CHAPTER ONE

INTRODUCTION

1.1 Introduction

1.1.2 What is illicit traffic in drugs?

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances(1988) defines illicit traffic in drugs as the production, manufacture, extraction;

preparation, offering, offering for sale, distribution, sale, delivery o any terms whatsoever,

brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic

drugs or any psychotropic substances contrary to the provisions of the 1961 convention, the 1961

convention as amended or the 1971 convention.1

Drugs may be divided into three categories, namely; depressants, stimulants and hallucinogens.

Depressants are sedatives which act on the nervous system and they include heroine and

barbiturates. Stimulants are agents that inactivate, enhance or increase neural activity and they

include cocaine, crack and amphetamines. Hallucinogens are a chemically divers group which

produce profound mental changes such as euphoria, anxiety and sensory distortion and they

include marijuana and ecstacy.2

Drug abuse has adverse social impacts. It may cause damage to the health of the abuser i.e. abuse

of cocaine may cause nausea, convulsion and depression while abuse of marijuana affects one’s

perception and reaction and this can result in accidents. Drug abuse plays a substantial role in the

spread of HIV/AIDS especially when the abuser share injecting equipments or when the abusers

become intoxicated thus letting down their guard and engaging in sexual acts. Abuse of drugs

can also inhibit an individual from realizing his full potential.

1 Article 3(1), United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances(1988), UN. Doc. E/CONF.82/15(1988)28 ILM.493(1989).2 ‘Drug Abuse’ A paper contributed by UNDCP, at http/www.undcp.org/pdf/report 1997-12-31 1.pdf,2.

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In addition to adverse impact on individuals, drug abuse may also result in conflict between

partners and even separation of couples who were previously happily married. Emotional trauma

is prevalent in families where either of the partners is an addict and this is due to the emotional

hardships to which they subject their partners and/or their children by yelling, talking down,

insulting or manipulating and even neglecting them.

Money generated by illicit activities does not normally enter into the formal economic process of

a country. Hence, a source of serious error is introduced into the estimates of national income

and expenditure. Statistics by the United Nations indicate that tobacco and alcohol consumption

account for nearly five million deaths annually worldwide.

The social impact of drug abuse which led to international tension that prompted the

international community to take action were; rapid changes in political alignment, reduced

family and community cohesiveness, increased unemployment and underemployment, economic

and social marginalization and increased crime. At a time when dramatic improvements are

taking place in some sectors, e.g., communications and technology, improvement of the quality

of life for many people has fallen far short of the potential that exists and the rising expectation

of people who know life can be better.3 Thus, international community found it fit that it should

regulate this menace. In addressing these glaring problems, the UN established various

frameworks in order to deal with the problem posed by drug abuse head on.

The first convention to this effect was The Single Convention Narcotic Drugs,(single

convention) as amended by the Protocol Amending the Single Convention on Narcotic Drugs.4

This convention is the foundation of today’s drug control system. It covers the plant based drugs

such as opium, opiates such as heroin and morphine, cannabis and cocaine. Its key purposes were

to reorganize the United Nations-based drug administration. Since The Single Convention on

Narcotic Drugs was enacted at a time when most abused substances were plant products, it never

covered synthetic drugs such as amphetamines. A decade later, The 1971 Convention on

Psychotropic Substances (Psychotropic’s Convention), 5was established by states and its focus

on extending international control to include numerous synthetic psychotropic substances:

3 UNDCP ‘Social Impacts of Drugs’ (1995) Position paper for the world summit for social development, page 3, at http/ www.unodc.org/.../ technical_series_1995-03-01_1.pdf.4 1961 18 UST 1407 ;520 UNTS 204; 14 ILM 302 (1975).5 1019 UNTS 175 ;10 ILM 261(1971).

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stimulants such as amphetamines; depressants, including barbiturates; and hallucinogens such as

mescaline and LSD (lysergic acid diethylamide). It also sets out detailed provisions concerning

the international trade on psychotropic Substances, including measures that strictly control their

export and import. In 1988, the international community adopted The United Nation Convention

Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,6 which fulfilled the

previous two treaties. Its main objectives were improving international law enforcement

cooperation and strengthened domestic criminal legislation. The convention brings illicit traffic

on drugs and psychotropic substances under international control. To this effect it contains

provisions on money laundering, the freezing of financial and commercial records, extradition of

drug traffickers, transfer of criminal proceedings, mutual legal assistance and strict monitoring of

chemicals often used in illicit production.

Kenya has ratified all the three conventions. It ratified the Single Convention on Narcotic Drugs

1961 on 13th November 1964, the Convention on Psychotropic Substances 1971 on 18th October

2000 and the Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances

on October 19th 1992 and it came into force in Kenya in 17th January 1993. Kenya has since

taken various steps in domesticating these conventions.

In 1983, the Kenya government established “The Anti- Narcotics Unit” within the Criminal

Investigations Department (C.I.D) of the Kenya Police which is charged with curbing production

and trafficking of illicit hard drugs and psychotropic substances. The unit is also charged with

the responsibility of enforcing parliamentary statutes controlling drug abuse and trafficking in

Kenya.7 Kenya also enacted The Narcotic Drugs and Psychotropic Substances (control).8 This

statute, inter alia, sets out the penalties to be incurred when someone is found in possession or

trafficking in narcotic drugs. Kenya enacted the Tobacco Control Act 2007. This act came into

force in 8th July, 2008 to control the production, manufacture, sale, labeling, advertising

promotion and sponsorship of tobacco products. Another instrumental step which Kenya has

taken is The enacting the National Authority for the Campaign Against Alcohol and Drug Abuse

Act.9 This legislation establishes the National Authority for the Campaign Against Alcohol and

Drug Abuse (NACADA). The mandate of NACADA includes facilitating, conducting, 6 UN. Doc. E ;CONF. 82/15 (1988);28 ILM .493(1989).7 See the Anti Narcotics Unit, available at http:// www.nacada.go.ke/ document. Accessed on 6th January 2014.8 Act Number 4 of 1994.9 Act Number 14 0f 2012.

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promoting and coordinating research on alcohol and drug abuse. In 2010, Kenya enacted the

Alcoholic Drinks Control Act.10 It was assented to on 13th August 2010. The act controls and

regulates the production, manufacture, sale, labeling, promotion, sponsorship and consumption

of alcoholic drinks.11

Notwithstanding the steps which Kenya has taken in order to comply with international law I n

fighting drug abuse and trafficking, drug abuse and drug trafficking is still on the high in

Kenya. . For example, close to four million Kenyans take alcoholic drinks, while 2.7 million

people smoke tobacco products. Up to 1.6million Kenyans chew miraa while over 300,000

smoke bhang.12Moreover, most Kenyans are still unaware of the negative effects of consuming

and abusing such drugs.13 And also, The International Peace Institution reported that ‘Profit from

the illicit drug trade had infiltrated Kenyan politics and these allegations linked officials to

international cocaine and heroin smuggling rings.’14

1.2 Statement of the problem

Drug abuse and trafficking are still on the high in Kenya in spite of all the efforts Kenya has put

to fight the menace. This research proposes to look into the effectiveness of Kenya’s measures to

fight drug abuse and drug trafficking.

1.3 Hypotheses

The reasons behind the high level of drug trafficking and drug abuse in Kenya are; the legal,

policy and institutional frameworks which Kenya has established to fight drug abuse are weak

and the enforcement measures taken to fight drug abuse in Kenya are inadequate.

1.4 Research questions

10 Act Number 222 of The Laws of Kenya.11 Ibid.12 Nation Correspondent, “40,000 Kenyans take heroin, says study,” Daily Nation, February 3,2014, pg 1813 Ibid.14Peter Gastrow, “Termites at Work: Transnational Organized Crime and State Erosion in Kenya,” New York: International Peace Institute. September 2011.pg 3, At http/www.frank-cs.org/cms/pdfs/IPI/IPI_TOC_Exec_Sum_12.2.12.pdf.

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1. What measures have the international community taken to address the drug problem?

2. How effective are these measures which the international community has taken?

3. What steps has Kenya taken in implementing the International Laws on drug abuse?

4. How effective are the steps Kenya has taken to fight the drug abuse menace?

1.5 Theoretical framework

This paper shall be governed and guided by the naturalist school of thought. All living things

have a nature that is specific and exclusive to them. The human nature is not perfect. It is

because of the laws of nature that human beings, being individual substances of rational nature,

are able to know what they should or should not do if they do not want to obliterate themselves

from the surface of the earth. Natural law provides human beings which some sort of guideline

which they ought to adhere to if they want to live happily and achieve their ultimate end.

Narcotic Drugs and Psychotropic Substances and other substances with similar characteristics

are dangerous because they distort the nature of man and deny human beings the chance to attain

their ultimate end. It is to this end that the state has been entrusted with the obligation to enact

laws .Law has been defined as a rule and measure of acts, whereby man is induced to act or is

restrained from acting. 15 These laws should focus on eliminating the abuse and trafficking in

drugs in a manner that is reasonable i.e., in a manner that respects all the rights attributable to

human beings by virtue of their nature. Justice has its source in nature thus; any law that is not in

sync with natural law is no longer a law but a perversion of the law.16

1.6 Literature review

15 St.Thomas Aquinas. Summa Theologica (1947, Benziger Bros. Edition), page 22516 Ibid., page 221

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There is not enough literature in this field. Not very many people in Kenya have launched out to

do thorough research in this field. Nevertheless, there are some aspects of other peoples writing

which are connected with this research. Peter Gastrow, a senior fellow and Director of Programs

at the International Peace Institute, seems to suggest that drug trafficking is on the high in Kenya

because the drug traffickers “Have developed strong links with members of the law- enforcement

agencies and the judiciary.”17This is apparently very true, however, it is not the whole truth. This

is due to the fact that a lot of evidence have been availed revealing frustrations experienced by

the law enforcement agencies and have got nothing to do with the position entertained by Peter

Gastrow.

In a typology report conducted by the typologies Experts Group, a body under MANAFATH

(Middle East and North Africa Financial Action Task Force), in order to be able to combat the

menace of drug abuse and drug trafficking, it suggests that it is necessary to understand the

nature of the crimes, its scope and resulting risks, and to identify the latest methods used in the

cultivation, smuggling and trafficking in narcotic drugs and psychotropic substances.18 This

report was based on the presumption that in order to fight the menace of drug abuse, one ought to

fully comprehend how the drug dealers operate. A good presumption but it does not give

suggestions of how this knowledge is to be specifically utilized.

