SETTING THE RECORDS STRAIGHT: DECRIMINALIZATION IS NOT LEGALIZATION OF CONTROLLED DRUGS

The war on drugs represents more than 50 years of wasted resources, lost lives and preventable harms in the lives of people around the world. It has been a war on human beings since the coming into force of the UN Single Convention on Narcotics Drugs in 1961.

Rather than reduce drug use or drug markets, this war has simply washed immense amounts of money down the drain through adopting repressive measures – mainly directed at what has described as the ‘small fry’ (small scale producers and consumers of illicit drugs), rather than the ‘big fish’ who are profiting from this global illicit economy. 

All over the world, repressive drug policies are mostly an ideological and reactionary response to the situation on the ground and are not based on evidence.

It is a massive failure: this situation has not only stigmatized people who use drugs, it has also led to misguided and harmful policy making, an ongoing concerted effort to overstate the dangers of drugs – the primary actors being politicians, law enforcement agencies, and an ill-informed media – and led to a situation where billions of people are unable to access essential medicines for pain relief and palliative care.

The current policy discourages people who use drugs from accessing health services through fear of arrest, and there have been countless violations of the human rights of people in the name of the war on drugs. As a result, the war on drugs is fueling the global HIV epidemic as drug using communities are driven underground and faced with increased risks such as the sharing of needles and syringes that can lead to blood-borne infections.

Mounting evidence shows that there is the need to move towards a new policy approach – one in which progress is measured by public health indicators such as the number of people receiving drug treatment, rather than being measured by seizures and arrests.

New policy initiatives around the world have taken the form of reducing punitive penalties for minor, non-violent drug offenses, and stepping up harm reduction and public health measures to protect people who use drugs (and their communities) from harms such as HIV.

In these debates, decriminalization is often confused with legalization – sometimes by accident, but sometimes on purpose to confuse the discussions. They are not the same thing. Under legalization, the sale, acquisition, use and possession of drugs are legal and regulated by Government. Our current policies regulating alcohol and tobacco are core examples of this approach in practice. Under this regime, the drug trade is taken away from criminal gangs, whose lucrative illegal markets are undercut and reduced.

On the other hand, under the decriminalization model adopted by a number of countries around the world, the use and personal possession of drugs remains prohibited – but is no longer a crime: it is instead punishable by administrative sanctions much like traffic violation offenses are. Sanctions may include fines, community-based service orders, warnings, education classes, – or no penalty at all.

The crucial difference is that, under this regime, drugs are still illegal, but violations do not attract criminal sanctions or criminal records which can create significant barriers to obtaining employment, housing, government benefits, treatment, etc. At the same time, the supply, production, and trafficking of these drugs remain illegal and criminal – and greater law enforcement resources can be focused on these ‘big fish’ instead of the ‘small fry’.

Decriminalization is not a new concept. Some countries never actually criminalized drug use in the first place, and the much-documented experiences of Portugal date back to 2001 when the Government made the decision to decriminalize all drugs for personal use and reinvest the criminal justice savings into health and treatment services.

This debate globally has often generated more heat than light. You often hear questions like "So, are you saying that we should legalize drugs? Should we create a free-for-all for drug users and drug dealers in our communities?” But we just need to look at how this has worked out for Portugal: they have been able to: increase their spending on prevention and treatment; decreased spending for criminal prosecutions and incarceration; dramatically reduce levels of drug-related deaths, and reduce drug use itself among certain age groups. Drug use remains an issue in Portugal, but they have tackled the confounding challenges of stigmatization, marginalization and high incarceration of a substantial proportion of their population just for minor drug offenses.

The rationale behind decriminalization is to reduce the harms associated with criminalizing people who use drugs because there are several risks associated with drug use – not least HIV and other infections, and the thousands of drug-related deaths every year.

Although the international drug control Conventions restrict the use of controlled drugs to medical and scientific purposes, they should not be interpreted as a validation for the repressive war on drugs. The criminalisation of the possession of illicit drugs for personal use was introduced by the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychoactive Substances – with Article 3(2) stating:

‘...each Party shall adopt such measures as may be necessary to establish as a criminal offense under its domestic law when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption”.

As has been noted by Release and others, the commentary for this Convention says plainly that this paragraph “amounts in fact also to a penalization of personal use.” However, Article 3(2) begins with the statement that any measures adopted shall be "subject to its constitutional principles and the basic concepts of its legal systems." 

Furthermore, Article 36 of the 1961 Convention states that countries “may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, aftercare, rehabilitation and social reintegration.”

This, therefore, allows countries to adopt less punitive approaches to drug possession and use – including decriminalization – without breaching their international responsibilities, as has been formally acknowledged by the United Nations Office on Drugs and Crime.

Prohibition is built upon a premise that repression will act as a deterrence to drug use and supply. Yet no links exist between levels of criminalisation and levels of drug use – as was recently noted by the UK Home Office in their ‘Drugs: International Comparators’ report. In Ghana, prohibition has not seen a decline in drug use in the country since the coming into force of the Provisional National Defence Council Law 236 in 1990. The use of drugs such as marijuana and cocaine is on the ascendency, with thousands of people, particularly the youth, using drugs.

The current bill in Ghana focuses more on punishment than on providing a legal framework to support people who use drugs as an alternative means of curbing our drug problems. There are very few effective drug treatments available to people who suffer as a result of drug addiction. The current review process of our drug laws (for the first time since 1990) is an excellent opportunity for Ghana to make an assessment of what has worked and what has not worked over the years, and to adopt an effective drug law grounded on the health and wellbeing of its citizens.

Ghana needs to take a cue from other progressive countries and consider the decriminalization of drugs, as well as other alternatives to incarceration.

