“Countering the world drug problem… must be carried out in full conformity with the purposes and principles of the Charter of the United Nations and other provisions of international law, and in particular with full respect for…all human rights and fundamental freedoms” -UN General Assembly, 1998 Political Declaration on the Guiding Principles of Drug Demand Reduction and Measures to Enhance International Cooperation to Counter the World Drug Problem
Nigeria is said to be the “Africa’s narcotics hub and a major transshipment point between the Eastern and Western Hemispheres” and “the focal point of West African narcotics trafficking”. Nigeria tops the list with the highest trafficking and drug use in West Africa. Nigeria is a transit country for heroin and cocaine destined for Europe and, to a lesser degree, for the United States. Geographical location of Nigeria, thick population, bustling commerce, and vibrant air transportation makes drug trafficking attractive. In view of this, Nigeria adopted law enforcement approach to respond to the challenges of drug trafficking, production and use, and have enacted the most repressive and punitive national anti-drug and anti-crime legislations in Africa. The National Drug Law Enforcement Agency (NDLEA) was established to enforce laws against the cultivation, processing, sale, trafficking and use of hard drugs and to empower the Agency to investigate persons suspected to have dealings in drugs and other related matters.
Unfortunately, the “war on drug” and use of “prohibitionist and punitive approaches” to drug control in Nigeria over the years have made the NDLEA Act to criminalize every kind of activity connected with the production, processing, distribution, sale, use and concealment of illicit drugs. Sections 11-20 and 22-23 of the Act provided for sanctions for drug-related offences ranging from 5-25 years and to life imprisonment including seizure and forfeiture of assets and properties forfeited to the Federal Government. The penalties for offences in relation to drug abuses include imprisonment for life and imprisonment for a term not less than 15 years and not exceeding 25 years. Section 22 of the Act provided for a “Double Jeopardy Offences” on exportation of narcotic drugs and other related drugs with penalties of imprisonment for a term of 5 years without an option of a fine and forfeiture assets and properties, which clearly violates the fundamental rights of Nigeria citizens as safeguarded under Section 36 (9) of the 1999 Nigerian Constitution (as amended). Under Section 20, the burden of proof has been removed from NDLEA and placed on offenders on drug abuse offences contrary to Section 36(5) of the 1999 Constitution. The only alternative to imprisonment provided for in the NDLEA Act is in reference to minors on offences in relation to drug abuse and penalties under Section 20 (4)). There is no provision of specialized services under the law to render this provision applicable.
Pathetically, the impact of drug control measures are been assessed by the level of crops eradicated, number of arrests and seizures made and severity of punishments applied to users, growers and dealers by the NDLEA. According to the NDLEA Report(2013), from 1990 to 2013, the NDLEA has intercepted almost 3, 500 tons of narcotics from drug traffickers, including approx. 2,8000 tons of cannabis, 178 tons of cocaine, 195 tons of heroin, and 233 tons of psychotropic substances. With the same period, the agency convicted some 22, 000 drug traffickers. Cannabis eradication has created a dilemma in Nigeria. For instance, in 2013, 847.46 hectares of cannabis plantations nationwide were discovered and destroyed. Ironically, this crop provides significant revenue to small-scale farmers in Nigeria. The crop eradication practices by the NDLEA rarely ensure that alternative, sustainable and acceptable livelihoods are in place well before any eradication takes place, as is suggested in internationally agreed standards on alternative livelihoods. Moreover, there is broad acknowledgement that such ‘containment’ operations against illicit producers “have had limited impact on drug supply” elsewhere and only “serve to exacerbate existing development problems”.
Moreover, the UN General Assembly in its 1998 Political Declaration on the Guiding Principles of Drug Demand Reduction and Measures to Enhance International Cooperation to Counter the World Drug Problem has described actions against world drug problem as a common and shared responsibility requiring an integrated and balanced approach in full conformity with the purposes and principles of the Charter of the United Nations and other provisions of international law, and in particular with full respect for all human rights and fundamental freedoms. According to the UN Single Convention on Narcotics Drugs of 1961 as amended by 1972 Protocol, the Convention on Psychotropic Substances of 1971 and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, the primary concern of the drug control system is the ‘health and welfare of mankind’. Also, Drug control bodies like NDLEA and Nigeria government are bound by the overarching obligations created under Articles 55 and 56 of the 1945 UN Charter, which promote universal respect for, and observance of, human rights and fundamental freedoms.
