Dilemma of Drug Abuse, Organised Crime and Human Rights

Different governments across the world have introduced initiatives aimed at beating the menace of drug abuse. But the problem seems intractable, resulting in health and social ills, incarcerations as well as capital punishments in certain countries. Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE reports that prevention and access to treatment might be of greater help than just criminalising the vice.

Painting a grim picture of the ills of imposing drug control policies by different governments, without concurrent policy for the treatment of victims, former Secretary General of the United Nations, Kofi Annan said: “Most governments’ reaction of simply criminalising drug use without thinking about prevention or access to treatment has not just led to overcrowded jails, but also worsened health and social problems.”

According to him, a criminal record for a young person for a minor drug offence can be a far greater threat to their well-being than occasional drug use.

His views resonate with those of the former Nigerian President, Chief Olusegun Obasanjo. Drawing from his personal encounters with drug offenders during a stint in Nigerian prison in the 1990s as evidence that incarceration has failed to stem the drug menace, Obasanjo warned: “Prison does not reform. If anything, it hardens.”

His position was validated by a male respondent in a survey (2015: YouthRISE Nigeria, CISHRWIN, OSIWA) on the Nigerian drug use situation when a respondent said: “I was arrested while smoking igbo (cannabis). I never knew I would spend up to one year in detention. When I was finally released, I became a drug seller, something I was not doing before I got arrested.”

A model drug law was recently unveiled in Senegal by the West African Commission on Drugs (WACD), an initiative of Kofi Annan, giving more impetus to the growing advocacy towards a holistic reform of drug laws in West Africa and Nigeria in particular.

Stakeholders have also argued that criminalisation of drug use raises serious human rights and law enforcement issues. “The risk of acquiring HIV is 23 times higher among people who inject drugs, yet they still face human rights abuses, punitive legal environments and are left out of health and HIV programmes.

“It is essential that countries take a human rights-based approach that is grounded in scientific evidence and includes critical harm reduction services to protect the health and welfare of people who inject drugs and their communities,” said Michel Sidibé, Executive Director of UNAIDS.

Worried by this state of affairs, the United Nations Office on Drugs and Crime (UNODC) is implementing a large-scale project entitled: “Response to Drugs and Related Organized Crime in Nigeria.” The programme is aimed at supporting Nigeria’s efforts in fighting drug production, trafficking and use, and in curbing related organised crime. Funded by the European Union, the initiative proposes a balanced approach to drug control, with equal attention paid to drug interdiction and drug demand reduction, including drug prevention, treatment and care (DPTC). A sensitisation programme was held recently for pro bono lawyers under the umbrella of the “Response to Drugs and Related Organised Crime in Nigeria” project.

According to Mr Glen Prichard, UNODC’s Project Coordinator for the programme, the objectives of the intervention which commenced in 2013 are to support evidence-based policy formulation and improve legislation and coordination; improve law enforcement capacity in drug control and tackling of organised drug-related crime, and to enhance drug prevention, treatment and care services.

The desired outcomes of the programme, held in collaboration with the EU and the Federal Government to galvanise Nigerian lawyers towards tackling the legal hiccups that bedevil drug use, include improving the information and evidence on drug use, drug crime and impact, and using same for policy and programming; enhancing technical and operational capacity in front-line agencies, leading to targeted interventions on drugs/organised crime; and improvement in internal scrutiny processes, and improving the capacity to manage drug treatment/rehabilitation and prevention through the creation of a network of quality drug treatment service providers.

It is said that people use drugs for varied reasons, namely to deal with life’s problems and bad moods, to contain boredom, to deal with mental health problems, and to deal with physical pain.

UNODC (2015) estimates that drug-related income for trafficking ranges between US$ 426 billion and $652 billion (2014). Though Nigeria lacks reliable and comprehensive data on the prevalence of drug use, substances used and the number of people with drug disorders, the country is piloting a National Epidemiological Network on Drug Use (NENDU, 2015) survey in 11 treatment centres under the “Response to Drugs and Related Organized Crime in Nigeria” programme.

This provides drug treatment data for Nigeria. Between January and December 2015, 1,044 patients entered for treatment in Nigeria in the 11 treatment centres that are currently part of the NENDU reporting system. The drug declared the most frequently used by the patients entering treatment are cannabis (36.2 percent), followed by opiates (28.3 percent) and alcohol (17.1 percent).

