Side Event: Legal and Institutional Framework on Drug Control and Related Organized Crime in West Africa

Organized by the Government of Nigeria, the Global Commission on Drug Policy and the Economic Community of West African States.

Barbara Goedde (Global Commission on Drug Policy): Welcome on behalf of the co-sponsors, including the Global Commission on Drug Policy. Today we will hear from the Ambassador in Nigeria, and Nigeria have been playing a formal role in facilitating the negotiations alongside the CND Chair, Sudan. I am pleased that the Ambassador will Chair this session for us.

H.E. Vivian Nwunaku Rose Okeke, Ambassador Of Nigeria (Chair): Welcome and thank you for coming to this part of the programme, and thank you to the co-sponsors. West Africa is a region that is particularly vulnerable to criminal activity, as institutions are weak and criminal organisations are using the region as a transit route. But drugs do not only pass through the region – they undermine our societies and create economic damage. In parts of Nigeria, it has been even more difficult to contain this problem. In 2017 alone, we have 1.7 million pills of Tramadol trafficked into Nigeria, and even today we have 29 containers waiting to be searched at our ports.

The African Union and ECOWAS have already sounded the alarm about these threats. ECOWAS is working with its member states towards a standardised, harmonised approach to drugs, with technical assistance etc. Our first speaker will tell us more about that. The West Africa Commission on Drugs, convened by the late Kofi Annan and Chaired by the former Nigerian President, has played a key role.

Dr Ludimila Barai Mikulec, ECOWAS: I want to speak today about our experience in harmonising legal frameworks in the region. Criminal actors and their networks participate in a range of criminal activities and use their influence and money to undermine governance. West Africa is a regional hub of drug consumption, trafficking and production, creating major challenges.

In 2008, ECOWAS developed a Drug Action Plan to Address Illicit Drug Trafficking, Organized Crime and Drug Abuse in West Africa, which includes the commitment to develop a regional legal framework to tackle drug trafficking and to facilitate the harmonization of laws against drug trafficking within member states. ECOWAS also instructed the Commission to develop a single framework for use by member states. The ECOWAS therefore requested, and received, reports from all member states on their current responses to drug control and organised crime.

ECOWAS has now developed a report based on these submissions, which will be presented to the member states later this year. This covers relevant national legal texts, gaps in legal instruments, institutional frameworks, inter-agency coordination, best practices, scope of drug related crimes, other relevant legal issues, challenges, prospects, and recommendations. ECOWAS is also drafting a Mapping Matrix of Legal and Institutional Frameworks on Illicit Drug Trafficking and Related Organized Crime for the relevant ECOWAS member states and Mauritania. The primary drug control legislation in the 16 countries – including Mauritania – have been identified and a synopsis of their criminalization status provided. Other related laws dealing with organized crime, including money laundering and anti-corruption and terrorism laws were also collated.

ECOWAS further identified the national entities responsible for drug control, in order to further assist coordination. The regional institutional framework has been articulated within the framework of the ECOWAS regional integration programme, in particular under the Directorate of Gender, Youth Development and Drug Control. But it also engages other parts of the institution, such as Political Affairs, Social Affairs, and Information Technology. ECOWAS’ commitment to this issue has been demonstrated by a long list of legal instruments.

In terms of next steps, a new ECOWAS Supplementary Act on the Prevention and Control of Illicit Drug Trafficking, Transnational Organised Crime and Drug Abuse in West Africa has been drafted with the support of UNODC. The WACD Model Drug Law for West Africa has also been presented to member states for discussion and validation.

It is clear from our experience that there is need for some level of uniformity or similarity in the regional and national drug legislation in West Africa. The ideal may be to make the laws the same, but this is impossible due to differences in national systems and structures. This is particularly the case in relation to burden of proof, but also for the paradigm shift presented in the WACD Model Drug Law. Therefore, the key policy issues that should determine the harmonization remain the commitment to the international obligations under the UN Conventions, the African Union (AU) and ECOWAS. The main driver of this process will be the political will of the countries.

There is a clear shift towards a more humane response, so the best approach will be to develop minimum standards – as has been done by UNODC at the international level. Overall, there seems to be a significant level of compliance with acceptable international standards, especially with regard to criminalization, penalty, seizure and confiscation of proceeds of crime. The area of deficiencies are related to the human development aspects of drug control, including treatment and rehabilitation.

Our main recommendation is for a reform of the national and regional legal frameworks, based on the African Union Action Plan on Drugs. Minimum standards should bring us towards the implementation of comprehensive, accessible, evidence-informed, and ethical and human rights-based drug use prevention, dependence, treatment as one of the key priorities for member states. The approach described here will not have a detrimental effect on existing legal frameworks, but will rather strengthen them. Thank you. 

Adeolu Ogunrombi, West Africa Commission On Drugs (WACD): Today, I am going to present the WACD Model Drug Law, of which we have copies for you all today. The WACD is an independent commission comprising individuals from politics, civil society, the judiciary and the health sector. We work together to bring evidence to the table, on how drug policies impact health and security in the region. The Model Drug Law is our latest publication. In 2014, we released our landmark report – Not Just In Transit – which reviews the situation in the region. When gathering data and interacting with governments, many asked about how to resolve their challenges and deficiencies in their laws, and asked for a template to assist their reform efforts. This catalysed the need to develop a Model Drug Law.