Nigeria has rectified many regional and international human rights instruments and treaties such as International Covenant on Civil and Political Rights (1976) and its Optional Protocol (1976), International Covenant on Economic, Social and Cultural Rights (1976), Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment(1984), Convention on the Elimination of all forms of Discrimination against Women (CEDAW)(1979) and its Optional Protocol (2000), Convention on the Rights of the Child(1989) and its Optional Protocols, African Charter on Human and Peoples Rights(1986) and its Protocol(1995) and African Charter on the Rights and Welfare of the Child(1999).
African Charter on Human and Peoples Rights (1986) has been domesticated by Nigeria as part of Nigeria domestic law as provided under Section 12 of the Nigeria Constitution. More so, most of the human rights principles have been made part of the Nigeria Constitution under the Chapter IV ‘Fundament Rights’ provisions. NDLEA Act does not supersede international human rights treaties. Therefore, Nigeria government and NDLEA are bound by customary human rights law and the terms of the Charter of the UN and above-mention treaties particularly the African Charter on Human and Peoples Rights(1986) and the provisions of Chapter IV of the Constitution to protect and fulfill human rights under the drug control framework in Nigeria. These obligations are not optional, nor are they relinquished in the name of war on drugs or making Nigeria “Drug Free” country. But from every indication Nigeria governments and NDLEA have failed to fulfill their international human rights obligations to drug control.
Invariably, human rights law is part of the legal framework for drug control. Human rights obligations apply at all times as a check and balance against abusive practices, and stand alongside the NDLEA Act in the legal framework for drug control in Nigeria. It serves as a counter-balance to NDLEA Act that can and does act as barriers to the reduction of drug related harm and to the realization of the rights of people who use drugs and affected communities in Nigeria. In this regard, human rights-based approach to drug control in Nigeria should be a conscious and systematic integration of human rights and human rights principles in all aspects of drug control policies and programming work, and this should include a focus in programming on the promotion of equality and nondiscrimination, ensuring the participation and inclusion of disadvantaged groups, and strengthening of state accountability concerning its human rights obligations.
Conversely, human rights-based approach to drug control in Nigeria should take human rights as a starting point, rather than an afterthought. Human rights are not only a statement of principle – Nigeria has binding obligations under international law to respect, protect and fulfill them. This means that Nigeria government should not interfere with the human rights of Nigerian citizens (including people who are using and/or growing drugs) nor allow third parties such as NDLEA and other law-enforcement officers to do so.
Accordingly, human rights-based approach to drug control in Nigeria requires reframing the aims of drug control in line with human rights obligations; restructuring the ‘pillars’ of drug control (supply and demand reduction), the development of a new system of indicators for drug control programmes; the interpretation of NDLEA Act in line with international human rights law; the development of national guidelines on human rights and drug policies to guide national implementation; the repeal or amendment of abusive provisions of NDLEA Act and the amendment of abusive policies or practices by NDLEA and other law enforcement agencies; the development of practical tools to assist in the development of drug policies and programmes at national level that are compliant with human rights; and human rights training for law enforcement agencies, drug treatment staff, parliamentarians, civil servants and affected communities etc.
More so, human rights-based approach to drug control in Nigeria should focus on vulnerability including improved data collection to uncover patterns and target responses – this includes a focus on children and young people, a holistic approach looking at the structures and policies surrounding drug use, production and trade (such as income inequality, poverty, housing, conflict and violence etc), a strong gender focus in policies and programmes, meaningful participation of affected groups including people who use drugs, transparency in national decision making, and accountability, including the implementation of systems of redress for victims of human rights violations committed in the name of drug control in Nigeria.
However, Nigeria government and the NDLEA for a long time have been paying insufficient attention to fundamental rights and freedoms, public health and social development in the design and implementation of drug control policies, laws and structures. In many cases human rights abuses have been promoted as an indicator of “success” in fighting drugs” in Nigeria. Drug control measures in Nigeria have resulted to situations where people who use drugs are routinely subjected to violence during arrest and detention, in some cases to extract confessions. People incarcerated for drug offenses account for a substantial percentage of prisoners throughout Nigerian prisons. Those incarcerated are often the most marginalized – small time dealers, low level drug offenders, and overwhelmingly, people who use drugs.
As adumbrated by the YouthRISE Nigeria Report (2015), young people who used drugs (YPWUDs) in Nigeria have witnessed series of human rights abuses including routine arrest and detention by law enforcement officials, extortion, physical harm, rape and sexual assault, stigma and neglect, among many others. Meanwhile, the abuse reported is not limited by law enforcement officials but also those in treatment and rehabilitation centers. According to the report, most of the YPWUDs have not been sentenced to imprisonment as resort of drug use alone when arrested and detained in accordance with the NDLEA Act. On experiencing arrest, 64% of them have been arrested by the police, 22% by the NDLEA and 14% by both the Police and NDLEA.
