FINGERPRINTS RELIEF FOR EX-CONVICTS

MBABANE – Abolished!

If a prospective employer or any academic establishment calls upon you to produce fingerprints in consideration for employment or education, you may choose to tell them: “what you ask for is a criminal offence and you will be arrested.” It is stated in the Criminal Procedure and Evidence (CPE) Amendment Act of 2018 that any person who contravenes the provision on the abolition of fingerprints in consideration of one’s employment and education is liable to a jail term not exceeding three years or to a fine not surpassing E10 000, or both. Several organisations like companies, security forces and firms, some financial institutions, educational establishments demand that job seekers and prospective students alike produce their previous criminal record. The Royal Eswatini Police Service usually released such records as there was no law barring them from doing so.

CRIMINAL DATA SYSTEM

Before the passing of the CPE amendment Act of 2018, Mxolisi Dlamini, in April this year, went to the High Court to pray that the national commissioner of police expunge his fingerprints from the police criminal data system. He had been convicted of drink- driving nine years ago. He contended that the fingerprints were a stumbling block to his future as the Civil Service Commission might revoke his appointment as a prosecutor because of the previous conviction record. Judge John Magagula issued the order, directing the national commissioner to do so. In a similar case, a final year student at Ngwane Teachers College successfully obtained an order directing the national commissioner of police to expunge his fingerprints from the criminal data system.
Attorney General (AG) Sifiso Khumalo, in an interview, said the new law meant people did not even need to go to court to have their fingerprints expunged in order to secure employment or facilitate enrolment at a college.

He said employers and academic institutions should not require them altogether. He said the new legislation was effective and applicable. He said the request for fingerprints to determine the employment or enrolment of a person in an academic institution should be a thing of the past. Asked to simplify it, the AG, also known as Indvuna Mashampu of Ezulwini, explained that the law stipulated in Section 287 (1) that a record of a previous conviction of an adult shall be valid for the period of the length of the sentence imposed by the courts as outlined in the sixth schedule of the CPE. In terms of the law, sixth schedule refers to the validity of record of previous convictions as follows:

l    One month sentence to one year – valid for one year
l    Two years – valid for three years
l    Three years – four years
l    Four years – five years
l    Five years – six years
l    Six years – seven years
l    Seven years – eight years
l    Eight years – nine years
l    Nine years and above – valid for 10 years.

However, Khumalo said there was an exception to sixth schedule as subsection three clarified that “the validity of a previous conviction of an adult shall not apply for purposes of education and employment.”  The AG said the law was clear that employers would be in order or operating within the ambit of the law when employing people with criminal records. He hinted on the possibility of the security forces employing them as well. “One’s previous criminal record must not be a barrier to education and employment,” stressed the attorney general when quoting the CPE amendment Act.  He added: “In terms of education and employment, you don’t need a court order to have your fingerprints erased as they don’t apply to you.”
Khumalo mentioned that the new legislation did not do away with previous criminal records but protected the right to education and employment.  He said a record of past convictions, as elucidated in law, could be obtained, accessed or used for purposes of crime detection, investigation of an offence or prosecution.

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