Introduction Since the Lagos State Government established a DNA and Forensic Centre in 2017, other States (notably, Ekiti) are reportedly either understudying the Scheme or have already done so – though I’m not quite sure about the latter. This is a positive development, of course, as the benefits of the technology, particularly in apprehending criminals, are all-too-obvious. What is not so clear is the legal framework underpinning DNA technology in Nigeria. At the risk of sounding presumptuous, I believe that there is something of a legal lacuna in this regard, which those States, which have mooted the idea, seem to have lost sight of. This intervention intends to spark a conversation around the subject, by posing the question whether any law in Nigeria regulates the establishment of DNA Centers like those of Lagos and Ekiti (in view). Do State Governments possess the legal capacity to establish DNA and similar forensic laboratories? If no law authorizes Lagos et al States to do so, what is the status of any report(s) produced by those facilities, either as evidence or otherwise? Profound questions, indeed. Let us attempt some answers. First of all . . . What Is DNA Profiling? This is the most fundamental question of all, of course, for the purposes of this discourse. For its answer, I hope I’ll be forgiven if I borrow the words of “The Advocate” (ThisdayLawyer Editor, Mrs. Onikepo Braithwaite) in the penultimate edition of the magazine, where she quotes an unattributed source as defining DNA as “a complex molecule that contains all the information necessary to build and maintain an organism”. Additional insight is provided by B.R. Sharma at pages 1123 and 1127 of his book, “Forensic Science in Criminal Investigations and Trials”, where he opined that: “DNA is the basic genetic material in all the living cells of the body; its structure determines a person’s character, behaviour, and body features; because DNA varies from person to person, each individual is unique; it can be extracted from a variety of materials, including blood, semen, hair, fingernails, saliva, body tissues, body organs, bone narrow, urine, faecal matter, tooth canal root pulp, post mortem samples, etc.” DNA Profiling, Forensic Science and Forensic Evidence – any Correlation? There is no doubt that DNA is an aspect of forensic science. The latter is the application of a broad spectrum of sciences to answer questions of interest to a legal system. It analyzes facts and materials scientifically to produce essential information or evidence to help determine the truth of a matter; it is the scientific method of gathering and examining information about the past, or more precisely, the application of scientific knowledge to legal matters. A related field is forensic evidence. This is defined in Black’s Law Dictionary (9th ed., page 637), as “evidence used in court, arrived at by scientific or technical means such as ballistics and medical evidence; it is evidence generated through the use of science to prove or disprove facts, such as, inter alia, from blood-stains, saliva, bones, teeth, hair, semen, fingerprints, finger-clippings, post mortem samples, etc”. What Is the Legal Status of DNA Profiling and Forensic Evidence In Nigeria? The overarching answer to this all-important question is provided by the 1999 Constitution. It confers on the National Assembly, vide Section 4(3) and Items 23 and 28 of its Exclusive Legislative List, the exclusive power to regulate “Evidence” and “Fingerprints, identification and criminal records”, respectively. By virtue of Item 68 of that List, this power extends to matters that are “incidental or supplementary to any matter mentioned in (the) List”. In his seminal work, “Federalism in Nigeria under the Presidential Constitution” (2nd edition, at page 43), Professor Ben Nwabueze, SAN, defined an “incidental and supplementary” matter, in the context of the foregoing provision, as “one which is concomitant or attendant upon another, something which is an accompaniment or adjunct of another. The relation between the two is of one ancilliary to a main matter; both must be closely connected to justify the inference that implying one is an incident the other”. Accordingly, to the extent that the Constitution has specifically provided for the power to regulate “Identification”, the next question is whether DNA analysis is a form of identification. The answer is obviously ‘Yes’, of course, as that is the whole essence of the field. Indeed, the definition of the verb “identify” (in Black’s Law Dictionary, 8th ed., page 761), puts it beyond peradventure: it simply means “to prove the identity of (a person or thing)”. This necessarily leads to the question of the statutory authority for the establishment by a State Government of any facility