a whole, following a number of high-profile miscarriages of justice, for example the Birmingham Six, who had been jailed for planting an IRA bomb, but whose convictions were subsequently quashed.
In 1994 the Criminal Justice and Public Order Act (CJPOA) enabled the National DNA Database to be established. The Act changed the rules around collecting tissue samples by reclassifying saliva samples and mouth swabs as non-intimate and changing the circumstances in which a non-intimate sample could be taken without consent. This meant the police could now take samples without assistance from a doctor and could collect mouth scrapes and hair roots by force if necessary. It also changed the rules on the type of offence, from any serious arrestable offence to any recordable offence including all but the most trivial offences which greatly widened the pool of suspects. The law also stated that if a person was subsequently found guilty, their information could be stored on the database and their sample kept indefinitely; if they were not charged or were acquitted, the data and the sample had to be destroyed.
In 1997 the Criminal Evidence (Amendment) Act allowed non-intimate samples to be taken without consent from individuals who were still in prison having been convicted for a sexual offence, violence or burglary offence prior to the National DNA Database (NDNAD) being set up in 1995.
In 2001 an extension to the Police and Criminal Evidence Act 1984 (PACE) made amendments to allow all samples and fingerprints to be retained indefinitely, irrespective of whether the person had been acquitted. Another amendment also allowed samples to be retained indefinitely from volunteers taking part in mass screenings, on the condition that they had freely given their consent.
In 2004 an extension of the Criminal Justice Act came into effect on 4th April 2004. This latest development allows the police to take samples from anyone who has been arrested and taken to a police station in connection with any recordable offence, and to store the genetic data and samples indefinitely.
4.4.1 Management of the National DNA Database in England
All decisions relating to the use of the NDNAD are taken by the National DNA Database Board, which also has responsibility for overseeing the effectiveness and efficiency of its operations. The Board is chaired by the lead person on forensic science from the Association of Chief Police Officers (ACPO) and members including the Custodian of the database, representatives from the Home Office, the FSS, the National Crime and Operations Faculty, different police regions, and one representative from the Human Genetics Commission.
However, as originally suggested by the Royal Commission in 1993, then by the House of Lords in 2001 and the Human Genetics Commission in 2002, the overseeing mechanisms could be much improved by creating a new, independent advisory body that includes lay members. This body would oversee the entire operation of the NDNAD from sample collection, transportation, analysis, use of DNA profiles and in deciding the appropriate uses of the database. Such an independent body would provide the public with much more reassurance that the data and samples were being properly used and protected.
4.5 The European Union
In June 2001, the EU recommended that all member countries establish compatible forensic DNA databases, analysing the same set of STRs to produce their DNA profiles. Therefore all European forensic laboratories are now using similar profiling technology. This allows data to be exchanged between countries to help in international criminal investigations. In 2002, Interpol which is an international intelligence agency for promoting collaboration among intelligence agencies around the world, conducted a DNA database inquiry which showed that 34 out of 46 European Interpol members already had or were planning to have a national forensic DNA database.
The national laws governing the use of these databases vary a great deal, particularly in relation to whose profiles are added to the database and for how long the genetic information and samples are stored.
Some countries include only DNA profiles from people convicted of specific types of crime or people expected to serve a particular length of sentence. Some require a court order, while for others data entry is automatic. For example, in Sweden profiles are added if the offender is expected to spend more than two years in prison. In Norway profiles are added from people convicted of a serious crime, but this requires a court order. In Germany profiles are added from people convicted of specific offences based on an evaluation of whether the person is likely to repeat an offence, pursuant to a court order. In Netherlands profiles are added only if the DNA evidence has been crucial to the conviction.
In most countries, the profiles of individuals are added to the database only if the person is arrested for a severe crime or sexual assault. Only England and Wales, Austria and Slovenia include profiles from people arrested for any recordable offence. Most countries remove the DNA profiles of convicted offenders after a period of five to 20 years. Only England and Wales, Austria, Finland and Norway retain these profiles indefinitely. In the case of suspects, most countries remove the profiles if the person is acquitted or charges are dropped. Only England and Wales retain this information permanently.
A number of countries such as Belgium, Germany, the Netherlands and Norway. destroy the tissue samples once the DNA analysis has been completed, other countries, including Austria, England and Wales, Denmark, Finland, Hungary, Slovenia and Switzerland, retain duplicate samples in storage.
4.6 Comparison with the USA
The forensic database in the USA, the Combined DNA Index System (CODIS), has been modeled on the NDNAD and connects all of the 50 different state databases to a national computer network. Each state has developed its own forensic database laws while following certain federal guidelines. While all states add the profiles of people convicted of violent crimes to their database, only some states have passed laws to allow suspect profiles to be added. However, there are plans to expand CODIS in two ways: first, to include DNA profiles from persons convicted of 'any felony'; and, second, to allow all state authorities to enter DNA profiles from people who have been accused of crime or those whose charges have been withdrawn.
Before the 1995 amendment to the Criminal Code set out the criteria and procedure for collecting the necessary material for DNA analysis, Canada had no legislation authorizing the seizure of bodily tissue samples for that purpose, with or without consent of an accused. Regardless of the absence of legislative authority, DNA evidence has been used in criminal prosecution in Canada since 1988.
Developing case law had threatened the admissibility of such evidence at trial, especially in those cases where biological samples had been obtained without the consent of the accused. For example in R.v.Borden and R.v. Rtillman, in both cases the supreme court of Canada ruled that DNA evidence was inadmissible because bodily substances had been seized by police who had neither the consent of the accused, nor any prior judicial authorization.