In a survey conducted by NACADA(National Authority for the Campaign Against Alcohol and

Drug Abuse), A number of issues in relation to drug abuse were considered; The public

awareness, accessibility, availability and use of various drugs, the health and socio-economic

consequences of drug abuse, the perceptions, attitudes and behaviors related to drug abuse,

counseling treatment and rehabilitation and finally the interventions that will effectively deal

with causes and consequences of drug abuse in Kenya.19These considerations were aimed

towards, “guiding a policy formulation and to inform the design and implementation of

intervention programs.”20 But what they failed to include is what steps should be taken in

17 Supra, note 9 at page 3.18 The 2011 MANAFATH (Middle East and North Africa Financial Action Task Force) Typologies Report on "Illicit traffic in Narcotic Drugs and Psychotropic Substances and Money Laundering” .page 1 At http/www.menafatf.org/images/uploadfiles/illicit_Trafficking_and_ML_Eng.pdf.19 NACADA, “Rapid SITUATION ASSESSMENT OF THE STATUS OF DRUG AND SUBSTANCE ABUSE IN KENYA, 2012”.Nairobi.page 12, at http/www.nacada.go.ke/documents-and-resources/category/8-research-survey-findings.accessed on 5-2-2014.20 Ibid.

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implementing all these considerations. For it is quite clear that there is enough policies and

legislation in this area but still the drug menace is terrorizing Kenya.

1.7 Research Methodology

In gathering information for this paper, the internet will be very instrumental. This is because

most of the materials which are relevant to this research are; articles, journals, surveys,

conventions and statutes.

1.8 Preliminary chapter breakdown

Chapter 1

Introduction

In this part of my dissertation, I will include my research proposal, which includes the

introduction, statement of the problem, hypothesis, research questions, theoretical framework,

literature review, research methodology and the preliminary chapter breakdown.

Chapter 2

The response of the international community to drug abuse and trafficking

In this chapter, I will consider;

The actions taken by the international community to curb drug abuse and trafficking.

How effective are the measures which the International Community took.

Chapter 3

Enforcement of International Laws on Drug abuse by Kenya.

The focus of this chapter will be to look into;

What steps has Kenya taken in implementing the International Laws on drug abuse?

How effective are the steps Kenya has taken to fight the drug abuse menace?

Chapter 4

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Conclusion and Recommendations

This last chapter will draw conclusions and give recommendations based on the findings

of the study.

CHAPTER 2

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THE RESPONSE OF THE INTERNATIONAL COMMUNITY TO DRUG ABUSE AND

DRUG TRAFFICKING

2.1 Introduction

This chapter looks at a brief history of drug abuse in the world and thereafter considers the

various steps which the international community has, so far, taken in its fight against the drug

menace.

2.2 History of Drug Abuse

Human beings have used drugs for thousands of years. Drugs have been present in the life of

human beings for as long as the human beings have been around. Drugs have been utilized for

different purposes. Opium was known in ancient Mesopotamia five thousand years ago and its

medicinal properties were described in medical texts written on cuneiform tablets. Homer

described the brewing of opium and its offering as a beverage of hospitality in the Odyssey.

Chinese physicians prescribed the plant for gout, rheumatism, malaria, loss of appetite,

constipation and as an aid in child birth.21 This together with the chewing of coca leaves by

laborers extends back thousands of years.22 Other drugs were used for medicinal purposes,

religious ceremonies or recreational purposes.

Very few drugs have been illicit from the moment of their discovery or synthesis. From the

aforementioned, it is apparent that the older civilizations used drugs to make their lives better.

There were very few cases of drug abuse. Back then, there was no need to proclaim any drug as

illegal because, as L.N. Robbins suggests, drugs have been defined as illegal only as evidence for

problems resulting from their use appeared.”23 Thus, drugs considered in isolation are not illegal.

They are rendered illegal when human beings utilize them for improper purposes and, as a result,

they yield adverse consequences and pose a threat to the life of human beings.

21 Dr. Charles Davis ‘ Historical Aspects of Alcohol and other Drug Use.’copyright 1994.at www.fredonia.edu/athletics/health/davis/drug-book/chapter/htm. accesed on 13-2-2014.22 The Columbia Electronic Encyclopedia, ‘Drug addiction and Drug abuse-history,’ 6th edition copyright 2012, Columbia University Press. At www.Infoplease/encyclopedia/science/ drug- addiction-drug-abuse.htm. ( accessed on 13-2-2014).23 Lee n. Robins Ph D. ‘The Natural History of Drug Abuse’ Am J Public Health-1995 January; 85 (1) : 12-13. PMCID: PMC1615266, at www.ncbi.nlm.nih.gov/pmc 1615266/? report=classic&page=1. (Accessed on 27/10/2014).

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It was not until people learned how to process and refine drugs that abuse rose dramatically.24 It

is indisputable that the more anyone knows, the greater the desire to know more. During the past

100 years, advances in chemistry and pharmacology have allowed new drugs to be created from

old sources. Opium was processed and refined into morphine and heroin. Coca leaves were

processed and refined into cocaine and crack. Amphetamines, a new class of stimulants, were

synthesized in the laboratory, as were new hallucinogenic drugs, such as LCD, ecstacy and

MDA. These new drugs, and refined old drugs, are more powerful and addictive than any drugs

in the past. Many drugs now illegal have enjoyed a period of legal popularity. The drugs that

were once used to relieve physical pain, in religious ceremonies, for medicinal purposes, are now

valued for their ability to create illicit pleasures.

While the use of opium for dulling pain was well known by physicians worldwide, the real

problem began with the isolation of morphine from opium in 1804. Introduced commercially in

1827, morphine quickly became the drug of choice, particularly after the advent of the

hypodermic needle in 1853. During the American Civil War, morphine was used freely and

wounded veterans returned home with their kits of morphine and hypodermic needles. Opium

dens flourished. In 1906, America enacted its first national drug law called the Pure Food and

Drug Act of 1906. The Act required accurate labeling of patent medicines containing opium and

certain other drugs. In 1914, the Harrison Narcotic Act forbade sale of substantial doses and

opiates or cocaine except by licensed doctors and pharmacies.25 Waves of migration from Asia to

Europe, North America and Australia contributed to a marked shift in the apparent respectability

of drug use.26 In around 1906/07, the world produced around 4100 tons of opium, five times the

global level of illicit opium production in 2008. Opium was produced in a huge belt, stretching

from China to Indochina, Burma, India, Persia, Turkey and the Balkan countries. Despite a major

opium epidemic in China, at the end of the 19 th century, there was little interest in suppressing a

business that was so profitable for opium merchants, shippers, bankers, insurance agencies and

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25 Supra, note 2.26Jay Sinha, Law and Government Division, ‘ THE HISTORY AND DEVELOPMENT OF THE LEADING INTERNATIONAL CONTROL CONVENTIONS’ Prepared For The Senate Special Committee On Illegal Drugs, 21 February 2001. At http/www.parl.gc.ca/content/…/history – e.htm,( accessed on 27/102014).

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governments. To aggravate the situation even further, many national economies were as

dependant on opium as the addicts themselves.27

2.3 Response of International Community

By the advent of the 20th century, the global trade in drugs had reached an alarming level and

there was great need for a global solution. In 1906, a Liberal British government came to power

that opposed the India-China forced opium trade and the Chinese government simultaneously

began an extensive campaign against domestic opium smoking and production.28 The first

international drug convention, the International Opium Convention of The Hague29, was signed

in 1912 and entered into force in 1915. The Peace Treaty of Versailles30 contained a clause which

required all its signatories to adhere to the provisions of the International Opium Convention of

The Hague. The International Opium Convention dealt with raw and prepared opium. For

example, Article 1 of the convention required parties to “enact effective laws or regulations for

the control of the production and distribution of raw opium” unless such laws were already in

place.

The United Nations was established in 1945 to replace the League of Nations. The current legal

and administrative frameworks for international drug control are laid out in three international

conventions negotiated under the auspices of the United Nations. They are the Single Convention

on Narcotic Drugs, 1961 (Single Convention) and the Protocol Amending the Single Convention

on Narcotic Drugs, 1961 (Single Convention Protocol),31 the 1971 Convention on Psychotropic

Substances (Psychotropics Convention),32 and the 1988 Convention against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances (Trafficking Convention).33

2.3.1 The Single Convention on Narcotic Drugs, 1961 (Single Convention)34

27 A Century of International Drug Control, http//www.unodc.org/documents/dataandanalysis/studies/100_Years_of_Drug_Control.pdf, at page 8.28 Ibid., at page 9.29 League of Nations, Treaty Series, Vol. 8, P. 187.30 225 Parry 188; 2 Bevans 235; 13 AJIL Supp. 151, 385(1919).31 1961 18 UST 1407 ;520 UNTS 204; 14 ILM 302 (1975).32 1019 UNTS 175 ;10 ILM 261(1971).33 UN. Doc. E ;CONF. 82/15 (1988); 28 ILM .493(1989).34 1961 18 UST 1407; 520 UNTS 204; 14 ILM 302 (1975).

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By 1961, there were nine international legal agreements on narcotic drugs. Their overlapping

provisions were complex and this was compounded by the fact that several countries had not

signed and ratified all the treaties.35 The purpose of this Convention was to consolidate the

provisions of the previous conventions, bringing them under one legal regime. Indeed, the

Single Convention played a central role in the creation of the modern prohibitionist international

drug control system.

The process of consolidation of the existing international drug control treaties into one

instrument begun in 1948; but it was in 1961 that a workable third draft was ready to be

presented for discussion at a plenipotentiary conference. The conference began on 24th January

1961 in New York and was attended by 75 states, each with an agenda based on its own

domestic priorities.36

The objectives of the Convention were threefold, namely, the codification of existing multilateral

treaty laws into one single convention, streamlining the international drug control machinery and

extending of control to new areas. The Convention has 51 articles and four schedules. The

general obligations of the parties are the objects of article 4 of the Convention. The article

provides that parties shall give effect to and carry out the provisions of this Convention within

their own territories, and shall cooperate with other states in the execution of the provisions of

the Convention. Finally, parties shall limit the production, manufacture, export, import,

distribution of, trade in, use and possession of drugs, exclusively to medical and scientific

purposes, unless the Convention states otherwise.37 From this article we see the Convention did

not entertain a general prohibition of drug production. To ensure that states comply adequately

with its intentions under article 4, the Convention, under article 21, sets limitation of

manufacture and importation. To this effect, the convention, under article 21(1) provides that the

total of the quantities of each drug manufactured and imported by any state or territory in any

one year shall not exceed the sum of: the quantity consumed, within the limit of the relevant

estimate, for medical and scientific purposes; the quantity used, within the limit of the relevant

estimate, for the manufacture of other drugs, of preparations in schedule 111, and of substances

not covered by this convention; the quantity exported; the quantity added to the stock for the

35 Supra, note 6.36 Supra, note 6.37 Supra, note 14,Article 4.

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purpose of bringing that stock up to the level specified in the relevant estimate; and the quantity

acquired within the limit of the relevant estimate for special purposes.38 From all these sums,

there shall be deducted any quantity that has been seized and released for licit use, as well as any

quantity taken from special stocks for the requirements of the civilian population.39 Parties were

required to submit to the International Narcotics Control Board estimates of their drug

requirements and statistical returns on the production, manufacture, use, consumption, import,

export, and stock build-up of drugs. These are the subjects of articles 19 and 20 respectively.

