Last month, I attended a meeting organised by the School of Law of the University of Rwanda. Specifically, this meeting focused on how the School of Law can strengthen partnership with key stakeholders who oftentimes absorb law graduates in various capacities.
Among various presentations made, there’s one that caught my attention most, one by Pie Habimana, a lecturer in the School of Law, titled “Evidence to establish paternity for illegitimate children under Rwandan law”.
I was particularly impressed by his well-researched presentation which covered Rwanda’s legal and judicial perspectives as well as foreign doctrines and practices in regard to the determination of paternity for illegitimate children, or idiomatically known as ‘born on the wrong side of the blanket’.
The presentation dwelt much on a matrix of circumstances provided by law upon which paternity can be determined, but which may not stand alone to conclusively establish the status of children born out of wedlock.
From a legal perspective, the presumption of paternity relies squarely on such circumstances: “when the mother has been kidnapped, sequestrated or raped; delusive promise of marriage or abuse of authority; cohabitation without marriage contract; parentage confession; and caring and educating the child as his own”.
Nevertheless, these circumstances cannot be taken for granted to be incontrovertible evidence.
Admittedly, law is silent on other forms of evidence, impliedly it doesn’t rule out use of DNA evidence for example. Also, the presenter highlighted the importance of forensic DNA testing in determining the case of paternity though the existing law doesn’t mention it.
At this point, DNA testing is a merely standard practice (obviously vitally important) rather than a normative rule. In Rwanda, forensic DNA testing is axiomatically acceptable.
However, due to the fact that it’s not expressly provided for by law, a judge is under no obligation to consider the DNA evidence. That said, a judge here enjoys the margin of appreciation or assessment. Broadly speaking, it refers to the room for manoeuvre.
So, what weight should forensic DNA testing have in this era of technology, especially in determining relevant cases? Today, no one can ignore the importance of using DNA technology as it doesn’t only apply in paternity-maternity-related cases, but also applies in rape and other sex-related cases.
Indeed, no one can be contemptuous of its objective, of administering justice for all. In our criminal justice systems, some rape crimes are often difficult to prosecute because identification of the perpetrator can be impossible.
DNA evidence is one of the most effective tools available in modern law enforcement. For both violent and property crimes, DNA technology is often the critical factor in prosecuting the guilty and exonerating the innocent.
It is interesting to note that, today, the National Forensic Laboratory is under construction. Now, there’s hope that before end of next year this laboratory will be operational.
Once it’s completed, it will be another major landmark adjunct to other ICT-related developments, such cashless economy (e.g. e-payment and e-money transfer), digital/electronic signature, the Integrated Electronic Case Management System (IECMS), e-procurement to mention but a few.
Financially, resources that would be used to carry DNA samples to be tested abroad will be saved for developmental projects. Of course, sending DNA samples abroad for testing is ludicrously expensive, but, in the meantime, no option whatsoever. Who knows whether Rwanda will not become a hub for forensic DNA testing in the region?
Having seen that forensic DNA testing or DNA evidence is not expressly envisaged in the Rwandan law, it is quite important to recommend relevant agencies that are currently reviewing a number of laws to accommodate it and plug the hole.
Once this is done, it will no longer be a mere practice, but rather a mandatory requirement. In so doing, DNA evidence would have more weight than circumstantial scenarios articulated above. Martin Heidegger once described society as a moving stream rather than a stagnant pond. Thus, modern technology requires us to make a paradigm shift just to ensure justice for all.
Again a question can be raised: should DNA evidence be sufficient requirement to convict a suspect, especially in criminal cases? In other words, can it be proof ‘beyond a reasonable doubt’?
In most countries, DNA evidence is considered as an invaluable tool in establishing the truth about paternity-or-maternity-related cases, or assessing guilt in rape cases.
There can, however, be probability of contaminating or compromising the integrity of DNA samples. To say that DNA evidence is per se incontrovertible or dispositive of the case would be quite controversial a decision.
As a matter of principle, a court examines a variety of evidence from both sides (prosecution and defence) and will decide which evidence they believe to be accurate and then base their decision of guilt or innocence on that version of facts. But again, positive DNA evidence matching the defendant to the crime of rape will be more persuasive to a court.
Nonetheless, DNA evidence remains the most accurate identifying evidence available to date, and technological advances has DNA evidence practically foolproof. To sum up, the importance of DNA testing can be understood from research, medical and judicial perspectives.
The writer is an international expert.