Let’s curb the misuse of DNA evidence before it is too late

Last week, the media was awash with the sensational news that a cosmetics tycoon, Michael Kaswuli aka Samona, had ordered for DNA tests of his 25 children and was inconsolably shocked to discover that only fifteen were actually his biological children. 

The popular baby jelly marketer reportedly has more than a handful of wives and nubile lovers, but he has of late been estranged from some of them, including his first wife, Rosemary Nantume, with whom they have locked horns over a billion shillings mansion in Mpigi, among other assets the couple has jointly amassed since 1988.

Among the ten unfortunate cases are reportedly two of Nantume’s seven children: a 24-year-old man who has completed university, and her last born, a 13-year-old girl.

Samona is reportedly still committed to taking care of ‘all his 25 children, despite the DNA results.’ But he is hell-bent on pursuing his vendetta against their problematic mothers.

Whereas Samona’s overzealous quest for truth by DNA has been applauded by the morality police and #FearWomen trolls on social media, it is important to inform the public that such crusades are potentially illegal, and may cause permanent damage to families and public order.

A NATIONAL WARNING

Using DNA evidence as a sword to exclude children from a given household, as opposed to a shield for protecting their inclusion, threatens the sanctity of the family unit as the bedrock of society. An expansive approach to family relations promotes social cohesion, peace and stability.

Family bonds, whether biological or not, are therefore entitled to jealous constitutional protection by society and the State against potentially disruptive technologies like DNA testing.

As long as our disputes are still resolved in a foreign language, based on notions ‘family law’ and ‘private property’ derived from a foreign jurisprudence, the additional harm posed by DNA testing to indigenous communities is simply unacceptable.

The everywhereness of DNA testing in today’s Uganda is a threat to our cultural understanding of ‘the family’ which, if unchecked, may spark off widespread conflict, insecurity and violence.

LEGAL BASIS

From a legal and ethical perspective, Samona’s conduct raises a fundamental question; whether the baby jelly tycoon unfairly used DNA tests as a weapon to tame or take revenge on his estranged wives and livers.

It is unclear whether free, Prior and Informed Consent (FPIC) was obtained from the adult children in Samona's household or parents of the affected minors. However, such consent alone is not enough. In fact, even a judicial order purportedly approving a DNA test would be illegitimate if it contravenes the Constitution and the law.

According to Section 7 of Uganda’s Data Protection and Privacy Act 2019, personal data may, with the consent of the data subject, be collected or processed but only for medical purposes, national security, law enforcement and other specific purposes prescribed by law.

Section 35 provides that a person who unlawfully obtains, discloses or procures the disclosure to another person of personal data held or processed by a data collector, data controller or data processor commits an offence. The penalty upon conviction is a fine not less than Shs 5m or imprisonment not exceeding ten years or both.

Clearly, Samona and each laboratory that helped him carry out these obnoxious DNA tests, as well as the media outlets that have amplified this fiasco, may have violated the Data Protection and Privacy Act.

INDIGENIZATION BEST PRACTICE

The High Court of Tanzania at Mtwara, in Muhibu Sefu Mohamed vs Hawa Hemed Malivata (2022), resoundingly denounced the misguided judicial policy of exaggerating the importance of DNA testing, particularly with regard to the resolution of parentage and succession disputes in Africa.

In the course of hearing an application for letters of administration, a lower court had enthusiastically approved DNA testing to determine the issue whether some two minors could belatedly be included in the list of heirs.

The high court set aside the lower court’s pro-DNA decision and held that in civil cases DNA should be used ‘sparingly’ and should in fact be ‘resisted’ by giving primacy to other less intrusive forms of evidence that are traditionally accepted. This is because ‘DNA test results usually come with unintended consequences that may fuel enmity in the community.’

The court explained that ordering a person to be tested violates fundamental human rights related to the use of human generic data. Our courts should take a leaf from this judgment and stop recklessly issuing orders for DNA testing.