The DNA Identification Act has been the subject of some controversy. Some people who advocate for privacy had argued for the retention of DNA data only, because of concerns that stored biological samples are more susceptible to improper use. However, the government appears to have accepted the argument that biological samples must be stored, since rapidly developing technologies could require future re-testing to ensure the availability of compatible data. Perhaps the most vehement criticism of the proposed legislation has come from law enforcement groups who believe that samples for DNA testing should be taken at the time of framing a charge, as it is done when taking fingerprints and photographs. The reason for so doing is that the police feel concerned that persons responsible for serious pending crimes would simply fail to appear on new charges if they come to the knowledge that conviction could lead to DNA screening which could implicate them in further offences.
THE NEED FOR LEGAL FRAMEWORK FOR DNA TECHNOLOGY IN TANZANIA
5.1 Research Findings and Analysis.
In this chapter efforts are directed to point out research findings and analysis based on ideas, opinion and in some cases recommendations given by stakeholders in the regions the research team visited. Invariably the sessions started by addressing the first and introductory question which, as pointed out earlier, was whether there is a need for legal framework for DNA technology in Tanzania. It was observed at every session without exception that the response to that fundamental question was in the affirmative. That situation comfortably opened the door to the subsequent questions relevant to the study and it is in this chapter that the same will be addressed and various answers from the stakeholders exposed as follows:
In simple English the term sampling means the act or process of taking a small part or quantity of something as a sample for testing or analysis. It also connotes the sample so taken and thirdly, it means “the practice or process of taking a sample and reusing it in another context” The first comment on sampling was volunteered by one of the technical staff from the GCLA who clearly and strongly suggested that there should be in place documented standard guidelines on how samples should be taken. The procedure must be spelt out in the intended law which strictly should be complied with thereafter in line with international standards from sampling to the final stage. On the aspect of taking samples it was elaborated that this process be conducted on voluntary basis and the law should be clear on this exercise in order to avoid breach of international conventions and protocols on human rights, specifically on privacy.
This apparently sweeping statement did not sail through easily, for there were some stakeholders who did not agree with it wholly. It was contended that when and how the taking of samples for the purpose of DNA testing should be based on the reason for so doing which in turn would be looked on the purpose for which the results of the DNA testing are required. If the purpose is to get results to be deployed in handling criminal cases the taking of samples from the suspect must be mandatory in order to meet the ends of justice and so of the public interest at large.
The results will be very useful to resolve evidential issues in courts which will try criminal cases where such results, for instance, in identifying criminal suspects will be an issue. The main reason advanced in support of such stand is that in the public interest the Republic’s cases should not be hindered or obstructed by mere exercise of individualistic private interests under the umbrella of private human rights.
The idea of consant from the people from whom samples are required for DNA testing to resolve civil disputes is entertainable. Such a civil controversy could be exemplified by a situation in which there is a reasonable doubt or argument as to who is the biological father of a child born by a mother within the wedlock. It was suggested in such a situation the dispute should be channeled through a court of law by way of application by the concerned parties who will be duly heard a and ruling pronounced accordingly.
Another Stakeholder emphasized the need for strict correctness in the process of taking samples. Towards that the good it was recommended that the law should continuously guard the correctness of DNA results by providing for types of professionals who would be engaged in taking samples. It was also the emphasized that it is important to list the types of species of samples which could be taken for effective results.
On the question of qualifications of personnel who can take samples, a serious discussion arose when some stated that the taking of samples should be done by medical doctors who have further been trained on DNA technology while others contended that such high medical qualifications were uncalled for though ideally relevant and aired the view that laboratory technicians properly groomed on DNA sampling would suffice.
Another group of stakeholders was of the view that the taking of samples should be done on the basis of the relevance to staffs jobs. They specifically stated that DNA samples required for solving criminal cases should be taken by crime officers who will have appropriate medical qualifications in their capacity as law enforcers. In a detailed analysis of the issue other stakeholders preferred to divide the function into sub functions for the purpose of easy facilitation. They subdivided the function into three stages. The first one was the taking of the samples which could be done by laboratory technicians with minimum qualifications of certificate on a special course of DNA profiling for a period of about three months. Testing could be performed by certificate holders who have laboratory certificates on a special course of DNA profiling while DNA interpretation should be the province of holders of Master’s Degree in DNA profiling.
While agreeing with the above suggestion another stakeholder added by saying that police officers specially and properly trained on DNA technology should be responsible for taking samples from criminal suspects and scenes of alleged crimes. As regards samples required to resolve civil disputes, such as paternity and parentage controversies, medical doctors specially trained for that purpose would be engaged to take the sample in question, subject to the same being pursued in executing a court order to that effect after the disputants concerned have been duly heard. In order to effect such procedure smoothly it was further recommended that forms akin to P.F.3 should be envisaged in the intended law. Among other items on such forms there must be places for demonstrating consent of the disputed parties and sequential portions to accumulate their respective signatures as documentary proof of the voluntariness of the action. The entire process should be legally guarded by spelling out protective and permissive provisions on not only medical ethics but even stricter on DNA technology ethics. Such provisions will take care of sensitive and dangerous possibility of the abuse of profession which could result in disastrous fracas.
A senior police officer confessed to the effect that they are using DNA tests results as evidence in criminal trials and further disclosed that in taking samples they do not have any legal provision to allow them to do so. However, admittedly they resort to the provisions in the Evidence Act and the Criminal Procedure Act whose sections he did not manage to cite. He therefore strongly suggested that while agreeing in principle on legislating for DNA technology application, the said law should contain clear provisions to take care of the issue of sampling to ease their current difficult obligation of proving cases against accused persons. As to who should take sample the same police officer objected vehemently the suggestion of crime officers to be involved in that task.
