Narcotics Amendment Bill proposes new strategies in the war against drugs

In Summary

• Narcotics drugs and psychotropic substance abuse in Kenya remains a huge menace and is a major challenge with negative impacts on social, economic, governance and criminal justice sector.

•In 2004, 1000 Kilograms of cocaine was seized in Kenya making it one of the biggest drug seizures in Africa.

Catherine Ngina.
Catherine Ngina.
Image: COURTESY

Kenya is amongst the top ranked countries of origin, departure and transit of trafficking of narcotic and psychotropic drugs. This is despite The Narcotic drugs and psychotropic substances (Control) act No. 4 of 1994 which provides the framework for combating abuse of narcotic drugs and psychotropic substances in Kenya. The law clearly provides the parameters on the control, possession, transportation, trafficking and the use of narcotic drugs and psychotropic substances. The law also outlines the punishments for the illicit use, possession and trafficking of narcotics drugs and psychotropic substances.

  Narcotics drugs and psychotropic substance abuse in Kenya remains a huge menace and is a major challenge with negative impacts on social, economic, governance and criminal justice sector. In 2004, 1000 Kilograms of cocaine was seized in Kenya making it one of the biggest drug seizures in Africa. According to the Word Drug Report 2018, Kenya was one of the main countries that heroine was trafficked along the Southern route to the Western and Central Europe during that period. In 2018, 1.5 Tonnes of heroine was seized in Kenya making it one of the countries with the largest seizure of heroine.

 In 2014, H.E President Uhuru Kenyatta oversaw the State Department of Interior and Coordination of national Governance detonate drugs yatch 'Baby Iris' which was intercepted with narcotics into Kenya worth Kshs. 22 Million. The President in his 2015 Report on measures taken and Progress Achieved in the Realization of National Values and Principles of Governance (NVPG) cited drug trafficking and drug and psychotropic substance abuse as one of emerging security challenges that undermines Kenya's efforts toward realizing national identity and exercise of sovereign power.

The National Survey on Alcohol and Drug abuse among Secondary School students in Kenya (2016) by the National Authority for campaign against Alcohol and Drugs (NACADA) revealed that although heroine, mandrax, rohypnol and cocaine are illegal, they are nonetheless available to school going children with cocaine being the most abused. According to NACADA, the most commonly mentioned source of substance abuse is from friends, home and from other students. NACADA'S data shows that drugs and substance abuse are more likely to be used during school holidays, on students' way to home.

     According to the institute of Security Studies, criminal groups and gangs work hand in hand with drug traffickers to maintain drug trade and criminal network alive. The Sentencing of Baktash Akasha who built a big drug trafficking operations in East Africa for 25 years imprisonment disrupted the top-tier of the drug trade. However the lower criminal activities around drug trafficking still remain active. In 2019, there were increasing gang attacks in the Coastal region of Kenya which the National Police Service attributed to links with the drug cartels. Regrettably, these increasing criminal attacks have had an adverse impact on the tourism sector and somewhat dent Kenya's image in terms of safety and security.

Has the Narcotics Drugs and Psychotropic Substances (Control) Act. No 4 of 1994 been effective in combating Drug and Substance abuse? Even though the bill has the legal framework in place, it has gaps and challenges which have made these efforts difficult in several ways which include;

  1. Lenient Penalties: Drug traffickers are able to quickly and easily pay the fines imposed on them and hence continue with their illicit activities. The fines and imprisonment were informed by the market value of the drugs in 1994 when it was enacted. The market value of narcotics is now higher and these penalties are not deterrent to the perpetrators of the vice.
  2. The Current Law is Outdated: Currently, drug traffickers use precursor chemicals to manufacture narcotic drugs. There are no provisions in the current law to punish the unlawful use of precursor chemicals for the manufacture of narcotics.
  3. Ambiguity: There is uncertainty of the sentences prescribed under the law. Over 12 years (2007-2019), 2,480 cases of convicted persons successfully appealed against fines and imprisonment sentences. The law also lacks provisions for punishing law enforcement officers who aid or conceal drug trafficking, which is now a global concern.
  4. The current law does not have specific provisions to punish persons conspiring in Kenya or outside Kenya to commit offences related to drug trafficking.
  5. The current law does not make provisions for securing crucial evidence through interception of communications amongst drug traffickers and conspirators.
  6. The law is lenient on people who conceal information or fail to disclose information to aid in the investigation and prosecution of offences related to drug trafficking. This has been a major contribution to the crime thriving.