Under article 19,the estimates shall be in respect of quantities of drugs to be consumed for

medical and scientific purposes; quantities of drugs to be utilized for the manufacture of other

drugs, of preparations in Schedule III and of substances not covered by this Convention; stocks

of drugs to be held as at 31 December of the year to which the estimates relate; quantities of

drugs necessary for addition to special stocks; the area(in hectares)and the geographical location

of land to be used for the cultivation of the opium poppy; approximate quantity of opium to be

produced; the number of industrial establishments which will manufacture synthetic drug; and

the quantities of synthetic drugs to be manufactured by each of the establishments referred to in

the preceding subparagraph.40

The convention also required Parties to develop increasingly punitive domestic criminal

legislation. Parties were to adopt distinct criminal offences punishable, if possible, by

imprisonment, for each of the following drug-related activities in infringement of the

Convention, that is, the cultivation, production, manufacture, extraction, preparation, possession,

offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever,

brokerage, dispatch, dispatch in transit, transport, importation and exportation. Furthermore, the

granting of extradition was considered "desirable”. This, they were to do subject to their

constitutional limitations. This is the subject of article 36 of the Convention. Under paragraph

two of article 36, parties may provide that such abusers undergo measures of treatment,

education, after-care, rehabilitation and social reintegration. The parties may allow these as an

alternative or in addition to conviction or punishment.41 Parties should, however, ensure that

their actions under article 36, paragraph 1, are in sync with article 38 of the Convention. Article

38 Supra note 16, Article 21(1).39 Supra note 16 Article 21(2).40 Supra note 16, Article 19.41 Supra, note 16, Article 36 paragraph 1.

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38 obliges party States to assist their drug addicts with medical treatment and rehabilitation. The

Parties shall give special attention to and take all practicable measures for the prevention of

abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and

social reintegration of the persons involved and shall co-ordinate their efforts to these ends. To

this effect, the parties shall promote training of personnel in all those areas and also foster

understanding of drug abuse problems and its prevention among persons, whose work so requires

and among the public.42 Earlier international narcotics treaties did not have any provision

creating similar obligations to parties despite the much entertained view that victims of addiction

needed to be assisted by treatment, after-care and rehabilitation. The minor recognition of

demand/harm reduction approaches, such as prevention through education, has been one of the

key criticisms of the Single Convention, and international drug control treaties in general. 43

Convention required Parties to abolish, over a maximum period of 15 years from the coming into

force of the Convention, all quasi-medical use of opium, opium smoking, coca leaf chewing, and

non-medical cannabis use. All production and manufacture of these drugs was also to be

abolished within the same time period. Only Parties for which such uses were "traditional" could

take advantage of the delayed implementation; for others, prohibition was immediate. As the

maximum time period ended in 1989, these practices are today prohibited and the drugs may be

used only for domestically regulated medical and scientific purposes.44

In the event of a dispute between the parties in relation to interpretation or application of this

convention, they shall resolve their dispute by negotiation, investigation, mediation, conciliation,

arbitration, recourse to regional bodies, judicial process or other peaceful means of their own

choice. And in the event that they fail to agree, they shall be referred to the International Court of

Justice for a decision.45

2.3.2 The Convention on Psychotropic Substances46

42 Supra, note 16, Article 38 paragraphs 1, 2 and 3.43 Supra note 7, at page 62.44 Article 49.45 Article 48.46 1019 UNTS 175; 10 ILM 261 (1971).

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The 1971 Convention was adopted so that the scope of international control could include

psychotropic substances. Psychotropic substances include amphetamine-type stimulants,

hallucinogens (such as LSD), sedative hypnotics and anxyolytics (benzodiazepines and

barbiturates), analgesics and antidepressants.

After World War II, Japan suffered a major epidemic of methamphetamine abuse, due to the

distribution of war time stocks. This problem was addressed by a major market crack-down in

1954, and the passage of very strict legislation. In Europe, amphetamine use had become

particularly widespread in Sweden and other Scandinavian countries, as well as in the UK, in the

post-war years. A growing methamphetamine problem was also reported from the USA in the

1960s.47 Most psychotropic drugs were not under any international legal control and this, as a

result, led to many people becoming addicts. Another fact which further aggravated the situation

was the fact that national systems of regulation differed widely. This served as a catalyst to

smuggling and trafficking of psychotropic substances. Thus, by mid 1960s, abuse and traffic of

psychotropic substances had become a global crisis which created the need for a global solution.

Negotiations of an international instrument that would regulate the use and traffic in

psychotropic substances began in the 1960s. In 1970, the CND (Commission on Narcotic Drugs)

discussed a draft treaty prepared by the UN Division of Narcotic Drugs on the International

Control of Psychotropic Drugs. There were some subsequent modifications by the CND.

Thereafter, this document became the basis for negotiations at the plenipotentiary conference

convened in Vienna on 11 July 1971.

Comparing the negotiation phase of the 1961 Convention on Narcotic Drugs to the 1971

Convention on Psychotropic Substances, one notices that the negotiation stage of the former was

smoother as parties involved in its negotiation entertained similar positions. While the

negotiations of the 1971 Convention were marred by conflicting interests, the Vienna

Conference was divided into two distinct groups, one group composed mainly of developed

states with powerful pharmaceutical industries and active psychotropic markets, while the other

group was composed mainly of developing states. The former were for keeping the new controls

of psychotropic substances to a bare minimum, proposing national as opposed to international

controls. They were also of the position that if there was to be a conflict between national law 47 United Nations Office on Drugs and Crime, ‘2008 WORLD DRUG REPORT’.United Nations Publications, Sales No E.08.xi.1 978-92-1-148229-4,at page 201.

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and international law, national law would prevail. The group that was mainly composed of

developing states pushed hard for strict international control measures.

Nevertheless, a compromise was eventually reached. The result was the 1971 Convention on

Psychotropic Substances which forms the basis of control of psychotropic substances today. The

Convention was adopted in 1971 and entered into force in August 1976. Due to the conflicting

interests at the negotiation stages, the 1971 Convention is much weaker than the 1961

Convention. The 1971 Convention consists of 33 articles. It is based on the 1961 Convention,

though it has some new creations.

Article 2 gives the scope of the Convention. It deals with the procedure through which a party, or

the WHO, would have a substance which is not yet under international control, being added to

any of the schedules of the Convention. The procedure would also enable a party or the WHO

have a substance transferred from one schedule to another if the party or the WHO has

information justifying the transfer; the article provide the procedure through which a substance

could be deleted from the schedules.48

Article 5 limits the use of psychotropic substances to medical and scientific purposes. This

limitation is similar to the one imposed on the use of narcotic drugs under the Single Convention.

Limitation of use of Schedule 1 substances is set out under article 7 of the Convention. The

article prohibits the use of substances in schedule 1, except for scientific and very limited

medical purposes by duly authorized persons in medical or scientific establishments which are

directly under the control of their governments or specifically approved by them.49 The amount

of supplies to duly authorized persons should be limited to the quantity required for this

authorization.50 The manufacture, trade, distribution and possession of Schedule 1 substances

should be under special license of prior authorization. 51 Substances in this Schedule include

Cathinone, Brolafetamine, Eticyclidine and Etryptamine.

For Schedules 11,111 and 1V, the Convention obliges each party to limit, by such measures as it

considers appropriate, the manufacture, export, import, distribution and stock of, trade in, and

48 Supra, note 26, Article 2.49 Supra, note 26, Article 7(a).50 Supra note 26, Article 7(d).51 1019 UNTS 175; 10 ILM 261 (1971), article 7(b).

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use and possession of substances in these Schedules to medical and scientific purposes. Article 3

does not permit the possession of the above mentioned substances except under legal authority.

In relation to packages and advertising, the Convention provides that each party shall require,

taking into account any relevant regulations or recommendations of the WHO, such directions

for use, including cautions and warnings, to be indicated on the labels where practicable and, in

any case, on the accompanying leaflet of retail packages of psychotropic substances, as in its

opinion are necessary for the safety of the user. Each party shall, with due regard to its

constitutional provisions, prohibit the advertisement of such substances to the general public.

The Convention obliges all Parties to maintain within their territories a system of inspection of

manufacturers, exporters, importers, and wholesale and retail distributors of psychotropic

substances and of medical and scientific institutions which use such substances. They shall

provide for inspections, which shall be made as frequently as they consider necessary, of the

premises and of stocks and records.52

The Parties shall furnish to the Secretary-General such information as the Commission may

request as being necessary for the performance of its functions and, in particular, an annual

report regarding the working of the Convention in their territories, including information on

important changes in their laws and regulations concerning psychotropic substances, and

significant developments in the abuse of and the illicit traffic in psychotropic substances within

their territories.53 The Convention under article 20, directs all parties to take all practicable

measures for the prevention of abuse of psychotropic substances and for the early identification,

treatment, education, after-care, rehabilitation and social reintegration of the persons involved.

In order to achieve this end, the parties shall, as far as possible, promote the training of personnel

in the treatment, after-care, rehabilitation and social reintegration of abusers of psychotropic

substances. The Parties shall also promote public understanding of the problems associated with

abuse of psychotropic substances and parties shall also promote public understanding of

measures for the prevention of abuse of psychotropic substances. The parties will achieve this

through trained personnel.54 Parties shall make arrangements at the national level for the

coordination of preventive and repressive action against the illicit traffic; to this end, they may 52 Ibid., Article 15.53 Ibid., Article 16 (1).54 Ibid., Article 20 paragraph 1,2 and 3.

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usefully designate an appropriate agency responsible for such coordination. Parties shall assist

each other in the campaign against illicit traffic in psychotropic substances and, in particular,

immediately transmit, through the diplomatic channels or the competent authorities designated

by the Parties for this purpose, to the other Parties directly concerned, a copy of any report

addressed to the Secretary-General under Article16 in connexion with the discovery of a case of

illicit traffic or seizure. The parties will also cooperate closely with each other and with the

competent international organizations of which they are members with a view to maintaining a

coordinated campaign against the illicit traffic. They will ensure that international co-operation

between the appropriate agencies is conducted in an expeditious manner and ensure that, where

legal papers are transmitted internationally for the purpose of judicial proceedings, the

transmittal be effected in an expeditious manner to the bodies designated by the Parties. This

requirement shall be without prejudice to the right of a Party to require that legal papers be sent

to it through the diplomatic channel.55 The Convention, while being alive to the constitutional

limitations of individual parties, directs the parties to punish any offences arising from actions

committed intentionally contrary to a law or regulation adopted in pursuance of its obligations

under the Convention. The Convention also directs the parties not to shy away from punishing,

by imprisonment, cases of serious offences.56 In the case of offenders who are abusers of

psychotropic substances, parties may consider either as an alternative to conviction or

punishment or, in addition to punishment, to let them undergo measures of treatment, education,

after-care, rehabilitation and social reintegration.57 The Convention seeks to ensure that parties

remain alive to the fact that reforming the offenders of any laws or regulations they have adopted

in enforcing the Convention is more important than subjecting them to punishment.