On the same point, one state attorney, while agreeing with others on sampling steps, added another input of requirement of witnesses of parties from whom the samples are to be taken in both criminal and civil disputes in order to avoid future contentions on the authenticity of the samples in question.
Another contributor came up with a drastic idea that whatever be the case no samples for DNA testing should be taken without the authority of a court of law. The court should receive an application to that effect and hear both sides and then make a reasoned ruling on whether the application is granted as prayed or rejected with legal provision for appeal to a higher court of law.
Again another stakeholder suggested that in the process of taking samples, there should be two sets of samples. One set should be transmitted to where the DNA Analyzer is situated for immediate testing and the other set to be preserved at the place of sampling as a safeguard in case that which was transmitted has been tampered with in one way or the other. Alternatively the law should provide for the person(s) from whom the samples are to be taken, where possible, to travel to the location for the sampling to be done on the spot. The usage of code numbers instead of bare names of the samples’ sources was further emphasized to cement the need for maintaining confidentiality to meet the legal requirements of privacy. A caution was further voiced in respect of candidates to be selected for training in this field. Selection be guided by the principle of gender balance and opportunity to persons from the entire country and not from Dar es Salaam alone. To simplify the problem of sampling another stakeholder recommended that the Government must buy many DNA analysers to the extent that each regional or zonal hospital should have one with its experts on sampling and subsequent steps of the process to its finality.
In addition to the above suggestions another stakeholder further argued that the taking of samples does not necessarily have to be performed by a doctor. According to him a list of experts including laboratory technicians could be in place and properly trained on the subject so that many such experts could be available to take care of the need in such a vast country in which the shortage of doctors is immense. With regard to police personnel the stakeholder further stated that it was not every police official who could be entrusted with the handling of DNA issues but only those duly trained and vetted for such assignments should be permitted to do such a job.
There was a general opinion that the law must be crystal clear on the protection of those who take samples, the individuals from whom samples are taken those who operate the DNA Analyzer, the interpreter and disseminator of the results. On privacy it was sounded that the law should take into account and abide by the International Conventions, Protocols and the Constitution of the country with reference to human rights. Accountability by all those concerned should be clearly provided for in the legislation. Along with that stiff condition, the remuneration of the personnel to deal with DNA technology must be adequately enhanced to reduce corruption temptations.
An expert from the National Institute for Medical Research (NIMR) came up with an idea specifically concerning DNA testing on a dead body. He suggested that the sampling from the dead body ideally should be conducted by a well trained pathologist. It was further recommended by him that the law should provide for compulsory DNA profiling on every dead body for research purposes so that the nation could through such tests discover new diseases for remedial advantages to the nation at large.
The Law Reform Commission of Tanzania is, in general, agreeing with the serious concern expressed by various stakeholders during the field research that the exercise of sampling in the process of DNA analyzing is crucial and critical. Therefore the Commission recommends that in enacting the law on DNA technology application clear provisions must be sequentially spelt out to avoid any possibility of mishandling which could result in tampering with the quality of the samples which are collected and transmitted to the place where DNA analysis will be finally done.
In order to achieve such a goal the Commission agrees that the sampling should be done by properly groomed personnel including medical doctors and laboratory technicians. It is further recommended that such personnel should be vetted, and breach of such vetting must be dealt with by imposing immensely severe penalties, including imprisonment of those who commit such offences.
In this subject “packing” means the act of collecting DNA samples, filling them in a container and sealing the container ready for dispatch to its intended destination where the said samples will undergo DNA analysis with the hope of getting results to answer issues which had prompted such exercise.
The field stakeholders did not differ in their contributions on this stage of DNA analyzing. One of them briefly suggested that the law must clearly provide for procedure for preserving and transporting the samples, leaving no room for tampering with them. Another stakeholder elaborated further that the law should set a procedure which compulsorily conforms to what they called ‘laboratory protocol’ which must be uniform and known through proper documentation, to avoid any doubts in handling the samples. The law should state on such processes as sequencing, and timings according to the standard form which would result in minimizing variations in handling in order to get genuine and thus credible results.
It was also urged by one subscriber that legislators should follow the procedure deployed by South Africa where special kits for packing different samples are made. Such kits are thoroughly sealed to be intact throughout the period of transportation of the said samples up to the destination.
A doctor recommended the use of specially manufactured containers for the packing of DNA samples with special identification which among other advantages shows the respective sources of the DNA samples. He compared this method with the bar coded sample container used in international super markets, which can be easily and readily recognized through computer reading. Such containers should be ordered massively and be distributed to many places where DNA samples would be taken and packed and then safely transported to DNA analyzing center[s]. The entire process must be recorded and acknowledged through a well set procedure including the necessity of signing under relevant provisions in the standard form accurately designed for such purpose.
The use of a seal and cooling is mandatory in the process for the guarantee of safe packing and where the seal is discovered to have been tampered with then the law should provide for the rejection of the samples in question at the DNA analyzing station.
The Commission observed and noted the concern of stakeholders, especially those from the medical profession and agrees with their suggested recommendations on how the DNA samples must be handled to achieve desired good results.
For the purpose of this discussion paper the term ‘transportation’ refers to the means or system of physical conveyance of DNA samples from where they are taken to where they are intended to be analysed.