Among the different substances declared as “others”, 79 percent are cigarettes/tobacco. The opiates concerned by the entry into treatment are mainly prescription medicines: tramadol (71 percent of opiates as the most frequently used substance and specified), codeine (15.1 percent) and pentazocine (9.9 percent).

International and local drug control protocols

The international drug control system emphasises public health imperatives in framing the legal architecture for drug use. It calls on nations to adopt science-based approaches to drug prevention and treatment. The system is underpinned by key conventions that drive drug policy, the precursor of which is the International Opium Convention of 1912.

This was followed by the First Geneva Convention in 1931, the Convention for the Suppression of Illicit Traffic in Dangerous Drugs in 1936, and the 1961 Single Convention on Narcotic Drugs (and a 1972 protocol amending it). Others are the 1971 Convention on Psychotropic Substances, Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (“Vienna Convention” 1988), UN Convention against Transnational Organised Crime 2003 (and its three protocols) and the UN Convention against Corruption in 2005. Article 3 of the “Vienna Convention” mandates governments to consider factual circumstances that establish the seriousness of drug offences when imposing punishment. Nigeria is a signatory to the 1988 convention.

It has been said that this regime of international norms birthed Nigeria’s counter-narcotics strategy. The thrust of the strategy was to assuage Nigeria’s international obligations as well as local concerns of ensuring that the country does not become a drug haven. The key legislations against the production, trafficking and abuse of illicit drugs in Nigeria include the Dangerous Drugs Ordinance of 1935, Indian Hemp Decree No. 19 of 1966, Indian Hemp (Amendment) Decree No. 34 of 1975, and the Indian Hemp (Amendment) Decree and the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984 which prescribed death penalty for illicit traffic in narcotics drugs.

Others are the Special Tribunal (Miscellaneous Offences) (Amendment) Decree of 1986 that replaced the death penalty with life imprisonment; the National Drug Law Enforcement Agency Decree No. 48 of 1989 (as variously amended by Decree No. 33 of 1990, Decree No. 15 of 1992 and Decree No. 62 of 1999) all of which harmonized as Cap. N30 Laws of the Federation of Nigeria (LFN) 2004; the Money Laundering (Miscellaneous Offences) Decree No. 3, 1995; the Money Laundering (Prohibition) Act No. 7 of 2004; Poison and Pharmacy Act Cap 535 of 1990; Food and Drugs Act Cap F32 LFN 2004; NAFDAC Act Cap N1 LFN 2004; Dangerous Drugs Act Cap D1 LFN 2004; Counterfeit and Fake Drugs and other Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 LFN 2004, and the Money Laundering (Prohibition) Act of 2011.

In practice, however, the conventions have wrought mixed misinterpretations, with a range of abuses of drug users’ human rights. This is further exacerbated by a plethora of national laws that circumscribe the rights of drug users, notwithstanding the provisions of the International Bill of Rights (1966) as well as national constitutions.

Right of drug users

Some of the rights of drug users which have been subjected to longstanding onslaught are the Right to Life/Right to Health, to the effect that People Who Use Drugs (PWUD) have the same right to life and good health as everyone else. Despite drug use being a criminal offence, the Right to Life (Section 33 CFRN 1999) remains inalienable except within permitted constitutional derogations.

For example, PWUDs are commonly subjected to serious discrimination in health-care settings, with many being denied access to medical treatment on the grounds of their prior or current drug use. Globally, it is estimated that only 14 per cent of HIV+ drug users receive Antiretroviral Treatment (ART). Many drug users avoid seeking health care for fear that information regarding their drug use will be shared with the authorities, even as some get arrested, imprisoned or put in treatment against their will.

PWUDs are often targeted by law enforcement agencies, leading to arbitrary arrests, prolonged detention and incarceration for minor drug offences. This adversely implicates their Right to Personal Liberty (Section 35 CFRN 1999) as secured by the Nigerian Constitution. Police sometimes target drug treatment environs or services for drug users to make arrests. UNODC estimates that PWUD imprisonment is common, with incarceration rates of 50 to 90 per cent prevalent in this population.

Upon arrest, PWUDs are often subjected to violence and torture to extract confessions or obtain information about other drug users or traffickers. In many countries, compulsory drug detention and rehabilitation centres typically subject drug-using detainees to long hours of physically strenuous exercise, physical and verbal abuse, beatings, solitary confinement, and forced labour. UNODC also reports cases of non-consensual experimental treatment, torture, ill-treatment and sexual violence against drug users. This is contrary to the Right to Dignity of Human Persons (Section 34 CFRN 1999).