If the interest of public health and public welfare of a state are at stake as a result of infringement

of the laws and regulations which a party has adopted in enforcing the 1971 Convention, the

Convention permits them to take stricter measures than those provided in the Convention in

order to put the situation in check.58

55 Ibid., Article 2156 Ibid., Article 22 paragraph 1(a)

57 Article 22 paragraph 1b58 Ibid., Article 23

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2.3.3 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances, 198859

This Convention was adopted to crown the quest in search of a comprehensive international

framework on drug and psychotropic substance abuse. After the 1961 Convention and the 1971

Convention came into force, parties took measures, both regionally and nationally, to enforce

them. Meanwhile, a global problem was brewing. Illicit production of opium/ heroin and of coca/

cocaine continued rising through the 1980s, as did trafficking and abuse in these substances. In

addition, some psychotropic substances, notably the amphetamine- type stimulants, were starting

to be manufactured in clandestine laboratories in North America, Europe and South East Asia.

The situation was steadily and rapidly deteriorating and drug abuse was described as reaching

epidemic proportions in many parts of the world. All countries in the world seemed to be

vulnerable to drug trafficking and abuse, regardless of geographical location, political orientation

and stage of economic development. Amid such developments, concerns arose within the UN

and its main control- oriented members that the anti- trafficking efforts of the International Drug

Control System were compromised by the fact that certain nations were not parties to the

conventions and/or did not have domestic law enforcement systems adequate to combat illicit

trafficking.”60

It is against this backdrop that the United Nations Conference for the Adoption of a Convention

Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances met in Vienna from 25

November to 20 December 1988. The objective was to consider “the various aspects of the

problem [of illicit drug traffic] as a whole and, in particular, those not envisaged in existing

international instruments.”61 The draft treaty was finalized during the 1987 UN Conference on

Drug Abuse and Illicit Trafficking. Between 25 November and 20 December 1988, 106 states

met in Vienna to negotiate a final text. As a result, The United Nations Convention Against Illicit

Traffic in Narcotic Drugs and Psychotropic Substances, 1988 was adopted. The 1988

Convention, consisting of 34 articles, entered into force 2 years later on in November 1990. The

Convention, which is essentially an instrument of international criminal law, ‘has proven to be a

59 UN.Doc. E;CONF. 82;15 (1988);28 ILM .493(1989).60. Jay Sinha, Law and Government Division, ‘ THE HISTORY AND DEVELOPMENT OF THE LEADING INTERNATIONAL CONTROL CONVENTIONS’ Prepared For The Senate Special Committee On Illegal Drugs, 21 February 2001. At http/www.parl.gc.ca/content/…/history – e.htm,( accessed on 27/102014).61 Ibid., at page 10.

19

very powerful instrument in the international struggle against drug trafficking.’ The trafficking

Convention was passed to fill the air spaces that had been left after the adoption of the 1961 and

1971 Conventions and, as a consequence, reinforced and refined the quest of the international

community for a framework controlling the abuse and trafficking of narcotic drugs and

psychotropic substances.

Article 2 of the Convention presents its scope. Under this provision there are three aspects that

are apparent. Cooperation among parties, internal enforcement of the Convention and respect for

the sovereignty of other states. Cooperation among the parties is inevitable if the objective of the

Convention is to be achieved. The Convention provides that its purpose is to promote

cooperation among the parties so that they may address more effectively the various aspects of

illicit traffic in narcotic drugs and psychotropic substances having an international dimension.62

To this end, the Convention has various provisions which set forth ways in which cooperation

among states may be utilized. For example, parties shall afford one another the widest measure

of mutual legal assistance in investigation, prosecution and judicial proceedings in relation to

criminal offences established by the Convention. Mutual legal assistance may be offered for the

purpose of taking evidence or statements from persons, effecting service of judicial documents,

executing services and seizures, etc.63 Nevertheless, it is not always the case that mutual

assistance will be granted by a party upon request. A party will normally refuse to grant mutual

legal assistance if the request for it is not made in accordance with Article 7, if the requested

party considers that granting it would be prejudicial to its sovereignty, security, public order and

other essential interests, if granting it is contrary to the legal system of the requested party, and if

the domestic laws of the requested party prohibits its authority from granting such request. 64

Cooperation shall also be effected by establishing bilateral and multilateral agreements for the

purpose of establishing and maintaining channels of communication between their competent

authorities, cooperating with one another in conducting inquiries with respect to offences

established in accordance with the Convention, establish joint teams, taking into account the

need to protect the security of persons and operations involved, providing where appropriate,

necessary quantities for analytical or investigative purposes.65 Cooperation will also be used as a

62 Supra, Article 2 paragraph 1.63 Supra,Article 7 paragraph 1 and 2.64 Ibid., Article 7 paragraph 1565 Ibid., Article 9

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stepping stone for transit states (developing states) which will need assistance, including

financial assistance, for the purpose of reinforcing infrastructure needed for effective control and

prevention of illicit traffic.66 Parties may also cooperate to increase the effectiveness of

eradication measures.67 Parties shall cooperate with one another and take measures which they

deem appropriate in order to prevent the diversion of substances in Tables 1 and 2, materials and

equipments used for the purpose of illicit manufacture of narcotic drugs and psychotropic

substances.68 Table 1 includes Ephedrine, Ergometrine and Isosafrole, while Table 2 includes

Acetone, Acetic anhydrideand Anthranilic Acid. Cooperation is important because the menace of

drug abuse and drug trafficking is no longer specific to one country or a group of countries, but

the whole world is victim in this one. It is only through cooperation that parties will be able to

suppress illicit traffic by sea. To this end, if a party has reasonable grounds to suspect that a

vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic, it

may request the assistance of other parties in suppressing its use for that purpose. Further, if a

party has reasonable grounds to suspect that a vessel exercising freedom of navigation under

international law, and flying the flag or displaying the marks of registry of another party is

engaged in illicit traffic, it may so notify the flag state to take appropriate measures in regard to

that vessel. Any measure taken here must be in accordance with international law of the sea.69

Thus, only through concerted efforts can the whole world disembark this heinous ship. It is of

great importance to note that cooperation will not be rendered if granting it will be contravening

domestic law.70

Under article 2 of the Convention, parties are to also take legislative, administrative and other

similar measures in enforcing the fundamental provisions of their respective domestic legislative

system.71 Fulfilling national obligation is a stepping stone to achieving cooperative efforts and,

most importantly, the key objectives of the Convention. The Convention obliges parties to take

measures they deem appropriate to monitor the manufacture and distribution of substances in

Tables 1 and 2 which are carried out within their territory.72 Parties should ensure they have full

66 Ibid., Article 1067 Ibid., Article 14 paragraph 3a.68 Ibid., Article 12 paragraph 1 and Article 13.69 Ibid., Article 17(1,2 and 3)70Ibid., Article 9(1), article 7(15c) 71 Ibid., Article 272 Ibid., Article 12(8a)

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control of persons and enterprises engaged in manufacture and distribution of the substances in

Tables 1 and 2 and to ensure that license is obtained for places where such activities are carried

out and that licensees obtain the permit to conduct the activities. Parties also have a duty to

ensure that licensed manufacturers and distributors of the aforementioned substances do not have

possession of them in excess of the quantities for the normal conduct of business and the

prevailing market conditions.73 Parties shall establish and maintain a system to monitor

international trade in substances in Tables 1 and 2 in order to facilitate the identification of

suspicious transactions. If there is sufficient evidence to believe that the substances are being

utilized for the illicit manufacture of narcotic drugs and psychotropic substances, parties should

provide for their seizure and, in case the parties believe that their export or import are destined

for the illicit manufacture of narcotic drugs and psychotropic substances, they shall notify the

competent authorities and services of the parties concerned as soon as possible.74 In connection

with this, parties shall require that lawful exports and imports of narcotic drugs and psychotropic

substances be properly documented and that their consignments are not mislabeled.75 The

Convention states categorically that parties shall take eradication measures pursuant to its

provisions, being careful to ensure that the measures taken are not less stringent than the ones

contained in the 1961 Convention, the 1961 Convention as amended by the 1972 Protocol and

the 1972 Convention. These measures include eradication of illicit cultivation of and elimination

of illicit demands of narcotic drugs and psychotropic substances. These measures are to be taken

with a view to reducing human suffering and reducing financial incentives for illicit traffic.

Being aware that these measures are for the well being of human beings, parties should ensure

that the measures adopted shall respect fundamental human rights and shall take due account of

traditional licit uses, where there is historic evidence of such use, as well as the protection of the

environment.76 The Convention is not complete in itself and, thus, in order to forestall the effects

of this, it allows a party to adopt more strict and severe measures than those provided under it if,

in the opinion of the party, such measures are desirable or necessary for the prevention or

suppression of illicit traffic.77

73 Ibid., Article 12 paragraph 8b74 Ibid., Article 12 paragraph 9a and b75 Ibid., Article 16 (1) and (2) and article 12 (9c)76 Ibid., Article 14 paragraph 1,2 and 477 Ibid., Article 24.