There were several diverse views from stakeholders on this aspect of the study. One version was that after sampling and packing the containers should be loaded in a van with only two keys of which one should be in the custody of a responsible officer at the source of the samples and the second key be in the custody of a responsible officer at the destination where the DNA analysis will be performed. This proposition was vehemently opposed by several stakeholders for the main reason that such an operation would be devastatingly expensive in view of the huge size of this country with more than 125 districts which would all need to engage such vans for transportation of DNA samples. They further argued that such system would not only be excessively expensive but also highly impracticable in terms of the handling logistics of both ends.
As an alternative to the above discussed system some stakeholders suggested to the effect that the transportation requirement could be circumvented by requiring the clients from whom the samples are to be taken, to travel to where the DNA analyzer is situated. This suggestion was likewise strongly rejected because it would cause a lot of hardships especially to those clients living in remote and extensively distant areas.
Another slightly different system was that DNA samples could be packed in portable safe boxes in which sealed sample containers would be loaded ready for transportation to the desired destination. It was contended that such approach would minimize transport costs. As to who should escort such special sealed kits, it was suggested by one stakeholder that there should be only one chosen and trained, and vetted police official from every station of origin of the DNA samples to escort such safe boxes to the destination. The law should put in place provisions for severe and deterrent punishment against escorters who will breach the ethics concerning such function. The handing over of such samples at respective places should be witnessed and signed by all the parties involved in such transactions.
One doctor further stated on transportation that the system of confidentiality as practiced by big companies could be followed. The specially packed and sealed containers should be accompanied with confidential documents with code numbers as references. With such precautions the said doctor concluded that ordinary public transport could conveniently be used to save unnecessary expenses.
The Commission observes and shares the concern expressed by the stakeholders in the heated discussions on the issues of transportation of DNA samples. As a compromise of the extreme views the Commission agrees with the view of packing and preserving in bar coded sample containers with special identification which shows, among other things, the sources of the DNA samples in question. Otherwise the sealed kits could be placed in shock absorber containers which could ultimately be transported by ordinary public transport.
5.5 Receiving and Custody of Samples
In this regard the concern is who should receive samples at the destination and further who should be responsible for the custody thereof. One stakeholder who is a medical doctor was of the view that the storage of the DNA samples should be entrusted to one responsible official who must keep them strictly under lock and key. In the event of his absence the duty must be handed over to another selected officer with their respective signatures to that effect. Regarding the question as to who should receive the samples at the destination, that is, the place where the samples are to be analysed through DNA technology, one participant said that it should be in a hospital where a technician under the supervision of a doctor or pathologist receives them and signs for their receipt. The stakeholder further opined that in respect of DNA samples a similar system should be followed and thus the law to that effect should be clearly spelt out. In this context the officer incharge of the laboratory should be given the assignment of receiving all the samples. In the event of his/her absence for whatever reasons the duty should be assigned to another senior laboratory officer upon signatures of both parties.
Cementing on the same idea, another participant from the Aga khan Hospital suggested vehemently that upon arrival of the DNA samples at the reception of the laboratory in question, the receptionist should not rush to receive them as is the case with other ordinary items, such as letters or newspapers. Instead he/she should alert the officers concerned, who by law, must rush to the reception to receive the samples should through a duly laid down procedure which must involve the exchange of admitting signatures. After such process the samples be handed over to the responsible officer as described above for appropriate and safe custody and the security system must be expressly stated in the law. It should not be left to be subject to the whims of administrative options.
The Commission notes with high appreciation the suggestions of the professional stakeholders who subscribed such positive ideas on this issue of the study. Consequently the Commission concurs with them and therefore recommends that provisions to that effect must be embodied in the intended law.
5.6 Analysis of Samples
This issue was somehow discussed in the previous comments. In essence it was contributed by the stakeholders that the analysis of samples which is the crux of the process must be conducted by highly qualified persons. However there was some difference in the levels of academic qualifications required. Some pointed out that DNA analysts must be holders of a Masters degree in the relevant field while others contended that even laboratory technicians with certificates or diplomas with additional training on DNA analysis could be assigned the job. They insisted that provisions to that effect be openly laid down in the law for certainty and accountability where necessary.
This Commission views this issue as being highly controversial and thus recommends that such suggestions should be subjected to further research in order to come out with what would be appropriate, taking into account the real circumstances prevailing in Tanzania.
5.7 Dissemination of the Results of the DNA Analysis
The issue here is who should pronounce the results of the DNA analysis and to whom such results should be delivered. Participants again were not unanimous on this matter. Some suggested that the results which must be in writing and duly signed should be declared by the very persons who conducted the DNA analysis and should be communicated to the one who had asked for that task to be conducted.
Other stakeholders argued that this issue should not be handled as easily as stated above. On the contrary they cautioned that the declaration of the results could cause calamitous consequences. For instance they argued, if the contention which drove the process to DNA analysis is to find out who is the biological father of a child born within wedlock, results could reveal that such a person is not the biological father of the child but a third party. Divulgence of such results without taking proper care could erupt into fierce quarrel between the husband and wife of that marriage in order to take care of such dangerous situations some stakeholders advanced a theory of utilizing social and welfare officers who in addition to their ordinary qualifications should be further trained in professional counselling on DNA technology application.
Such officers should be engaged in counselling such civil disputants prior to embarking on DNA testing by deeply cautioning them on the possibility of receiving repulsive results and when still consenting to that test the same social welfare officer should be given the results weather pleasant or disgusting and she/he will determine the manner of disseminating the results to them in circumstances she deems fit.
