Legal Issues Involved in Exhumation

Currently, the type of forensic education in the country is based on the study of the cause of death and method of death on fresh cadavers with well-preserved soft tissues, detection of pathogenesis, biomarkers of sexual violence, poisoning and skin lesions. In case of poisoning, medical students learn to examine the endocardial mucosa of the left ventricle and document the presence or absence of petechism or significant bleeding, examine the entire stomach, especially the appearance of its internal surfaces, as well as the intestines and urine that the bladder may contain. In the case of physiognomic skin lesions, they focus on examining the type of wounds and wounds, whether open or closed, skin scratches, bruises, cracks, and examining the type of object affected, whether sharp, blunt or projectile. In cases of sexual violence, they look for clues that could link the suspect to the victim. There is certainly nothing that teaches doctors and other doctors how to use the Pythagorean formula to build trenches, photograph corpses at the crime scene, use a trowel to dig, use wire mesh when examining sediments, and float in the search for evidence during forensic exhumation. There is no topic or module related to the identification of human remains or short-term certification that teaches physicians and other physicians how to collect ante-mortem information and compare it to post-mortem data to achieve positive identification in the face of a challenge requiring human identification techniques. There are no sections in medico`s current legal program where they learn how to fingerprint cadavers, determine biological profiling from skeletal remains, take DNA samples from skeletal or tooth remains, or use dental records to help with the identification process. There is no other on-the-job training that instructs physicians on how to apply various forensic techniques to disaster management. There is therefore room for improvement, at least by including in the medical curriculum a course on the topic of « Forensic exhumation and human identification ». Such course extensions are important to address skills shortages in forensic science, particularly in forensic medicine and osteology (see Fig.

3, Fig. 4). A recent case of exhumation reported in this article occurred in December 2021 in Bumbuli, Lushoto District, Tanga Region of Tanzania. The exhumation was ordered after an illegal search of the grave of a person with albinism by ill-intentioned persons. It should be noted that in many places in Africa, albino cemeteries are mostly vandalized by people who believe that possessing such bones will help them gain more wealth and get into politics or recover from chronic diseases [[25], [26], [27]]. The criminals who looted the grave of an albino cut off part of the right limb, the shin. After a thorough police investigation, the criminals were arrested (red-handed) and sold a human shin. To provide evidence beyond doubt in court, the bones found triggered an exhumation order ordering a doctor to take DNA samples for comparative work and reference identification. Unfortunately, the excavation was negligent and damaged the body. After completing the exhumation, a doctor took a DNA sample by sawing off a piece of bone from the medial condylae of the femur, which became the « A » sample of the recovered corpse. Additional samples were taken from the proximal end of the tibia, recovered from criminals who became the « B » sample for reference.

In addition, the doctor placed the samples in two separate containers, preserved them with formalin and sent them to the government`s chief chemist`s laboratory in Dar es Salaam. Efforts to preserve the samples in formalin have actually destroyed most of the DNA evidence needed for identification. No pun intended, the physician unknowingly destroyed the DNA evidence (base modification and cross-linking between DNA and proteins) [22,28]. As a result, the samples could not be used for genetic testing, and exhumation and sampling had to be repeated after two weeks. This is an example of the many challenges posed by the implementation of the Criminal Investigations Act 1980 in the Community. There are many examples of Tanzanian doctors who have failed to take DNA samples from skeletal remains. Others fail to fingerprint corpses when they are swollen and in the decomposing phase, and sometimes fail to create proper excavation protocols for exhumation. These physicians cannot be held responsible for not properly collecting forensic evidence because they have not received appropriate training and are outside their area of work [19,20]. Although the law requires them to fulfill this duty, it is like assuming a responsibility that is not relevant to doctors because they are not fully equipped with specific techniques for forensic exhumation and identification of human remains [18]. Although the rehumations were sanctioned and observed (both religious and scientific), they nevertheless highlight the impression of violence in the lives of the survivors of Srebrenica.

In his essay on the collective representation of death, Robert Hertz concludes that « mourning in its origins is the necessary participation of survivors in the corpse state of their loved ones; it takes as long as the state itself » (Mauss 2009:145).