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Another fundamental obligation that is the subject of paragraphs 2 and 3 of Article 2 relates to

the principles of sovereign equality and territorial integrity.78 States should not confuse

cooperation with interfering in the domestic affairs of each other. To this end, a party is to refrain

from undertaking in another party’s jurisdiction functions which are ‘exclusively reserved’ for

the authorities of that party by its domestic law.79 Such conduct is not in sync with the spirit of

international peace and unity and would seriously jeopardize the whole initiative. To this end, the

Convention has certain provisions that allude to this and they include Article 11, which provides

that any action that will be taken with the view of suppressing illicit trade by sea shall take due

account of the need not to interfere with or affect the rights and obligations and the exercise of

jurisdiction of coastal states in accordance with the law of the sea.80 Also, if a dispute should

arise between two or more parties relating to interpretation or application of this Convention, the

parties shall consult together with a view of the settlement of the dispute by negotiation, enquiry,

mediation, conciliation, arbitration, and recourse to regional bodies, judicial process or other

peaceful means of their own choice. Recourse may also be made to the International Court of

Justice if the aforementioned options are rendered fruitless.81

One of the ways in which the Convention aims to achieve its objectives is through declaring

certain acts as illegal and making it an obligation for a party to take measures as may be

necessary, subject to its constitutional principles and the basic concepts of its legal system, to

establish certain acts as criminal when committed intentionally. These acts are enlisted in Article

3, paragraph 1, of the Convention and they encompass the handling of narcotic drugs and

psychotropic substances, contrary to the provisions of the 1961 Convention, the 1961

Convention as amended and the 1971 Convention. The acts which the 1988 Convention proclaim

to be illegal which were not incorporated in any of the above conventions is the manufacture,

transport or distribution of equipment, materials or of substances listed in Tables 1 and 2

annexed to the 1988 Convention, knowing that they are to be used in or for the illicit cultivation,

production or manufacture of narcotic drugs or psychotropic substances. It is also an offence to

organize, manage or finance this offence.82 The commission of the offences under Article 3,

78 Ibid., Article 2 paragraph 279 Ibid., Article 2 paragraph 380 Supra, note 52 paragraph 11.81 Ibid., Article 3282 Ibid., Article 3(1,2)

23

paragraph 1, shall be liable to sanctions which take into account the grave nature of these

offences such as deprivation of liberty, pecuniary sanctions and confiscation. Parties may also, in

addition to these sanctions or in the alternative (this may be granted if the offence is of a minor

nature), subject such liable offenders to measures such as treatment, education, aftercare,

rehabilitation and social reintegration.83 A party shall ensure that its court and other competent

authorities having jurisdiction take into account all the factual circumstances enlisted under

Article 3, paragraph 5, which make the commission of the offences under Article 3, paragraph 1

grave.84

A party is under an obligation to take such measures as may be necessary to establish its

jurisdiction over the offences it has established in accordance with Article 3, paragraph 1, when

the offence is committed within its territory or on board a vessel flying its flag or an aircraft

which is registered under its laws at the time the offence is committed. Parties are allowed to,

under the Convention, to exercise criminal jurisdiction established by them in accordance with

their domestic laws.85

Any offence under Article 3, paragraph 1, shall be deemed to be included as an extraditable

offence in any extradition treaty existing between parties. A party can make extradition

conditional on the existence of an extradition treaty or not. Nevertheless, extradition shall be

subject to the conditions provided for by the laws of the requested party or by applicable

extradition treaties, including the grounds upon which the requested party may refuse

extradition.86

2.4 Impacts of the Three Conventions

The number of substances controlled under the 1961 Convention and the 1971 Convention has

risen steadily over the years; there are currently 119 narcotic drugs and 116 psychotropic

substances under international control. The 1971 Convention was less successful in the

beginning because majority of psychotropic substances are essential ingredients of widely

consumed prescription drugs. However, improvements in control procedures, resulting from the

83 Ibid., Article 3, paragraph 4a, b and c.84 Ibid., article 3 paragraph 5.85 Ibid., Article 4 paragraph 1 and 3.86 Article 6 paragraph 1 to 5.

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UN Economic and Social Council resolutions, have succeeded in preventing the diversion of

substances in Schedules 111 and 1V from international trade.87

The 1998 Convention has facilitated the implementation of measures such as judicial

cooperation, extradition, controlled deliveries and measures against money laundering. It has

also made it mandatory for states to control and monitor certain precursors, chemical and

solvents frequently used in illicit drug manufacture and have facilitated communication between

government authorities to identify suspicious transactions and prevent diversion.

2.5 Challenges of the Enforcement of the Drug Control Conventions

2.5.1 Health challenges

The 1988 Convention obliges parties to take measures to protect the health and welfare of their

populations. Governments must ensure the provision of narcotic drugs and of psychotropic

substances for medicinal and scientific purposes; they should provide services for the treatment

and rehabilitation of drug abusers and to establish effective measures to reduce the adverse

health and social consequences of drug abuse. Meeting these obligations constitutes a major

challenge for all governments, and is particularly difficult for less developed countries whose

governments are often struggling to provide primary health care for their populations. The cost

of health care has also been a major setback to the efforts by states to meet their obligations

relating to health under the conventions.88

2.5.2 Legal challenges

The conventions are not self executing, since their provisions must be incorporated into

domestic law by legislative acts. Nevertheless, it remains a principle of international law that the

definition of offences lays solely within the powers of the state. The process of translating legal

obligations from the international sphere to the national sphere may introduce discrepancies

between national legal provisions and international norms and may also be colored by political

87 Report of The International Narcotics Control Board 2008’ (E/INCB/2008/1) http://www.unodc.org/documents/southeastasiaandpacific/2009/02/INCB/INCB_Report_2008_English.pdf at page 488 ‘Report of The International Narcotics Control Board 2008’ (E/INCB/2008/1) http://www.unodc.org/documents/southeastasiaandpacific/2009/02/INCB/INCB_Report_2008_English.pdf at page 9

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considerations. Thus, the International Narcotics Control Board acknowledges the respect

accorded to the national legal systems under the conventions, but is concerned that differing

interpretations of international obligations are weakening the overall efficiency of the control

system.89

2.5.3 Challenges of Globalization

Globalization has been facilitated by successive technological revolutions that have cut the cost

of transportation, information and communications, bringing benefits to many. There are now

more opportunities for developing countries to become integrated into the world economy, but

the process is imperfect and incomplete and the benefits have been unevenly distributed. The

educational and knowledge requirements imposed by global technologies and markets may

marginalize or exclude those who lack the appropriate background, and that potentially limits the

availability of the new technologies to a few countries, social groups and enterprises.90 Other

problems such as poverty, climate change, environmental degradation, flooding, drought and

search for new resources of energy have resulted in shortage of staple foodstuffs and inflated

prices of raw materials. The consequences of these may lead to political instability. To this end,

these developments pose serious challenges to the capacity of governments to fulfill their

international drug control obligations.

2.6 Conclusion

The three Conventions which the international community adopted are masterpieces. These

Conventions were adopted to respond to a call for a global solution to a world that was being

consumed by the menace of drug abuse and trafficking. These Conventions were neither the first

nor the last international legal instruments which the international community adopted in its

attempt to remain on its feet in the battle ground against drug abuse and trafficking. What is

indisputable is the central role that they play. The first Convention to be enacted was the 1961

Convention on Narcotic Drugs. Its sole focus is combating any activities involving the

production, distribution and use of narcotic drugs. It was amended by the 1972 Protocol to

encompass also treatment and rehabilitation of drug abuse and addiction. The Convention that

89 Ibid., at page 490 ‘United Nations, Economic Commission for Latin America and the Carribean Globalization and Development ’(LC LG.217(SES.29/3), report prepared for the twenty ninth session of the commission (2002)

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followed it was the 1971 Convention on Psychotropic Substances. This Convention was also a

major step ahead for international drug control and continues to form the basis for the control of

psychotropic substances today. It placed a number of amphetamine-type stimulants,

hallucinogens (such as LSD), and sedative hypnotics and anxiolytics(benzodiazepines and

berbiturates), analgesics and antidepressants under international control. The third Convention is

the 1988 Convention on Narcotic Drugs and Psychotropic Substances. This Convention was

adopted to provide a guideline for party states on how they should organize their domestic law

enforcement systems in a manner that makes them effective to combat illicit trafficking. The ball

is now in the court of the parties to the Conventions to enforce the provisions of these

international legal instruments.

Chapter 3

Enforcement of International Laws on Drug abuse in Kenya

3.1 Introduction

Drug and substance abuse is a very intricate field. It is so dynamic that in order to fight it, one

needs to approach it from very many dimensions the objectives of which are very similar, that is,

the definitive burial of drug and substance abuse so that it may no longer vex humanity again. In

order for this to happen, the menace needs to be fought at two planes, the international plane and

the national plane. Efforts to face this menace head on at the international level culminated in

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three conventions, namely, The Single Convention on Narcotic Drugs 1961,91 1971 Convention

on Psychotropic Substances92 and the United Nations Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances.93 Their effectiveness is felt once states, which are

parties to them, domesticate them within their jurisdictions and take the necessary steps to ensure

they fully enforce the Conventions.

This chapter discusses the various legislative, institutional and policy measures which Kenya has

taken in implementing these international instruments.

In Kenya, the attack in the battlefield is rendered threefold, namely, supply reduction, demand

reduction, and harm reduction. Supply reduction means any institutions, policies and strategies

aimed at streamlining the production and trade in drugs.94 Demand reduction means any

institutions, policies and strategies aimed at decreasing the need for drugs.95 Harm reduction

means the policies and strategies geared towards the treatment, care and rehabilitation of addicts.

3.2 Legislative Measures

Kenya enacted the Narcotic Drugs and Psychotropic Substances Act in 1994 as one of the steps

in order to implement the international conventions on narcotic drugs and Psychotropic

substances. The act is one of the supply reduction measures as its main objective is to streamline

production and trade in drugs.

3.2.1 The Narcotic Drugs and Psychotropic Substances Act

Kenya enacted the Narcotic Drugs and Psychotropic Substances Act, 1994, in order to make

provision with respect to the control of the possession of, and trafficking in, narcotic drugs and

psychotropic substances and cultivation of certain plants.96 It also provides for the forfeiture of

property derived from, or used in, illicit traffic in drugs and psychotropic substances. 97

91 520 UNTS 204; 18 UST 1407 ; 14 ILM 302 (1975).92 1019 UNTS 175; 10 ILM 261 (1971).93 UN, Doc. E/ CONF. 82/ 159 (1988); 28 ILM. 493 (1989).94 Section 2 of National Authority For The Campaign Against Alcohol and Drug Abuse Act No. 14 of 2012, L.N 89/ 2012.95 Ibid.96 Ibid., section 3.97 Ibid., section 4.

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The Act prohibits any form of possession of narcotic drugs and psychotropic substances. This is

in sync with the provisions of the Single Convention on Narcotic Drugs, 1961 (Single

Convention) and the Protocol Amending the Single Convention on Narcotic Drugs, 1961 (Single

Convention Protocol),98 the 1971 Convention on Psychotropic Substances, (Psychotropics

Convention).99 Possession of narcotic drugs and psychotropic substances is a crime. If the

person is in possession of cannabis, then he will be liable to imprisonment for 20 years, unless he

can establish that he possesses the cannabis for his own consumption for which he shall be liable

to 10 years imprisonment.100 Being in possession of any other narcotic drug or psychotropic

substance invites a more severe punishment. If one can show that it is for his own consumption,

then he shall be liable to 20 years imprisonment failure to which he may be liable to not less than

one million shillings or three times the market value of the narcotic drugs and psychotropic

substances, whichever is greater or to imprisonment for life or both such fine and

imprisonment.101 The burden of proof in these cases is beyond reasonable doubt.

The Act prohibits possession of narcotic drugs and psychotropic substances for the purpose of

smoking, inhaling, sniffing or otherwise using them. The same applies to opium. The

manufacturing, production, sale or distribution of any narcotic drugs or psychotropic substances

in a manner that contravenes the Act is prohibited. Any infringement of these prohibitive

provisions shall amount to a criminal offence and invites a fine of two hundred and fifty

thousand shillings or imprisonment for a term not exceeding ten years or both such fine and

imprisonment.102 Any narcotic drugs and psychotropic substances found in the possession of any

person or in a particular place without legal authorization or where an offence is committed in

respect to them, shall be forfeited to the government. 103

Any person who cultivates or permits the cultivation of prohibited plants shall be guilty of an

offence. If the person cultivating is the holder of a lease, license or permit, and did so with the

permission of the landlord, then the court shall also order the forfeiture of the land, but if the

98 1961 18 UST 1407; 520 UNTS 204; 14 ILM 302 (1975)99 1019 UNTS 175;10 ILM 261 (1971).100 The Narcotic Drugs and Psychotropic Substances Act, Number 4 of 1994, section 3(2a).101 Ibid., Section 3(2b).102 Ibid., Section 5(1).103 Ibid., Section 7(b).