Regarding dissemination of the analytical results on criminal cases and investigations there was slight divergence. Stakeholders invariably contended that in the public interest such results should be channeled to the party who had requested the said DNA analysis. They specifically mentioned the police and persons dealing with criminal investigations and prosecutions as the ideal recipients of such results.
One dissenting participant proposed a very drastic and conclusive idea to the effect that there should be no difference in dissemination of the analytical results whether on civil or criminal matter. The suggestion was that the system should be uniform and that there should be no entertaining a dual system. The results should be communicated to the one who had asked for that exercise to be conducted in the endeavour to resolve the issue at hand. In so doing it appears the subscriber, knowingly or inadvertently deployed the principle, appearing in a Latin maxim “volenti non fit injuria” when he argued that if a wife or husband is voluntarily engaged in malpractices which DNA analysis would expose him/her to such embarrassing social circumstances one must be ready to bear such eventualities.
The first type was also recommended to be channeled through the courts of law.
The Commission recommends that the DNA results on Civil disputes should be channeled through welfare officers and where necessary through the courts. Regarding the dissemination of the analytical results on Criminal Cases the Commission recommends that such results should be delivered to the police and persons dealing with Criminal investigations.
5.8 Storage of Samples
Generally this aspect of the study did not attract debate by stakeholders. However, one contributor who happens to be a Resident magistrate in Songea put forward a suggestion which surprisingly was not challenged by any other participant. He plainly stated that the storage of samples must be in special containers which must be kept under lock-and-key under the supervision of a vetted officer. There should be two keys for such storage rooms, one at the location of the source of the samples and the other in the office of the Government Chemists’ Laboratory Agency. He emphasized that the custodians of the samples and the keys at both ends must take oaths and be vetted accordingly.
In principle the Commission sees sense in the above suggestion but for want of elaboration it invites more detailed contributions on such a crucial subject. Thus at this juncture the Commission does not come up with a concrete recommendation on this aspect of the study.
5.9 Establishment of DNA Database
It was stated in the field research that a DNA database contains DNA profiles and information that may be used to identify the person from whose forensic material each DNA profile was derived. This being the case, a DNA database is a valuable tool in aiding investigations. An example was given that a DNA database can assist in identifying links between crimes, such as in the case of blood stains left at the scene of the crime by serial offenders. At this juncture, the police will be assisted in the search for matches in the database with DNA profiles obtained from the biological evidence samples.
It was further observed that the proposed DNA database will be a repository of DNA profiles of for example; individuals convicted of specific crimes, children during child birth, patients attending hospital for treatment, individuals during registration as voters or during enrolment in schools or colleges.
On accessibility of any information loaded on the database, it was argued that, a password should be given to few earmarked personnel for their use. However, it was further argued that misuse of this authority would call for a sanction. Also, it shall be an offence where it is proved that an unauthorized person had access to the database. Furthermore, the access of any information from the database pertaining to a person without his/her consent should be a matter to be determined by a court of law.
It was further argued that it should be mandatory for every Tanzanian to have his DNA profile loaded on the database. However, caution was sounded, that the process of DNA profiling should be conducted in stages because the process is costly, and time consuming.
Some stakeholders argued that precedents by visiting other countries should be taken into account before embarking on the establishment of the database.
Others argued further that, for an effective and efficient database system, there is a need to have more than one Genetic Analyser machine in the country, preferably, one in each zone in the country.
It was further revealed by the stakeholders that DNA database in one way or the other will enable the country to have statistical information concerning crimes and researches done. This being the case, the country will be well informed and therefore be able to make use of such information in investigations, researches and in health matters.
Some stakeholders commented that the proper use of the information in the database will be of assistance in employment and insurance matters.
It was suggested by participants that public education on the establishment of database is seemingly important so that the subject is widely known and through this, many people will volunteer to undergo DNA tests for purposes of getting their profiles on the database.
However, there were concerns about the use of DNA technology since the same has the capacity to reveal a lot more personal information. For instance, DNA data may reveal whether a person is at risk of ill health as well as who they are related to. Access to DNA data and samples can give much more information about a person than simply who that person is.
The Commission agrees with the view that there is a need to establish a database for tissue samples, genetic information and personal information of convicted serious criminals including murderers and rapists. The Commission does not agree with the indefinite storage of such information on the DNA database. It is feared that this information could be misused in ways that threaten individual rights as well as those of their families. Further, the Commission does not agree with the expansion of the database to include not only the convicted serious criminals but the whole population, because it is more likely that the threats to privacy rights will increase. In addition to that, in the case of a larger database, the probability of false matches could increase.
5.10.DNA Technology and the Right to Privacy.
Many stakeholders were concerned as to whether and to what extent the proposed legal framework will ensure the protection of the privacy of an individual whose DNA sample information is on the database.
In giving their views, some participants suggested that it should be made mandatory for every Tanzanian to have his/her DNA profile on the database. Arguments advanced in support to that was that the right to privacy is not absolute, it has its limitations. In this case public interest or community safety prevails over this human right issue.
Yet, there were other stakeholders who argued that to make it mandatory for every Tanzanian to have his/her DNA profile loaded on the database is contrary to the right to privacy. It threatens the individual’s right to privacy by the indefinite retention of samples as these could provide unlimited amounts of genetic information about known individuals. There is a concern also that the database on criminal records could be used in future to restrict people’s rights and freedoms, for instance, in making it difficult for such people to obtain employment or Insurance policies.
On the issue of the right to have any information relating to the analysis kept confidential, it was observed to be a right of the person whose sample was taken and disclosure without being authorized should call for a sanction under the proposed law.
It was also suggested that identification of a person from whom the sample is taken should not be disclosed for confidentiality purposes and for avoidance of tempering with samples.