   Fortunately the fight against Narcotic Drugs and Psychotropic Substance abuse is not all lost as there has been a growing recognition by various actors to address these gaps and challenges under the law.

To curb the menace that is Narcotic Drug and Psychotropic Substance Abuse in Kenya, The National Committee on Criminal Justice under the auspices of the Judiciary of Kenya has recommended for the amendment of the Narcotics Drug and Psychotropic Substance (Control) Act No. 4 of 1994 to enable effective enforcement of the Act and to streamline criminal justice system.

     The Narcotic Drugs and Psychotropic Substances (Control)(Amendment) Bill, 2020, is timely as it responds to governance, social, economic, and criminal justice sector. The Bill recommends the following harsher penalties:

  1. Enhanced penalties on the offences relating to the possession and trafficking in Narcotics and Psychotropic Substances as follows:
  • Possession of narcotic drugs will get a fine of between Kshs. 5 Million to Kshs. 20 million from the current fine of not less than 1 million.
  • Trafficking of narcotic drugs and substances will attract a fine of Kshs. 500,000 to Kshs. 1 million or 3-times the market value of the drugs from the current fine of not less than Kshs. 10million to Kshs. 50 million.
  • Owners or persons occupying or managing premises that are used to prepare narcotic drugs and psychotropic substances for smoking, manufacturing, sale or distribution. A fine of Kshs. 20 Million or an imprisonment term of not less than 10 years or both. The current Bill imposes a fine of Kshs. 250,000 or imprisonment of not more than 10 years or both.
  • Contravening regulations made by the Minister on possession, sale, supply destruction management and destruction of narcotic drugs and Psychotropic Substances; or on the regulations on administration and management of Rehabilitation Centers will attract a fine of not less than Kshs. 5 million or imprisonment of not less than 5 years. The current Bill imposes a fine not exceeding Kshs. 250,000 or imprisonment of not more than 5 years or both.
  1. The Bill has defined precursors and chemical substances that could be used in the manufacture of narcotics. Severe penalties will be handed to persons who manufacture, possess, or transport precursor chemicals for unlawful production of a narcotic drug.
  2. The Bill prescribes offences for law enforcement officers who aid or collude with persons suspected of committing offences under the law.
  3. The Bill introduces the offence of conspiring with persons inside or outside Kenya to committing offences related to manufacturing, possessing, and trafficking in or outside Kenya.
  4. The Bill introduces the offence of collecting, generating, or transmitting for use in committing offences under the law.
  5. The Bill seeks to enhance effective prosecution. It mandates the Director of Public Prosecution to request for information or evidence where a person including foreign or entity alleges or has information that person has committed offences under The Narcotic Drugs and Psychotropic Substances (Control) Act.
  6. The Bill provides for the interception of communication and production of that communication in court as evidence. The draft bill proposes that a police officer above the rank of Chief Inspector of Police may apply to the High Court for an order to intercept communication. Based on the application by the police officer, the court may order for a communication service provider to intercept and retain specific communication that is about to be received or transmitted by the service provider.
  7. The Bill makes it obligatory to disclose information that may aid in the prevention, commission of offence arising under the Act and aid in arresting or prosecuting persons that have committed offences under the Act.

Recent research shows that the public feels that the amendments on penalties are unfairly targeting the end users. From the numerous interactions with those interviewed, it is important to highlight the following:

  1. On Cannabis Users, the proposed amendments reduce the imprisonment to not more than five years of a fine of not more than Kshs. 100,000. The same offence in the current law attracts a fine of not more than 250,000 and imprisonment of not more than 10 years.
  2. In Narcotic Drugs and Psychotropic Substances other than cannabis, offenders found in possession of less than 1gm to a fine of not less than Kshs. 1 million or to a term of not less than five years or both.
  3. Committal of persons to Rehabilitation Centers. Worth noting is that the current law in section 58 recognizes that if the users are addicted and requires treatment, the court upon satisfaction that an accused is an addict to narcotics and psychotropic substance and that their possession was only for personal use, can order that the imprisonment imposed on him be spent in a rehabilitation center.

There is involvement of medical experts during court processes to determine if offenders are users or otherwise.

   NACADA has been in the forefront in fighting this menace and has used substantial resources towards rehabilitation of persons abusing drugs and alcohol.

 

Catherine Ngina is a freelance writer and a commentator on social issues [email protected]