29

landlord did not consent, then the court shall order for the land to revert to its owner. If the land

belongs to the government, then it shall revert to the government.104

An owner of land should inform the police post nearest to his place of residence or business or to

the land, of cultivation on his land of any prohibited plants lest the burden of proving that he did

not consent or cooperate in cultivating the plant shall be on him.105 An owner includes a person

who is a joint right holder.106

Medical practitioners, dentists and surgeons can also be held liable under the Act if they

administer, sell or supply narcotic drugs and psychotropic substances for any other purpose other

than treatment. Any medical practitioner, dentist or surgeon who infringes this provision shall be

liable to a fine of not less than 250,000/= or imprisonment for a term not exceeding ten years or

both;107 and they shall lose their license or registration to practice their trade within Kenya.108

According to international law, narcotic drugs and psychotropic substances are only to be

permitted for medical use and scientific research. To that end, states are obliged to have a

regulated means of handling these narcotic drugs and psychotropic substances both in relation to

their production, manufacturing and distribution as well as their import and export.109 Thus under

section 16, the minister shall appoint a board to carry out these functions.

Part V provides for restraint order, forfeiture of property and proceeds of property. The Attorney

General may apply to the High Court ex parte or otherwise, for a restraining order in respect of

all or any of the goods or the property of a person where there are reasonable grounds to believe

that he has committed an offence and investigations began.110 A restraining order granted by the

court shall render all transfers of that property during the period when the restraint order is in

force, void.111 The order shall remain until revoked by the court or the property is forfeited by the

government.112 Failure to comply with a restraint order is a crime.113

104 Ibid., Section 7(2 and 3).105 Ibid., Section 8a.106 Ibid., Section 8c.107 Ibid., Section 13.108 Ibid., Section 15.109 Supra, note 1, Article 4(c) and note 2, Article 5.110 Ibid., Section 22.111 Ibid., Section 23.112 Ibid., Section 29.113 Ibid., Section 30.

30

The Act focuses on international cooperation in its Part VI. The cooperation shall be

instrumental, especially in relation to investigations and proceedings under the Act. The Attorney

General may request an appropriate authority of another country to arrange for, inter alia, a

person from that country to come to Kenya to assist in investigation proceedings, evidence to be

taken, or information, documents or articles to be produced or obtained in that country.114

The minister may make regulations generally for carrying out the purposes of the Act.

The enactment of the Act was a major progress in the fight against the drug menace in Kenya.

Even though the Constitution of Kenya, under Article 2(6), provides that any convention or

treaty ratified by Kenya shall form part of the laws of Kenya under the Constitution, there is still

a need for parliament to enact legislation which brings these international law provisions within

the national sphere. The 1994 Narcotics drugs Act has a number of provisions which gives

legislative strength and thus easy enforcement of the international laws on narcotic drugs and

psychotropic substances. This is very much in accordance with Article 2 of the United Nations

Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988115 which

provides that in carrying out their obligations under the Convention, parties shall take necessary

measures, including legislative and administrative measures, in conformity with the fundamental

provisions of their respective domestic legislative system. The 1994 Act came at a time when

Kenya was facing a drug abuse crisis. The ANU was very much ineffective without a legislation

to guide it. The Act contains provisions which criminalize possession and traffick in narcotic

drugs and psychotropic substances, provisions for establishment of rehabilitation centres,

provisions regulating the manner in which narcotic drugs and psychotropic substances are to be

utilized for medical purposes. The Act also provides for international Cooperation in fighting the

drug menace. All these provisions have been very instrumental so far in fighting drug abuse.

Nevertheless, the Act is still far from perfection. It does not have any provisions the production

and use of precursor chemicals. Precursor chemicals may be used in the illicit manufacture of

narcotic drugs and psychotropic substances. The act also does not seem to recognize the role of

scientific research in fighting the drug menace. There is no provision on scientific research

under the act, for example, the setting up of a research fund for the ongoing research into drug

114 Ibid., Section 59.115 UN. Doc. E/CONF. 82/15 (1988); 28 ILM. 493 (1988).

31

abuse. The act seems to focus a lot on criminalizing drug abuse and very little attention has been

accorded to rehabilitating offenders, diversion of offenders from the criminal justice system to a

treatment programme or the setting up of facilities for detoxification, management and

rehabilitation of drug offenders.

3.3 Institutional Measures

Under this measure, there is the establishment of the Anti- Narcotics Unit and The National

Authority and Campaign against Drug Abuse.

3.3.1 The Anti Narcotics Unit

This unit was established in 1983 within the Criminal Investigation Department. It was charged

with enforcing the laws related to drugs. After the enactment of the Narcotic Drugs and

Psychotropic Substances Act, it was the body which enforced it. Its key duties are, investigation

of drug offences, detecting and seizing of illicit drugs, apprehending and prosecuting drug

offenders, gathering, analyzing and disseminating drug related intelligence, maintaining a

database on drug- related cases, liaising with local and international drug enforcement

agencies.116

It has about one hundred specially trained officers who are deployed in nineteen stations within

the republic of Kenya They cover airports, vulnerable border points and urban towns with

prevalent cases of drug crime.117 Its officers are knowledgeable in all aspects related to drugs and

are well equipped. Recently, it has been revamped with increase in personnel and equipment to

prevent and detect illicit drugs. It also has an enhanced informer networking system and

intelligence lead collection of information.118

The ANU knows that the war against drug abuse must involve concerted efforts. In order to

shield the Kenyan border and the coast, the ANU works hand in hand with Anti Terrorism Police

Unit, The Department of Immigration and the National Intelligence Service. Fairly large scale

cannabis cultivation occurs in the Lake Victoria Basin, in the Central highlands around Mt.

Kenya, and along the coast. A concerted effort with the Kenya Wildlife Service enables the 116 See http:// www.nacada.go.ke/about/stalkholders(accessed on 19th June 2014).117 http:// www.goinghomedotcom.org/library/anu.html(accessed on 5th June 2014).118 http://www.nacada.go.ke/documents-and-resources/category/14-plenary-conference?download=61:conference-2013.(accessed on 19th June 2014).

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conducting of aerial surveys that will be capable of identifying significant cannabis producing

areas.119 Co- operation with the local community is also inevitable. The Anti Narcotics Unit is

charged with the enforcement of the Narcotic Drugs and Psychotropic Substances Act.120

The ANU together with the Narcotic Drugs and Psychotropic substances act help to achieve the

objectives of supply reduction.

3.3.1.1 Impacts of Supply Reduction Strategies

The level of drug trafficking has reduced to some extent.. This is true based on the tables of

comparative figures between 2009 and 2012 presented by the 2012 survey conducted by

NACADA. It indicates that cases of detection and arrests of persons handling, possessing,

trafficking, cultivating or using narcotic drugs and psychotropic substances has reduced since

2009. For in 2009, the sum total for all these was 5,541 while in 2013, it was 1,520.121 There may

be a flip side of the coin to this, for a reduction in detections and arrests can also imply that the

drug syndicates have stepped up their game to a sophisticated level, making it difficult for the

anti narcotics unit to keep up with them.

Seizures of heroin and cannabis (and its derivatives) continued to decline from 2005 levels,

while seizures of cocaine increased over 2005. The comparative figures of 2009 to 2013 show

that persons arrested for possessing drugs reduced from 5039 in 2009 to 1344 in 2013, persons

arrested for handling drugs reduced from 79 in 2009 to 16 in 2013, persons arrested for drug

trafficking reduced from 303 in 2009 to 132 in 2014. The ANU concentrates its anti-heroin

operations at Kenya's two main international airports. There was a sharp decrease in cannabis

seizures for 2006. Kenyan authorities seized 5,144 kilograms of cannabis and its derivatives in

2006 and arrested 2,584 suspects, down from 50,844 kilograms seized in 2005. The ANU

continued to operate roadblocks for domestic drug trafficking interdiction and is pursuing a

variety of policy initiatives for more effective coordination with other government agencies.

Seizures of cocaine and arrests for cocaine trafficking increased. Kenya seized 23 kilograms of

cocaine in 2006 and made six arrests, compared to 10 kilograms seized in 2005. In March 2007,

119 KENYA: 2006 INTERNATIONAL NARCOTICS CONTROL AND STRATEGY REPORT. 120 Act Number 4 of 1994 (cap 245).121 NACADA, “Rapid SITUATION ASSESSMENT OF THE STATUS OF DRUG AND SUBSTANCE ABUSE IN KENYA, 2012”.Nairobi. at http/www.nacada.go.ke/documents-and-resources/category/8-research-survey-findings.(Accessed on 5-6-2014).

33

UNODC was part of an operation to destroy a record 1.1 tone consignment of cocaine seized in

December 2004. The cocaine, with a street value of about US Dollars 100 million in Europe or

North America, was incinerated by order of the High Court of Kenya. The Government of Kenya

led the operation in cooperation with experts from the USA and UK, while UNODC advised on

safe disposal of the cocaine.122

The reinforcement of security at Jomo Kenyatta International Airport (JKIA) led to a string of

cocaine and heroin seizures, most of which were from flights originating from West Africa. This,

in as much as it has reduced the amount of drugs being trafficked via the airports, has also

prompted the syndicates to opt for land routes, the porous Kenyan borders and sea fronts. Other

new methods employed now are postal and commercial services. Some officials also allege that

the syndicates have now opted for private airstrips.123

3.3.1.2 Challenges facing Supply Reduction

3.3.1.2.1 Corruption

Drug traffickers control enormous wealth and are allegedly insulated by top echelons in both the

police and the upper levels of the government. Corruption remains a significant barrier to

effective narcotics enforcement at both the prosecutorial and law enforcement level. Despite

Kenya’s strict narcotics laws that encompass most forms of narcotics- related corruption, reports

continue to link public officials with narcotics trafficking.

3.3.1.2.2 Weaknesses of the law

Another problem is with the law. The Act has loopholes especially in regard to precursory

drugs. The act does not have any provisions on precursory drugs which may be used in the illicit

manufacture of Narcotic drugs. Another problem apparent from the Act is that it focuses on hard

drugs while other social drugs, which are equally ravaging the society, are excluded.124

122 UNODC Annual Report 2007. At page 28.123 http://www.nacada.go.ke/documents-and-resources/category/14-plenary-conference?download=61:conference-2013 (accessed on 5-6-2014)124 Cornelius Noolo Kimilu: ‘SOLVING DRUG AND SUBSTANCE ABUSE PROBLEMS AMONG THE YOUTH IN KENYA’, at pg 41, a Research Paper Presented in Partial Fulfillment of the Requirement for Obtaining Degree of Masters of Arts in Development Studies, Institute of social studies, Graduate School of Development Studies, at http://thesis.eur.nl/pub/9669/Kimilu2005SolvingDrugSubstanceAbuseYouthKenya.pdf(.accessed on 5/6/2014).