It was further observed by some participants that the proposed legislation should set out certain safeguards for the government, non government organizations and individuals to be observed in the collection, storage, usage and disclosure of personal information relating to the DNA profiles on the database.
Further, it was argued that the proposed law needs to take into consideration an appropriate balance between the rights of the person, who is the source of the DNA sample, and the wider societal interests such as the prevention of disorder and crimes.
There was also another proposal given that access of personal information from the database by the judiciary, medical officers and social workers should be allowed due to the nature of their jobs. However, unauthorized disclosure of such information should call for a sanction under the law.
The Commission is of the view that, the proposed law should take into consideration the balance between the rights of individuals and the interests of society. In line with this only DNA profiles and personal data of persons who have been convicted need to be on the database. DNA samples other than those from the scene of crime should not be retained once an investigation is complete. This recommendation removes the concern that the indefinite retention of samples could provide unlimited amounts of genetic information and samples could be used for other purposes, without the individuals’ consent.
There was also a concern on the importance of counselling to disputants. It was observed by participants that the DNA analysis and the results thereof may to some individual have emotional and psychological implications. These implications will mostly depend on the type of analysis and reasons for it. Following these reasons, it was suggested that individuals be assisted in most cases by being offered counselling services.
The stakeholders further contended that counselling varies depending on the particular analysis involved, hence counselling services may be required both at the time the samples are submitted for testing and at the time the results are available. All these are for the purposes of reducing the number of disputes.
Some participants suggested that trained counsellors, on both health, legal and ethical issues should be deployed in every Ministry, government Department and Agencies. Counselling should therefore be conducted by legal and health professionals and that there is a need for having enough trained counsellors.
On the other hand other stakeholders believed strongly that DNA analysis mostly covers matters of social concern, hence a social worker is the most appropriate person to be trained on counselling and the one to do the counselling.
Other participants had an opposing view that counseliing should be conducted by social workers with the assistance of medical practitioners.
They recommended that in order to minimize disputes such as marriage disputes arising from DNA analysis, there should be established in every region a special counseliing unit. The proposed unit will be better placed if it is established within the office of the Regional Commissioner.
The Commission strongly believes that DNA analysis mostly covers matters of social concern, and in one way or another it has emotional and psychological implications to the concerned parties. Following this, counselling before and after the DNA analysis is of significance to parties in dispute.
Further, the Commission recognizes the need to have enough trained consellors and that there should be established in every region a special counselling unit.
5.12.Consent in Taking Sample for Analysis.
Consent means a voluntary agreement to some act, practice or purpose. Consent can either be given orally or in writing or may be inferred in the prevailing circumstances.
The concept of consent as a fundamental aspect was one of the concern of the stakeholders. The stakeholders argued that, the taking of a sample for analysis can either be done with ones’ consent or without consent depending on the circumstances of the case. While consent should be immaterial in criminal cases, in civil cases consent should be relevant and necessary for the protection of privacy. Taking of a sample should be ordered by a court of law and where consent is needed there should be a prescribed form for the purpose. This form should be filled by the person whose sample is taken for analysis, the police and the person responsible for taking the sample.
On the other hand, participants also were of the view that prior consent is required for the collection of human tissues to be used for research purposes.
Some stakeholders noted that analysis of a sample from a minor or from a mentally ill person should be done with a written consent of both parents or a guardian or in certain situations, a court order. However, it was observed that access to counselling services at this juncture is an important means of minimizing the emotional and psychological impact on the person whose analysis is done.
On parentage disputes, some participants suggested that all parentage disputes should be dealt with by a court of law instead of parties themselves going directly to GCLA.
The Commission concurs with the stakeholders’ arguments on the issue of consent in taking samples for analysis. To this end, the Commission recommends the following:
In criminal cases consent is not material while in civil cases consent should be material and relevant for the protection of privacy. In addition to this there should be a prescribed consent form for the purpose.
Prior consent should be obligatory for the collection of human tissues to be used for research purposes. Moreover, prior consent from parents, guardians or from court should be required before conducting the analysis of a sample from a minor or a mentally ill person.
5.13.Qualifications of Persons Involved in DNA Analysis
There are various categories of persons involved in the DNA analysis, be it for medical, investigation, identification or research purposes. For the purposes of this study we will limit ourselves to the analysts in the GCLA and medical practitioners.
Most of the stakeholders proposed that training is important for all those who would work on genetic information, in consideration of the complexity and implications of the DNA analysis. However, they also noted that the degree of training depends on the context of the analysis.
It was further observed by some participants that, these professionals should also undergo training on the service and maintenance of the Genetic Analyzer so that they become competent in this area as well.
The participants also recommended that the above mentioned professionals should be vetted and be responsible persons of the highest integrity, credibility and professionalism. It was also noted that persons who are responsible for receiving the samples before they are analysed need to be vetted.
In addition to that the majority of stakeholders recommended that the operators of a Genetic Analyzer need to be qualified experts and that their number should be sufficient to cater for other regions and not Dar es Salaam only. This proposal is intended to reduce the congestion that would have occurred at the GCLA and to avoid any contamination that would have occurred during transportation from other regions to the GCLA
It was specifically recommended that in the medical profession the person who qualifies to direct the taking of samples has to be a senior medical practitioner.
On the analysis issue, the participants recommended that a qualified senior biotechnologist or a biochemist should be the one to do the analysis. Some stakeholders suggested that these professionals should undergo legal training in addition to their own specialized training.
The proposed law should specifically define each professional qualification.