Aside from injectors, women and children are among the vulnerable groups affected by drug-related law enforcement activities, with sundry rights adversely affected. UNODC records that women are imprisoned for drug-related offences more than for any other crime due largely to poverty and lack of empowerment. Women drug users may lose custody of their children, and may be forced or coerced into sterilisation, abortion or criminal penalties for using drugs during pregnancy. They may not receive appropriate care when pregnant, and may be targets of violence, including sexual violence perpetrated by partners and law enforcement officers. Children who use drugs are also subject to criminal prosecution. They often have no access to harm reduction and drug treatment services.

Death penalty for drug offenders

Although the International Narcotics Control Board has advised that the death penalty should be abolished for drug-related offences and applied for the “most serious crimes,” no fewer than 33 countries or territories continue to impose the death penalty for drug-related offences.

Meanwhile, drug arrestees are denied access to legal assistance on the basis that they are not captured within the ambit of the Legal Aid Act 2011. It has been argued that a combined reading of sections 8 and 10 of the Legal Aid Council excludes drug arrestees from the umbrella of legal aid. It is further contended that the National Drug Control Master Plan (2015-2019) has not ameliorated this hardship. However, the master plan restates the new thinking towards a “balanced approach” in the treatment of drug users when it asserts that the framework “promotes rule of law and human right approaches to addressing the public health and criminal justice challenges and threats of illicit drug use, as well as to combating drug-related organised crime.”

It is noteworthy that the UNODC programme for pro bono lawyers is aimed to fill this void. Apart from enlightening lawyers on the emerging dynamics in the drug use and treatment regime, it also kick-started a nationwide mapping of pro bono lawyers willing to offer legal services to indigent drug users.

According to Chinelo Uchendu, National Coordinator of Legal Advocacy and Response to Drugs Initiative (LARDI), the views of most of the lawyers have changed for the better as they are now convinced of the need for drug users to be treated as vulnerable persons in need of health care treatment and support rather than criminalisation.

Cross section of participants at United Nations Office on Drug and Crime (UNODC), Federal Government and European Union sponsored programme for pro bono lawyers to provide free legal services to indigent drug arrestees in Abuja.

LARDI is the network formed by the pro bono lawyers to prosecute their mandate under the Response to Drugs and Related Organised Crime in Nigeria framework and with the support of the Federal Government, the EU and UNODC.

In confronting the issues, a list of minimum standards for drug dependence treatment in Nigeria was developed based on international human rights instruments and the WHO/ UNODC Principles of Drug Dependence Treatment and Care (2008).

International evidence has shown that the eradication of drugs and criminalising drug users has unintended consequences, including rise of organised crime, violence, human rights violations, public health impact and crisis such as HIV explosion, and corruption. A study (2015: YouthRISE Nigeria, CISHRWIN, OSIWA) in six states with 95 participants aged 18 and 35 years showed that, contrary to the mandate given to the National Drug Law Enforcement Agency (NDLEA) to prosecute drug offenders, the Nigeria Police arrested 64 per cent of the drug suspects while NDLEA arrested 22 per cent.

Both agencies jointly arrested 14 per cent. While none of the arrestees was sentenced to imprisonment due to drug use alone, detention period ranged from days and months to two years, without the suspects being taken to court. Instructively, release from custody was largely dependent on the ability to pay a bribe, while many of the arrestees reported psychological and physical torture, including being slapped, punched, threatened with a gun, and beaten with items such as batons, electrical cables and going for days without food and water. The female suspects reported sexual assault by the security operatives.

Accordingly, the poignant words of Yury Fedotov, UNODC Executive Director, are apposite when he says: “It is important to reaffirm the original spirit of the conventions, focusing on health. The conventions are not about waging a ‘war on drugs’ but about protecting the ‘health and welfare of mankind.”

Nigeria must key into this paradigm shift in drug treatment, which has been embraced by Europe and the Americas. That way, we conclude with the words of Ethan Nadelmann, Executive Director of the Drug Policy Alliance, who said, “Maybe, just maybe, West Africa will be spared the fate of other parts of the world where prohibition-related crime, violence and corruption spiraled out of control.”