PRIVACY CONCERNS

When DNA tests are conducted without proper consent (FPIC) or following established legal procedures, it infringes upon an individual’s right to be left alone. DNA testing is akin to a perpetual strip-search whereby one’s innermost private information, unless destroyed, remains open forever.

It leaves you feeling permanently dirty and humiliated, with your whole being absolutely invaded and dehumanized. DNA testing exposes one’s entire family, including those yet to be born, to an unimaginable risk of violation of their genetic privacy.

DNA evidence can have far-reaching negative consequences on established family relations. Accordingly, the fact that DNA tests are routinely touted as the panacea for all domestic disputes in Uganda today raises significant privacy concerns.

Mushrooming DNA testing centres and enthusiastically pro-DNA courts undermine the legitimacy and ethical use of DNA evidence. DNA testing results that challenge established parent-child relationships can have severe emotional and mental health consequences.

In Samona’s situation, the scandalous revelation that ten of his children were not biologically related to him highlights the potential strain and emotional distress such discoveries can place on family relationships.

Moreover, the reliance on DNA evidence alone may overlook the complexities of emotional bonds and psychological implications for all parties involved in a family dispute.

SUCCESSION DISPUTES

Probate and intestate succession disputes are generally sibling rivalries or co-wife conflicts over the property of the deceased.

Interpreting wills, trusts and other estate planning documents, and determining the rights of surviving spouses and children are the most crucial aspects of these disputes. They typically require fair accommodation of the parties’ diverse personal histories, intricate cultural nuances, and myriad emotions.

DNA evidence, with its peculiar focus on biological relationships, is often alienating and thus inappropriate for resolving the complexities of family life. Yet DNA testing is now casually dispensed by our private hospitals to every Tom, Dick, and Harry.

FALSE POSITIVE, FALSE NEGATIVE

Despite its much vaunted reliability, DNA evidence is not infallible. False positives (matching DNA profiles when there is no biological relationship) and false negatives (failing to detect a biological relationship) can occur due to various factors, including sample quality, laboratory errors, or the presence of rare genetic mutations.

These errors can compromise the accuracy of DNA results, leading to inaccurate conclusions about biological relationships and inheritance rights, among other wrongful determinations based on flawed DNA evidence.

Interpreting DNA evidence requires specialized knowledge and expertise. Complex statistical analysis, population genetics, and understanding of DNA profiles are necessary to accurately interpret results. In practice, interpreting DNA evidence should be subject to fair challenges, especially in Uganda were quality assurance is hardly enforced.

CRIMINAL CASES

Similarly, in criminal cases, DNA evidence is not foolproof. It is highly sensitive, and even minor contamination or mishandling can compromise its integrity.

Proper chain of custody procedures must be followed to ensure the reliability and admissibility of DNA evidence. Failure to adhere to these protocols can raise doubts about the accuracy of the results, potentially jeopardizing the fairness of criminal trials.

Incorrect interpretations or miscommunications of the evidence can lead to wrongful convictions or acquittals, thereby increasing the risk of miscarriages of justice and undermining the reliability and credibility of the criminal justice system.

CONCLUSION

DNA evidence has revolutionized legal proceedings, providing powerful tools for establishing biological relationships, settling disputes, and determining guilt or innocence in criminal cases.

However recent incidents, such as Samona’s capricious use of DNA tests to settle an old score with his harem of desperate housewives and girlfriends, shed light on the widespread abuse and misuse of DNA evidence despite the limitations, pitfalls and potential disadvantages associated with relying predominantly on DNA evidence to make life-changing decisions affecting innocent or vulnerable ‘data subjects’.

The unwarranted use of DNA tests, as demonstrated in Samona’s case of shameless chest-thumping, is a national scandal to which the responsible authorities must be alerted before it is too late.

The author is the CEO of Legal Brains Trust, a Kampala-based democracy and human rights watchdog.