for determining the identity of a person for any purposes – be it criminal or civil (paternity) proceedings. While this poser might come across as playing something of the Devil’s Advocate, far from it, however, it is a function of the critical thinking which is (or ought to be) the hallmark of an advocate. After all, virtually everyone is now familiar with the principle of constitutional supremacy. In the context of this piece, in THE HON. MIN. OF JUSTICE & ATT-GEN. OF THE FED. vs. ATT-GEN. OF LAGOS STATE (2013) All FWLR pt. 704 pg. 1 @ 41D., the apex court held that: “the power of the State Government to legislate on a given matter must be traceable to the body of the Constitution, either in the Exclusive Legislative List or the Concurrent Legislative List or Residual List and any matter outside the ambit of the said constitutional provisions is null and void”. The foregoing shows clearly that, laudable as the DNA and Forensic Centers established by Lagos and other States undoubtedly are, the absence of the requisite constitutional authority to do so simply means that they are operating in – at the very least – a legal black-hole. It is obvious that this situation is neither satisfactory nor wholesome, as the absence of the proper legal framework, anchored on the Constitution, is fraught with risks. Recommendations The notorious ‘Nigerian factor’ surely suggests that it is only a matter of time before DNA Profiling becomes an all-comers affair. This postulation is not far-fetched, as, without suitable regulation, DNA results could conceivably be manipulated and compromised, with the right inducement to those administering them. This view might fly in the face of the conventional (or received) wisdom that DNA tests are fool-proof. However, at the risk of sounding needlessly alarmist, I beg to differ. In this era of photo-shopped and digitally altered audio and visual images, what is impossible? Lest we forget, even the identity of the President of an entire country was recently the subject of unremitting scrutiny, with widespread rumors (not altogether unfounded), that a certain ‘Jibrin’ was actually masquerading as the real McCoy. . . But, seriously, what is the ACTUAL guaranty that the results of the DNA test in any given case, are tamper-proof? In my view, none. This is because of the human element involved, as previously alluded to. A chain, it is said, is only as strong as its weakest link. Accordingly, I believe that, beyond the presumed professional integrity of those administering DNA tests, appropriate sanctions ought to be prescribed by legislation for negligent misstatements or outright fraud in the administration and generation DNA tests and their results, respectively. To the best of my knowledge, no such specific sanctions currently exist. Thus, apart from the general provision of the Criminal/Penal Codes, we are left at the mercy of a few geeks who are supposedly experts in the nascent technology. Accordingly, a Code of Conduct for the field is clearly an urgent policy imperative. Such regulations should include provisions for a mandatory confirmatory test in, at least, a separate, independent DNA Center, which is unaffiliated to the one which conducted the initial test. In addition, minimum standards of professional and practical, hands-on expertise and cognate experience should be prescribed for all levels professional and technical staff who are involved in such tests. The foregoing cannot be over-emphasized, as experience has shown that, regardless of the seemingly established science that no two human beings have the same fingerprints, identical twins with the same fingerprints do, in fact, exist. Conclusion It is trite law that illegally-procured evidence is always admissible in a court of law, the overriding consideration being its relevance. While this principle suggests that, for practical purposes, the argument about the constitutional incapacity of State Governments to establish DNA Labs, is inconsequential, the primacy of the rule of law demands that the National Assembly fulfils its constitutional mandate by taking urgent steps to enact the appropriate legal framework to regulate the field. At the very least, the Assembly should delegate that function to a member of the Federal Executive – such as the Minister of Justice or Police Affairs (or the Interior, under the present dispensation) – in much the same way that the Assembly did so in favour of the Minister of Petroleum Resources, pursuant to which the latter made a raft of Regulations in the petroleum sector. Conferring that function on a State functionary, in the circumstances, would be unconstitutional: ATT-GEN. OF OGUN STATE vs. ATT-GEN OF THE FED. (1982) Abubakar D.Sani, Esq., Kano]]>
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