Also, they have been made to languish in pre-trial detention for long periods from days to months up to 2 years for drug use and without being taken to the court for prosecution. To secure release from detention, most YPWUDs were made to pay bribes to law enforcement officials. In this regard, the poor and most vulnerable YPWUDs who are at the lower level of the socio-economic ladder are commonly detained for a long periods before they are released, sometimes on “Compassionate Grounds”. Also, according to the report most YPWUDs who are placed in detention suffer from psychological and physical torture which include slapping, punching, threatened with a gun, and beaten with items such as batons, electrical cables and the likes. Some are held for days without food and water while some while housed for days with hardened criminals. More so, there is increasing cases of sexual assault and rape of female drug users by the law enforcement officials. Most of the female drug users suffered from unwanted and insensitive touching, forced sex and request for sex in exchange for release.
As been advocated by the UNODC, people suffering from substance use disorders who have committed drug-related offences should be encouraged to enter treatment as an alternative to criminal justice sanctions. In all drug-related offences in Nigeria, alternatives to imprisonment, like imprisonment and other forms of punishment, should not be cruel, inhuman, or degrading. Even if they are not inherently so, alternatives may violate human rights standards and norms if used inappropriately or improperly. The United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) under Rule 3.9 maintains that “the dignity of the offender subject to non-custodial measures shall be protected at all times”. This Rule is complemented by a further provision protecting the right to privacy of both the offender and his family in the application of non-custodial measures (the Tokyo Rules Rule.3.11). The Tokyo Rules under Article 8.2 listed a wide range of non-custodial measures that can be applied as an alternative to imprisonment for some drug offences and which, if clearly defined and properly implemented, have an acceptable punitive element.
In view of this, in all cases in drug control measures, imprisonment should be used as a penalty of last resort, and the choice between penalties should take into account likelihood of rehabilitation and making of none-custodial orders on drug offences. Moreover, criminal penalties for drug use and trafficking in Nigeria do not reflect the principle of proportionality. The severity of penalties must not be disproportionate to the criminal offence. Proportionate sentencing frameworks is yet to be developed in Nigeria to distinguish between the type of drugs and the scale of the illicit activity, as well as the role and motivation of the offender: serious or organised traffickers; micro-traffickers (low-level dealers or smugglers); people dependent on drugs; and people who use drugs occasionally (or ‘recreationally’).
Overtime, Nigerian drug control efforts and policies undermines lifesaving health services. In fact, Nigeria criminal justice system has become an impediment to reducing the risk of HIV transmission among drug users or to HIV-related care and treatment for injecting drug users. According to National Drug Control Master Plan (NDCMP)(2015), persons who inject drugs (PWIDs) in Nigeria account for 9 per cent of new HIV infections annually. HIV prevalence among PWIDs is 4.2 per cent against a backdrop of 3.4 per cent HIV prevalence in the general population. Public-health and harm reduction interventions, such as needle and syringe programmes and opioid substitution therapy is not authorized and encouraged under the Nigerian drug laws.
In this regard, all parties to the drug conventions are – without exception – WHO Member States, and have agreed on the WHO Constitution, which recognizes the right to the highest attainable standard of health. As Members of the United Nations, Nigeria should have due regard for its foundational documents, including the Universal Declaration of Human Rights, Article 25 (Right to access medical care adequate for health and well-being). From a human rights perspective, drug dependence should be treated like any other health-care condition, denial of medical treatment and/or absence of access to medical care in custodial situations constitute cruel, inhuman or degrading treatment or punishment and is therefore prohibited under international human rights law.
A paradigm shift is highly needed in Nigeria, whereby human rights law is recognized and placed as a core element of the national legal framework for drug control. This new legal framework must focus on public health, in order to improve access to essential medicines and develop evidence-based harm reduction, prevention, treatment and care programmes, development, in order to refocus on alternative development, poverty reduction, education, employment, social security, etc and human security, in order to refocus law-enforcement efforts on those most responsible for drug-related harms, rather than low-level and non-dangerous dealers, people who use drugs, and vulnerable farming communities.
Most importantly, Nigeria government should break the taboo, and pursue an open debate and promote policies that effectively reduce consumption, and that prevent and reduce harms related to drug use and drug control policies. Time has come for Nigeria government to decriminalized drug use for occasionally or recreational use. The time has come for a change in approach to drug policy and drug control measures in Nigeria; a change from repressive and prohibitionist approach to public health and human rights-based approach. Nigeria government must act urgently: the “war on drugs” is failing. We need a drug policy change for the “health and welfare” of Nigerians.
By Okereke Chinwike ESQ, President/CEO, African Law Foundation (AFRILAW) and Convener, Enugu Forum on Drugs (EFOD), Enugu, Nigeria.