The Commission recommends that the various category of persons involved in DNA analysis need to be adequately trained and that they should be vetted senior officers with the highest integrity, credibility and professionalism. There should also be training on the service and maintenance of the Genetic Analyzer.
5.14.Establishment of a Board or Committee
In the field research it was advised that those who are dealing with DNA technology should be made accountable to the public by establishing an independent Board or Committee under the Ministry responsible for health. One stakeholder came up with a recommendation that, among other things, the proposed law should provide for the establishment of a Board or a Committee which would be empowered to conduct all relevant functions on this subject.
The composition of such body of experts should emanate from the Ministry responsible for Health and Social Welfare, Agriculture, Livestock, Justice and Constitutional Affairs, subject to their respective relevancies.
The Commission concurs with the idea of having a Board or a Committee whose functions should include accreditation of DNA testing laboratory, Management of Database and any other matter connected and incidental thereto.
CONCLUSION AND RECOMMENDATIONS
The advent of DNA technology has brought about beneficial contribution to the modern scientific development in the world. The technology has led to formidable advances in medicine and genetic biology, thus improving discoveries of scientific issues such as medical, pharmaceuticals and agriculture. The technology has also become an effective tool in legal systems for obtaining reliable scientific evidence in both criminal and civil cases.
However, despite the positive side of the technology, there is a concern with regard to aspects of privacy because genetic database and information may be accessed by different people for many different purposes. Such information if misused can negatively affect a person’s life. In that regard, various countries such as the USA, Australia and the UK to mention just a few, have taken different steps including enacting pieces of legislation to curb the negative impact of the application of DNA technology.
With regard to Tanzanian circumstances, this study has found that;
Ø The pace of using DNA technology for various purposes is increasing;
Ø Despite such increase in the use of DNA technology, there is no legislation providing for general administration of the application of the DNA technology; and
Ø Such lacuna is likely to cause a lot of negative impact resulting from mishandling or misuse of the technology.
The Commission finds that this is a very sensitive area of concern and therefore, need for legislative intervention.
In view of the above findings, the Commission recommends as follows:
A. Legal Recommendations
1. There is a need to enact a law to regulate and control the application of DNA technology in Tanzania. This law should be known as the DNA Technology Management Act.
2. The said law should require all personnel dealing with DNA collection, transportation, analysis and dissemination of DNA test results to be vetted.
3. The law should require sampling to be done by properly trained personnel, preferably medical personnel and laboratory technicians competent on DNA technology.
4. The law should provide for establishment and management of a national database to contain genetic information of persons convicted of serious crimes such as murder and rape.
5. The proposed law should provide that DNA samples (except samples from the scene of a crime) should not be retained once an investigation is complete. Only DNA profiles and personal data need to be on the database to find a ‘match’ for criminal investigation. Research uses of the database itself (profiles and personal data) should be restricted to producing ‘quality control’ statistics on the type of data that has been added and how the data is being used.
6. The law should make it an offence for any person who takes and submits another person’s sample for genetic testing, or conducting such testing, without the consent of such persons or lawful authority.
7. The law should provide for minimum standards for collection, use, storage, destruction and index matching of forensic material and the DNA profiles created from such materials.
8. In civil cases consent should be material, unless the court directs otherwise.
9. Prior consent should be obligatory for the collection of human tissue to be used for research purposes. Moreover, prior consent from parents or guardian or from court should be required before taking and analyzing a sample from a minor or a mentally ill person.
10. The taking of samples from volunteers should only be conducted in pursuance to the law. Volunteers should be defined as persons from whom samples are taken who are not criminal suspects or convicted offenders. Further, they should be informed about the purpose and use for which the sample is taken and they should be given opportunities to consult legal practitioners before agreeing to provide samples. For it to be an informed consent, volunteers should also be informed that they are under no obligation to provide samples.
11. The Commission recommends that volunteers be permitted to withdraw their consent to the retention of their profile on the national database.
12. An Independent Body should be established to review all future application to access the data and samples for forensic and non forensic purposes to ensure standards are maintained and to ensure that there is public accountability and transparency.
13. The Body should regulate and control the laboratories which perform DNA analysis. Furthermore such Body should be mandated to provide for high level of technical and strategic advice to the government, about current and emerging issues in human genetics, as well as providing a consultative mechanism for the development of policy statements and national guidelines in this area.
14. Provisions of the Evidence Act, the Criminal Procedure Act and the
Inquest Act should be accordingly amended to include DNA evidence.
15. In the event of a person being unidentified due to serious injury or death, a person who believes to be related to the deceased should be allowed to make an application to the court seeking DNA testing from such an injured or deceased person for the purpose of identification.
16. Any legislation providing for the analysis of DNA samples for comparison with biological samples left at the scene of a crime should exclude testing which might reveal information about genetic disorders, personality and behavioral traits and predispositions.
17. In particular situations such as court ordered analysis consent should not be required. In such cases the subject should be informed that taking samples is legally required and that failure to cooperate in the process should be an offence.
18. A person convicted of an offence, who is in prison may be subjected to DNA sampling without his/her consent nor should it be mandatory to inform him/her that the taking of the sample was required to prove or disprove his/her involvement in the offence
19. The Commission recommends that a convicted offender’s profile not withstanding his/her acquittal on appeal be retained indefinitely on a national database, in the public interest.
20. The Commission recommends that biological samples found at the scene a crime should be retained principally as a safeguard in the event that an individual convicted of the offence wishes to challenge the veracity of the original evidence.
B. Non-Legal Recommendations
21. The Government should ensure that agencies dealing with DNA analysis are well equipped and their services are easily accessible.