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3.3.1.2.3 Kenya, a transit point

Kenya is strategically located along a major transit route thus has become a significant transit

point for heroine and hashish as well as cocaine destined for Europe or North America and for

the Methaqualone originating from India and re- exported to South African Countries. A string

of cocaine and heroin seizures at Jomo Kenyatta international Airport (JKIA) highlights the

continuing drug traffic problem in Kenya.125 The rise in trafficking is easy considering both the

geographical location and the importance of the country as a commercial and transportation hub.

As a consequence, these drugs find their way into the Kenyan market.

3.3.1.2.4 Operational infrastructure

There is also a problem of operational infrastructure, which is a problem triggered by shortage of

resources. The police argued that one of the challenges they experience is inadequate equipment

and financial funding.126 This also is closely connected to a major problem facing the police and

that is the inability to keep up with the constantly evolving devices of drug traffickers. Drug

traffickers device desperate and creative methods that make the detection of drugs difficult.

3.3.1.2.5 Victimless crime

Drug related offences are often perceived as victimless crimes, unlike, for example, robberies,

and it is difficult to acquire information to combat such offences, particularly when hampered by

lack of resources, including financing.127

3.3.1.2.6 Data Availability

This is one of challenges facing supply reduction because even though the government of Kenya

is keen to focus on issues of supply reduction, efforts were hampered by budgetary constraints,

since insufficient data was available to convince the government that supply reduction should be

accorded budgetary priority.128

125 Supra, note 31.126 ‘Role of National Police Service in Enforcing Policy and Laws on Narcotic Drugs,’ a presentation by GATWANJERU D. KARABA, HSC ASSISTANT COMMISSIONER OF POLICE at http://www.nacada.go.ke/documents-and-resources/category/14-plenary-conference?download=61:conference-2013. (Accessed on 25-6-2014)127 UNODC ‘Report on the Expert Round Table for Eastern Africa’ (Nairobi, 22-24 September, 2008) . The Paris Pact Initiative. A partnership to counter traffic in and consumption of Afghan opiates.128 Ibid.

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3.3.1.2.7 On Supply Reduction Measures That Led To The Destruction Of MV Bushehr

Amin Darya

The ship Mv Bushehr Amin Darya or Al Noor was blown up on 29/8/2014 in the Indian Ocean

after it was caught with 370kgs of heroine worth over USD 11.3 million. The president of

Kenya, honorable Uhuru Kenyatta oversaw the destruction. The president said that the move was

to serve as a warning to those bent on ruining the lives of young Kenyans.129 Nevertheless, this

move, which was supported by the chairman of NACADA, was contrary to a court order that had

been issued by a magistrate’s court halting the destruction. An attempt by the Director of Public

Prosecution to have the order reviewed by the High Court at Mombasa was declined as the judge

of the Honorable Court, Justice Odero, did not find any ‘convincing reason to do so’. The Judge

said the destruction of the ship should await the completion of the trial of nine foreigners and

three Kenyans accused of trafficking in the drug aboard the vessel that was underway in the

magistrate’s court. According to the Judge, this technicality, together with safety and

environmental considerations forced the delay in the destruction. 130

The destruction of MV Bushehr by the executive, even though it may have appeared to be a good

gesture in the eyes of the Kenyan public, has a number of legal implications. Under article 192 of

the United Nations Convention on the Law of the Sea,131 states have the obligation to protect and

preserve the marine environment. One of the reasons for issuing the order was because of safety

environmental considerations. Nevertheless, the executive was not in any way concerned with

issues of marine pollution. The destruction was also in disregard of the Environmental

Management and Coordination Act132 as there was no environmental impact assessment carried

out before the destruction of the ship. The act was also unconstitutional because the Executive

ignored a court’s order, this was contrary to the principle of separation of powers.

Destruction of illicit drugs is an effective measure in the fight against drug abuse, but the state in

doing this should not turn its back against other menaces facing the country like Environmental

pollution.

3.3.2 The National Authority and Campaign against Drug Abuse129 Http//www.M.worldmaritmenews.com/ newsitem-135671.(accessed on 29/10/2014).130 Http//www.in2eastafrica.net/president-Kenyatta-Oversees-blasting-of-drug-ship/(accessed on 29/10/2014).131 1833 UNTS 3 [1994] ATS 31;21 ILM1261 (1981).132 Act No.8 of 1999.

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3.3.2.1 Brief History

This authority first materialized via the Gazette Notice number 284 of 27th March, 2001 as the

National Agency for the Campaign against Drug Abuse (NACADA). Its chief purpose then was

to engage in public education campaign against drug abuse, especially among the youth in

schools and other learning institutions. Back then, it was not under the management of a board. It

was not until May 2006 that an advisory board was established. It was subsequently transformed

into the National Campaign against Drug Abuse Authority (NACADA Authority) under the

state’s Corporation Act133 published in the Kenya Gazette of 29th June 2007.134 Passing into law

of the National Authority and Campaign against Drug Abuse act, 2012 enhanced the mandate

of NACADA.135

3.3.2.2 The National Authority and Campaign against Drug Abuse Act

This Act establishes the National Authority and Campaign against Drug Abuse also known as

NACADA. NACADA is a body corporate with perpetual succession and a common seal, in its

corporate name, is capable of suing and being sued, purchasing or otherwise acquiring holdings,

charging and disposing movable and immovable property in and out of Kenya, borrowing or

receiving grants and doing or causing to be done or performing all such other things or acts for

the proper performance of its functions under the Act as may be lawfully done or performed by a

body corporate.136

Its management is vested in a board whose chairperson shall be appointed by the president with

the approval of the National Assembly.137 The functions of the board include ensuring proper and

efficient exercise of the powers and performance of the functions of the Authority, approving the

estimates of the revenue and expenditure of the Authority, and performing such other functions

as are provided for under the Act or any other written law.138

The Act, in section 5, outlines the powers of the Authority. They include; carrying out public

education on alcohol and drug abuse directly and in collaboration with other public or private

133 Legal Notice No. 140.134 http// www.nacada.go.ke/about,(accessed on 5/6/2014).135 Act No.14 of 2012, L.N.89/2012.136 Ibid., section 4(2)137 Ibid., section 6138 Ibid., section 8

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bodies and institutions, coordinating and facilitate public participation in the control of alcohol

and drug abuse, coordinating and facilitating interagency collaboration and liaison among lead

agencies responsible for alcohol and drug demand reduction, collaborate with other lead agencies

to facilitate and promote the monitoring and surveillance of national and international emerging

trends and patterns in the production, manufacture, sale, consumption, trafficking, promotion of

alcohol and drugs of abuse, collaborate with other lead agencies in order to provide and facilitate

the development and operation of rehabilitation facilities, programmes and standards for persons

with substance use disorders, subject to any other written law, license and regulate operation of

rehabilitation facilities for persons with substance use disorders, coordinate and facilitate in

collaboration with other lead agencies and non-state actors the formulation of national policies,

laws and plans of action on control of alcohol and drug abuse and facilitating their

implementation, enforcement, continuous review, monitoring and evaluation, develop and

maintain proactive cooperation with regional and international institutions in areas relevant to

achieving the Authority’s objectives, in collaboration with other public and private agencies,

facilitate, conduct, promote and coordinate research and dissemination of findings on data on

alcohol and drug abuse and serve as the repository of such data and, prepare, publish and submit

an alcohol and drug abuse control status report bi-annually to both Houses of Parliament through

the Cabinet Secretary, NACADA will assist and support county governments in developing and

implementing policies, laws, plans of action on control of drug abuse and finally it will carry out

such other roles necessary for the implementation of the objects and purpose of this Act and

perform such other functions as may from time to time, be assigned by the Cabinet Secretary.

NACADA focuses on prevention as a method of countering drug and substance abuse. The key

components of this strategy are geared towards changing people’s perception, beliefs,

expectations and interventions with a vision of enhancing the capacity of youth to make

informed decisions and choices on issues of drugs. The campaign seeks to raise public awareness

on the benefits of demand and supply reduction of substance abuse.

One area in which NACADA has spent a lot of time and resources is research. It conducted

surveys in 2007 and 2012, Namely, Rapid Situation Assessment Survey of The Status of Drug

and Substance Abuse in Kenya, 2007, and Rapid Situation Assessment Survey of The Status of

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Drug and Substance Abuse in Kenya, 2012.139 The aim of the surveys was to determine the

current trends in alcohol and drug abuse to inform evidence based interventions. The findings of

the 2012 survey demonstrate clear rural-urban differentials in terms of knowledge of the various

drugs and substances of abuse. It also unearthed that generally, Christians have a higher total

awareness level of alcohol products compared to those professing the Islamic faith. This is

expected given the religious prohibition of alcohol in Islam. Compared to bhang products, there

is a relatively limited awareness level of cocaine and heroin. Total awareness levels of cocaine

and heroin are highest in Nairobi and the coast regions. In terms of gender, there are differences

in awareness levels with more men showing a higher level of awareness compared to women.

These and many other findings were unraveled in the 2012 survey.

One of the functions of NACADA is to coordinate public education and awareness campaigns

against alcohol and drug abuse. The findings of the survey has helped and will help the

NACADA to determine awareness, accessibility, availability and use of alcohol and drugs in

Kenya, to establish the health, social and economic consequences of alcohol and drug abuse in

Kenya, to identify perceptions, attitudes and behavior related to alcohol and drug abuse in

Kenya, to establish trends in alcohol and drug abuse and traditional practices which regulate

production and consumption of various drugs in different communities in Kenya, to determine

the extent of chemical dependence and perceptions related to counseling, treatment,

rehabilitation and re-integration of persons with substance use disorders, to identify interventions

that can be put in place to deal with causes and consequences of alcohol and drug abuse in

Kenya.

3.3.2.3 Impacts of NACADA’s Demand Reduction Strategies

Demand reduction comprises interventions which are aimed at decreasing the demand for drugs

at an individual or at a collective level. Interventions aimed at reducing the harmfSul

consequences of drug use are also included. The scope of demand reduction intervention is wide

and consists of many facets. At one end, of the continuum, preventive action aims at not letting a

demand for drug arise at all, having a wide range of diverse actions targeted at large groups, e.g.,

outreach work, treatment, prevention of HIV infection and AIDS.

139 Supra, note 25

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NACADA has been conducting a lot of research in different parts of the Kenya, therefore,

information on the status of alcohol and drug abuse is attainable. Some survey reveals the most

abused as well as the least abused drugs thus enhancing use information based solutions to tackle

the problem.

