There is a robust conversation among experts regarding moving away from imprisoning drug users, especially first-time offenders, as a mode of punishment to exploring avenues that allow them access treatment for drug dependence.
In December 2018, the United Nations Office on Drugs and Crime brought together more than 40 justice and health practitioners from the country to promote treatment and care as alternatives to conviction or punishment for people with drug use disorders in contact with the criminal justice system.
They discussed non-custodial options to provide treatment and care at different stages of the criminal justice process, exchanged information on challenges and opportunities and identified priorities for action to use treatment as an alternative.
Strange as it may sound, drug dependence specialists and experts have long argued that persons suffering from drug addiction should be treated differently. They have argued that some of the alternatives to incarceration have been successful in some countries.
Kenya’s Narcotics, Drugs and Psychotropic Substances Act of 1994, which was amended last year, provides that where a person has been charged for possession of cannabis, and where they satisfy the court that the cannabis was intended solely for their own consumption, they are liable to imprisonment for a term of not more than five years or to a fine of not more than Sh100,000.
UNODC estimates show that more than 30 million people worldwide are suffering from drug use disorders and only one in six have access to treatment. A huge percentage of these people are in prison or in other ways in contact with the criminal justice system at some point in their life.
The Kenyan law further provides that in respect of a narcotic drug or psychotropic substance, other than cannabis, and where a person is in possession of less than one gramme, they are liable to a fine of not less than Sh5 million, or to imprisonment for a term of not less than five years, or to both the fine and imprisonment.
On top of the penalties mentioned, the law also provides committal to an appropriate court-appointed treatment programme or to voluntary submission to a rehabilitation programme for a period of not less than six months, where the court deems fit.
One common alternative to incarceration for drug offences in developed nations is probation or monitoring. There are several ways through which this is achieved and at times, the individual must check in every day at a certain location, where they are drug tested. Other times, they meet with a probation officer regularly or are put on house arrest.
In August 2019, the country was treated to a rare occurrence when some 22 drug users detained in police stations in Mombasa asked a magistrate's court to compel the police to supply them with methadone.
This was during the mention of their cases in one of the coastal town’s courts. Methadone is a synthetic analgesic drug that is used as a substitute in the treatment of morphine and heroin addiction.
In the above-mentioned case, a suspect who had been charged with being in possession of one roll of bhang, asked the magistrate to order the police to supply the addicts with methadone, saying since his arrest he had been experiencing severe headaches.
Proponents of this idea also posit that when non-custodial measures are used as an alternative to imprisonment, they contribute directly to the reduction of the prison population. They also support meritoriously the rehabilitation and reintegration prospects of offenders, which in turn results in long-term alleviation of prison overcrowding.
Research is increasingly showing that putting people in jail for drug use has little to no impact on whether or not they stop using. For Kenya, this is a work in progress and a lot needs to be done with regard to legislative reform to ensure that a wide range of alternatives to imprisonment is available and sustainable in law, policy and practice at every stage of the criminal justice process.
Manager Corporate Communications-Nacada. [email protected]