Maria-Goretti Ane Loglo, IDPC Consultant for Africa

Mariagorettiane.loglo@gmail.com

The Journey to decriminalizing Weed: Why it is important for Ghana

There is a significant academic debate about decriminalization of marijuana in the country, and this has received some degree of political and public support. Some have argued that decriminalization will open a floodgate for drug use in the country, while others (like myself), do not agree and see it instead as the best way to reduce drug use in the country. In practice, repressive drug laws have neither succeeded in reducing drug consumption nor put traffickers out of their lucrative business. Instead, these laws have only driven and expanded the trade underground.

What is the current drug policy regime in Ghana?

The current drug policy in Ghana is very repressive in nature. It is a control approach that has failed to consider the health and wellbeing of those who use drugs. It makes no room for people who need life-saving, harm reduction programs such as needle and syringe distribution and opioid substitution treatments. What this kind of regime has done over the years is to marginalize the majority of our citizens.

Studies have also shown that the criminalization of people who use drugs is often more detrimental to their health than the drug use itself and that this approach does not lower rates of drug use. Moreover, some reports show that the criminal justice response contributes to a climate of stigmatization of, and discrimination against, people who use drugs, which makes it less likely that they will receive impartial treatment from police and the judicial system. Addressing consumption through criminal justice institutions ultimately infringes on various fundamental rights of people who use drugs, including the rights to health, information, personal autonomy and self-determination.

Ghana’s current drug law also lacks proportionality in the sentencing of drug offenses. For instance, possession and trafficking both attract a minimum of 10 years in prison. You can see clearly that there is no distinction in the severity of the offenses. Many countries around the world have already taken steps to amend and update their drug laws – more in line with the ‘Support Don’t Punish’ approach that civil society is advocating for.

Why must we decriminalize drug use?

Over time, there has been an increase in drug consumption in the country. New arrivals of synthetic drugs, which are often even more dangerous, have also been on the rise. For example, HIV and hepatitis C infections have increased among people who inject drugs across West Africa. This has mainly been attributed to the sharing of needles.

Early this year, the International Narcotics Control Board presented its 2015 report in the country, and the report indicated that only 1 out of 18 people who use drugs have access to treatment, although the prevention and treatment of drug abuse are parts of the main provisions of the international drug control conventions.The Report further highlights cannabis use in Ghana as the highest and in Africa as a whole, while heroin comes second, with annual prevalence use remaining as high as 7.5 percent among the population 15- 64 years. The figure is particularly high in West and Central Africa, recording 12.4 per cent.

These statistics clearly show that repressive methods are not working, and the collateral damage that comes with the application of these laws are devastating,  hence the need to adopt approaches that are evidence-based, more humane, and have been proven to work over the years.

The word decriminalization has received a very negative response from society, partly because of ignorance or deliberate confusion of the discussion.Decriminalization applies to the purchase, possession, and consumption of all drugs for personal use.It must be noted that, under a decriminalization model, drug possession for personal use remains illegal and prohibited –but the actions taken in response to this offense do not necessarily lead to criminal sanctions. In fact, a more effective alternative to punishment can be social protection and detoxification services, health care, treatment of dependence, fines and reintegration into society. Under this module, police resources can be channeled towards stopping more serious crimes, rather than being wasted on harassing people who use drugs. It is also crucial to remember that drug supply, trafficking, and production remain criminal actions under this approach.

By decriminalizing a drug, you are protecting young people from the harms of disproportionate and unjustifiable criminalization and harassment, as well as making it more likely that they will be able to seek help and treatment as they will no longer fear arrest or persecution.  Children are often, rightly, placed at the forefront of political justifications for the ‘war on drugs’. But the reality is that children’s rights have been increasingly violated through the current approaches and the levels of drug control measures while drug use and drug-related harms among children have continued to rise.

We need to reform the criminalization provisions in our law books for the use and possession for personal use of drugs. The longer they remain, the more we give law enforcement all the power to decide how it's going to be enforced. What that does is it creates inconsistency among enforcement practices, and it contributes to the ongoing systemic injustices around enforcement of our drug laws.

In 2001,Portugal passed a ground-breaking law when it decriminalized low-level possession and use of all illicit drugs. More than a decade later, the results of the Portuguese experience demonstrates that drug decriminalization – alongside a deliberate shift in public funding from law enforcement and into treatment and harm reduction services – can significantly improve public safety and health.There were fears that Portugal might become a drug free-for-all, but that simply didn’t happen.According to the United Nations Office on Drugs and Crime, “Portugal’s policy has reportedly not led to an increase in drug tourism. It also appears that the number of drug-related problems has decreased including petty stealing among drug users”.

What we need to remember is that, under a decriminalization framework, drug use and possession remain prohibited. What it simply does is that criminal penalties are removed, and other sanctions (such as fines or treatment requirements) are imposed, if at all. Crucially, incarceration is no longer imposed for drug possession or use, and lives are no longer ruined with criminal records.

We should all support this reform because criminalization does not address the root causes of the problem. People who use drugs do not need jail to solve their problems – they need help and support, care and compassion, and not punishment. As we celebrate June 26th, the United Nations’ International Day against Drug Trafficking and Drug Abuse, the Global Punish campaign aims to raise awareness of the harms being caused by the so-called ‘war on drugs’. We call on our governments to leave behind harmful politics, ideology, and prejudices, and to prioritize the health and welfare of the affected populations, their families, and communities. Arresting and prosecuting these offenses is expensive for our criminal justice system. It traps too many young Ghanaians in the criminal justice system for minor, non-violent offenses.

The time to act is now!

Maria-Goretti Ane Loglo

IDPC CONSULTANT FOR AFRICA&A MEMBER OF THE WEST AFRICA DRUG POLICY NETWORK GHANA CHAPTER

mariagorettiane.loglo@gmail.com