The surveys conducted by NACADA 2012, showed a drop in the use of drugs from 48.3 percent

in 2007 to 37.1 percent in 2012. Also data from those aged between 10 – 14 years and those

between 15 – 65 years reveals that there are gains that have been made since the 2007 Rapid

assessment survey. The indicators show a decline in the use of alcohol, drugs and substances of

abuse. By focusing on different individual groups, providing solutions that are best suited to the

nature of the problems of each individual group, has put Kenya on a path towards a drug free

future. The different groups include the youth, the education sector, religious organizations,

media sector, religious organizations and nongovernmental organizations.

Demand reduction has also made it possible to combat alcohol and drug abuse within the

working places, by coming up with policies which will address issues of preventive education.

3.3.2.4 Harm Reduction.

International harm reduction Association defines harm reduction as policies, programmes and

practices that aim primarily to reduce the adverse health, social and economic consequences of

the use of legal and illegal psychoactive drugs without necessarily reducing drug consumption

(The International Harm Reduction Association).140 Harm reduction benefits people who use

drugs, their families and the community. Under harm reduction, the state, being aware of the

harm that has already been caused by drug and substance abuse to its citizens, provides measures

that can salvage the deteriorating lives of the addicts. It involves the welfare of drug users, in

terms of drugs and treatment. Harm reduction measures include adequate facilities for treatment,

care and rehabilitation for addicts.

140 Global Commission on Policies, ‘Demand Reduction and Harm Reduction,’ Dr. Alex Wodak AM.(a working paper prepared for the first meeting of the Commission, Geneva, 24-24 January 2011). http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Com_Alex_Wodak.pdf.(accessed on 17-6-2014).

40

In Kenya, this is provided for under the 1994 Narcotic Drugs and Psychotropic Substances Act,

1994. Section 52 of the Act provides that the minister shall, for the purpose of treatment, care

and rehabilitation of persons addicted to narcotic drugs and psychotropic substances, establish

rehabilitation centres and shall establish a special fund, known as a Rehabilitation Fund, which

shall be used for meeting the capital and current expenditures relating to the centres. 141 For the

proper functioning of the rehabilitation centres, the minister shall appoint a council to be known

as the Advisory Council for the Rehabilitation of Narcotic Addicts. 142 This council will advise

the minister on matters relating to the administration of the centres and the care, treatment and

rehabilitation of drug addicts.143

NACADA, in its national standards published in 2010 ,144 states that the field of treatment and

rehabilitation of persons with substance use disorders in Kenya has, in the past, been done in an

uncoordinated, unregulated manner and without any set standards and guidelines. Through this

publication, it came up with guidelines and regulations for the establishment of facilities that

manage and treat persons with substance abuse disorders. Thus it has established a directorate

with four main units aimed at treatment and rehabilitation of persons with substance use

disorders.145 NACADA derives this mandate from the NACADA Act. The Act provides that,

subject to any other written law, NACADA shall license and regulate operations of

rehabilitation facilities for persons suffering from substance use disorders.146

By 2012, six regions in the country had treatment and rehabilitation centers distributed as

follows. Rift valley had eleven rehabilitation centres, Nyanza province had five rehabilitation

centres, Eastern province had managed four, Nairobi had nineteen rehabilitation centres, Coast

province had eleven and Central province fourteen.147

The Narcotic Drugs and Psychotropic Substances Act under section 58 provides that, If a person

is addicted to narcotic drugs and psychotropic substances and was in possession of them for his

141 Act Number 4 of 1994, section 53.142 Ibid., at section 56143 Ibid., at section 57144 NACADA: NATIONAL STANDARDS FOR TREATMENT AND REHABILITATION OF PERSONS WITH SUBSTANCE USE DISORDERS, 201O, at http://www.nacada.go.ke/documents-and-resources/category/6-treatment-and-rehabilitation-documents?download=21:standards-web-pdf (accessed on 5/6/2014).145 http://www.nacada.go.ke/about/2012-10-17-09-59-00/treatment-rehabilitation (accessed on 5/6/2014)146 Act No.14 of 2012, L.N.89/2012, section 5(f).147 www.nacada.go.ke/rehabilitatio-centers/13-centers, (accessed on 4/5/2014)

41

own consumption, the court may order the imprisonment imposed on him to be spent in a centre

specified by court unless the court varies or revokes that order upon the application of the

Attorney General or the person convicted.

3.3.2.4.1 Challenges Facing Harm Reduction Strategies

3.3.2.4.1.1 Drug abuse is a crime in Kenya

In Kenya, drug use is considered a crime, socially unacceptable and, therefore, not tolerated.

Drug addicts are considered as law breakers who are stigmatized and supposed to face the wrath

of the law. In such circumstances, the welfare of the drug users, in terms of care and treatment, is

not given prominence.148

3.3.2.4.1.2 Prison does not rehabilitate

Many addicts are usually offenders of the Narcotic Drugs and Psychotropic Substances Act.

Most of them since they cannot prove that they were in possession of the drug for their own

consumption are sentenced to many years imprisonment. The harsh conditions of the prisons i.e.

drug smuggling by dishonest prison staff, abuse of tobacco, homosexuality inter alia, negate on

rehabilitation of prisoners.149 It is also worth mentioning that a lot of people who are sentences to

prison begin to abuse drugs therein.

3.3.2.4.1.3 High cost of rehabilitation.

Another glaring problem is that many rehabilitation and treatment centres in Kenya are largely a

private sector and NGO affair, thus many Kenyan addicts are not able to afford the services of

these centers.

According to United Nations Office On Drugs and Crime, even though money collected from

convicts under the Narcotics act is suppose to be diverted to the establishment of treatment and

rehabilitation services, the money which has been accumulated by the courts has never been

reallocated for that purpose by the treasury.148 Supra, note 37,page 7149 OMBOTO JOHN ONYANGO: The Challenges Facing Rehabilitation of Prisoners in Kenya and the Mitigation Strategies.’ At page 39, International Journal of Research in social Sciences. June 2013, vol.2, No.2.

42

3.3.2.4.1.4 Insufficient treatment and rehabilitation centres

With only three Government treatment and rehabilitation Centres, namely, Mathari Hospital,

Moi Teaching and Referral Hospital Eldoret and Coast General Hospital, NACADA is incapable

of meeting the demand. The rest of the treatment and rehabilitation facilities are privately owned

coupled with regional imbalance and thus issues of access.150

3.3.2.5 Challenges Facing NACADA

NACADA, in conducting its campaigns against alcohol and drug abuse, is frequently met with

hurdles which, at times, are very difficult to surmount. Advertisements by the Authority in the

local media are usually sandwiched between adverts by companies extolling the benefits of the

same products that the Authority is cautioning the public against thus neutralizing its campaign

message. For example, excessive advertisement of alcohol compromise NACADA’s campaign

efforts to inform the public of the adverse consequences of addiction to alcohol. There are risks

associated with working for the Authority as some companies dealing with products that the

Authority cautions the public against, for example, beer companies are very powerful and they

are able to influence the Authority’s key stakeholders to support their position and block those

opposing them. Due to risks involved in the alcohol and drugs trade, some campaigns need to be

very discreet and to some extent carried out through other persons or organizations. The

challenge is usually how to account for such resources spent in such discreet campaigns without

blowing the identity of who conducted the campaign.151The funding for control of alcohol and

drug abuse is considerably low and therefore programs to manage use and abuse of alcohol and

drugs are not comprehensive.152

3.4 Policy Measures

Unfortunately, Kenya has been operating without a national drug policy to guide development of

effective anti-drug implementation strategies and interventions both at national and grass root

levels. This gap has been responsible for the poor coordination and guidance of key players and

150 NACADA, ‘Report on Alcohol and Drug Abuse Control Status in Kenya’ April - September, 2013. At page 22.151 Supra, note 55.152 Supra, note 60.

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thus hindering effective implementation of Anti-ADA (Alcohol and Drug Abuse)

interventions.153

CHAPTER 4

CONCLUSION AND RECOMMENDATIONS.

4.1 Conclusion

This study sought to reveal the reason or reasons why drug abuse is still on the high in Kenya

notwithstanding the various measures Kenya has taken in order to fight it. Since drug abuse is a

global problem, this study endeavored to look first at the measures the international community

has set in motion in order to fight the drug menace and the effectiveness of these measures. To

this end, the study considered the Single Convention on Narcotic Drugs, 1961 (Single

Convention),154 the 1971 Convention on Psychotropic Substances(Psychotropics Convention),155

and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic

Substances (Trafficking Convention).156Kenya being a party to these Conventions, has since

taken institutional and legislative measures in its effort to enforce the provisions of these

Conventions.

This study reveals that even though Kenya has taken legislative and institutional measures to

fight the drug menace, these measures have proved ineffective because of three major reasons on

which the rest of the problems hinge.

Firstly, the support from the government is not sufficient. This is why the campaign faces a

shortage of financial resources, few numbers of rehabilitation centres, poor operational

infrastructure and why up to date there is still no national drug policy enacted to guide in the war

against drug abuse. Secondly, the campaign has very little support coming from the public. This

could explain why the campaign has exhibited limited participation by civil society, and why

drugs make it into the country, some members of the public are aware but they do not report this. 153 Supra, note 60.154 1961 18 UST 1407; 520 UNTS 204; 14 ILM 302 (1975).155 1019 UNTS 175; 10 ILM 261 (1971).156 UN. Doc. E/CONF. 82/15 (1988); 28 ILM. 483(1989).

44

The challenge of Kenya having a porous border hinge on this. Thirdly, drug abusers are

considered offenders in Kenya and most of them are sent to jail, and when they come out, they

still continue with the habit since the focus of the state was to punish them and not to rehabilitate

them.

4.2 Recommendations

One recommendation is that drug abuse should be given the same attention by the government as

it gives insecurity and poverty eradication. The government should not treat it as a secondary

problem. The government should be determined to ensure that the NACADA and the Anti

Narcotics Unit are not financially challenged. For these two institutions to be effective, their

effect should be felt in every corner of the country not just in developed parts of the country,

they need to collect information so that they are up to date, they need sophisticated technology so

that they can be able to detect all the activities of drug syndicates, the ANU needs to effectively

train its officers and equip then with the knowledge to know exactly what they are looking for in

the field and how to find it. For this to be possible, they need unwavering support from the

government. And now that the county government is taking over this role from the national

government, there is an urgent need of a policy that will regulate the relationship between the

county government and NACADA. Finally, the government should enact a national drug policy.

Another recommendation is that NACADA should come up with strategies on how it can

convince the public to make the campaign against drug abuse their own. They should also focus

on educating the public on the value they bring to the table through their cooperation. NACADA

should focus on making itself very accessible to the public and let their campaign be directed

more towards rehabilitation of drug addicts and obliterating illicit drugs from the country

together with their adverse effects.

45

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