22. The Government should ensure that more personnel are trained as technicians of Genetic Analyzers so as to avoid scarcity of technicians to operate the same. Where need be, the said technicians will cater for other stations. This will also reduce the congestion that would have occurred at the GCLA and to avoid contamination that would have occurred during transportation from regions to GCLA.
23. Various categories of persons involved in DNA analysis need to be adequately trained. Therefore the Government should provide for the training of senior officers with the highest integrity, credibility and professionalism who will properly handle or administer the use of DNA technology. Due to sensitivity and complexity of this technical field the said officers should be vetted. Similarly in view of exorbitant costs of the genetic analyzer the personnel to maintain, repair and upkeep such machinery must be accorded intensive training and awareness of their responsibilities.
24. The Government should prepare programs for public education so that people are informed and educated on the need for DNA technology, its advantages and disadvantages to enable smooth administration of the proposed law.
Australian Law Reform Commission on the protection of Human Genetic information in Australia 2003 Vol. I
Australian Law Reform Commission on the protection of Human Genetic information in Australia 2003. Vol. 2
Report on the establishment of DNA data base the Law Reform Commission of Ireland.
The African of Wednesday, 21/06/2006.
Gold Berg I, Genetic information Privacy and discrimination, Health care Manager 2001.
A Report by Gene Watch UK, the Police National DNA Database; Balancing crime Detection, Human Rights and Privacy.
 Cap.171 R.E. 2002
 Ibid., section 4.
 Australian Law Reform Commission, The Protection of Human Genetic Information in Australia 2003, Vol 1 p.323.
 Report on the establishment of DNA database The Law Reform of Ireland.
http://www.nddb-bndg/main-e,htm accessed on 27/07/2005.
 Forensic Science is a branch of science connected with legal investigation. It is useful in solving both criminal and civil cases such as homicide, rape and parentage cases.
 http://www.swiptpapers.com/assays accessed on 27/06/2006.
 Genome means the total genetic information present in a somatic cell and unique to any specific organism (webster’s New World College Dictionary)
 Gene watch UK January, 2005.p.24.
 Cloning is the process for duplicating biological material.
Human cloning is the creation of a genetically identical copy of an existing, or previously existing human or growing cloned tissue from that individual. The term is generally used to refer to artificial human cloning; human clones in the form of identical twins are commonplace, with their cloning occurring during the natural process of reproduction. There are three type of cloning technologies namely (1) recombinant DNA technology or DNA cloning, (2) reproductive cloning and (3) therapeutic cloning.
 Human cloning. Wikipedia, the free Encyclopedia.
 Includes murder and manslaughter.
 Human Genome Project Information: doegenomes.org
 Case study in forensic science dealing with DNA testing for death row inmates
 The African, Wednesday,21/06/2006 page 5.
Saving whales with DNA.htm.
 Human genome project information.
 House of Lords Select Committee on Science and Technology Human Genetic Databases: Challenges and Opportunities (HL Paper 57 20 March 2001) at paragraph 3.3. (is also quoted in the Irish Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 p.38
 Gene watch UK Jan.2005. pg. 24.
Australia Law Reform commission on the protection of Human genetic information
 Gene watch Jan.2005 pg 44
 Cap 16.R.E 2002
 Cap 20.R.E 2002
 Cap 6.R.E.2002
 Cap 24.R.E.2002
 Cap 20.
 Part II (e).
 The Criminal Procedure Act, Cap 20, Section 59.
 Ibid., section 59(2).
 TLR 148.
 CPA., section 63(1).
 Ibid., section 63(2).
 Ibid., section 63(3&4).
 Cap 24. R.E.2002.R.E 2002
Ibid., section 10.
 Ibid., section 19(1).
 Ibid., section 59(4).
  E.A.362
  TLR.246
 Ibid., section 240(1).
 Ibid., section 47.
 Cap 278.
 Ibid., section 5(2).
 Cap 59.
 Cap 48.
 Cap 152.
 Cap 86.
 Cap 96.
 Cap 325.
 Act No.4 of 2004.
 Section 81-90.
 Gold Berg I., Genetic Information Privacy and Discrimination. health care Manager 2001; 20:19-28
 http://www.mja.com.au./public/issues/178 11 020603 2/12006
 Privacy Act 1988.
MV-Bukoba was a legendary passengers’ ship which was operating in lake Victoria between Bukoba town and Mwanza. On 21st day of May 1996 while sailing from Bukoba to Mwanza it sank few kilometers from Mwanza port, more than 500 people died.
 Vol 1 and 2 of the Report by Australia Law Reform Commission on the Protection of Human Genetic Information in Australia 2003.
 Ibid p.33 .
 pg.33 of Vol.1 ALRC Report.
 Ibid p. 35 - 36
 Ibid., p. 1113
 Ibid p. 1004
 Ibid p 1113
 Op ci.t
 Ibid p 1113
 The Police National DNA Database; Balancing Crime Detection, Human Rights and Privacy. A Report for Genewatch Uk by Kristina Staley January 2005 p. 18
 Ibid p. 46
 Ibid p. 46
 Ibid., p. 28
 a felony is a serious crime for which the punishment is prison for more than a year.
 Ibid., p. 28
The Police National DNA Database; Balancing Crime Detection, Human Rights and Privacy. A Report for Genewatch Uk by Kristina Staley January 2005 p. 28
 (1994), 3 S.C.R 145
 (1997) 1.S.C.R 607
 of 1997 as revised on 22nd day of May 1998.
 Websters New World College Dictionary New Millennium, Fourth Edition, p.1268.