In 2017, IDPC and WACD conducted a review of existing laws across West Africa, and found that most were based on prohibition and severe repression. This reflects the idea of West Africa as simply a transit region – but in most countries there was no distinction made in law between drug use and drug supply. We also found that, in many countries, laws were being reviewed – so it was an ideal time to provide a resource.

This Model Drug Law is based on the UN drug control conventions, and also reflects the UNGASS Outcome Document, the AU and ECOWAS policies, and the available evidence of what works (not just what feels good). The Model Drug Law also provides commentaries and guidance alongside template legislative provisions. It provides a legal framework for how a health-based approach to drugs should look like. I will focus on four key provisions today.

First, the Model Drug Law covers treatment and harm reduction, as only one in eighteen people in need are receiving treatment in our region. The Model Drug Law therefore aims to protect and promote treatment in West Africa, and includes the need for harm reduction services to protect people from the dangers associated with drug use. These services are not widely available in our region, but we do have good experiences from countries such as Senegal. The Model Drug Law removes paraphernalia laws which act as barriers to accessing services, and to better address the public health concerns related to injecting drug use. It also promotes alternatives to punishment and criminal sanctions, such as treatment and diversion from the criminal justice systems. These cases should be handled by public health experts, and not the police.

Secondly, for the criminal justice system, the Model Drug Law states that the burden of proof must be on the prosecution, including for the confiscation of property. The Law includes protections against abusive policing practices, includes the provision of health services such as treatment, and urges against the use of pre-trial detention, which is a major problem in the region. The Law also links to other related legal instruments such as those related to money laundering and other organised transnational crime.

Thirdly, the Model Drug Law states that drug use or possession for personal use should not be considered as a criminal offence. Indicative quantity thresholds should be out in place to ensure that people who use drugs are provided with treatment and services, rather than punishments. Drug use therefore should be decriminalised. For other offences such as supply, criminal punishments must be proportionate to the gravity of the offence, and must take into account mitigating factors such as the role that a person plays in the drug market chain. Sentencing must also consider a person’s childcare needs, among other things.

Lastly, the Model Drug Law provides for clear exemptions for the medical use of controlled substances – in order to ensure the provision of pain medicines, and to promote a legal framework that facilitates this. Substances such as methadone (used for drug treatment) and naloxone (used to overcome opioid overdose) should not be prohibited. Health professionals should also be protected from reprisals in the course of their job, to remove fear about prescribing pain medications. The Model Drug Law also calls for the creation of expert commissions in each country to facilitate estimations of the need for pain medicine.

Overall, the Model Drug Law provides a framework for a better drug control response in West Africa. Our existing repressive policies have not worked, and we cannot pretend this is not the case. We have seen our region move from a transit route towards a consumption and production region, so we need to adapt accordingly. Thank you.

H.E. Vivian Nwunaku Rose Okeke, Ambassador Of Nigeria (Chair): I want to share a story about Olusegun Obasanjo, the former President of Nigeria. He was a political detainee before he became the President. He found himself in jail with drug offenders, people who were using drugs and needed help. They had no reason to be in jail. That was what made him play an active role in this area, and why he became the Chair of the WACD – to advocate for a more humane response to drug policies. It takes a lot of political commitment to make this change towards a proportionate legal response. West Africa is an important region, and this approach alongside international partners will help to tackle the issue.

Maria-Goretti Ane Loglo (IDPC Consultant for Africa): Thank you for giving civil society the opportunity to make a response to these discussions. Since the launch of the Model Drug Law in September 2018, civil society has been using it as an advocacy tool in countries such as Liberia, Mali, Cote D’Ivoire, Benin, Burkina Faso and Ghana. The West Africa Drug Policy Network (WADPN), in collaboration with IDPC and the West Africa Civil Society Institute (WACSI) will soon embark on country-specific engagements to sensitize policy makers and civil society groups on the Model Drug law and how to use it.

We will continue to support dialogue between governments and civil society, as we play a very important role and a valuable contribution to realizing significant progress in the drug policy reform agenda.

I want to share a story with you all, a story that tells us the important role each of us play today in ensuring that our drug policies do not destroy many more lives but rather should save lives and give hope to the vulnerable in society. This is a story about a fallen legend due to our repressive laws. In 2004, Ghana lost a great legend, a pianist named Kiki Djan. He was a prodigy and playing the piano excellently well. He was professional at the age of 12 years and by 15, he was the lead pianist for Osibisa (a well-known African band). He toured the whole world, meeting with music stars and celebrities. He played for the high and mighty, including the Queen of England. By 18, he was a dollar millionaire. Kiki Djan’s success was suddenly stopped by a drug addiction when he ended up as a beggar in the streets of Accra. He battled drug addiction for over 21 years and died on 10 June 2004 of AIDS and drug related diseases.

The world has robbed Kiki of his talent because of this addiction and the country just had no laws, systems or institutions in place to help him even though he cried out desperately for help. As we sit here today, there are thousands of Kiki Djans in our countries, millions in our sub region. These people can contribute significantly to the development of our nations, but they are caught in this drug trap they cannot escape from because our policies, laws, systems and institutions treats them as criminals. This stigmatizes them and, even when we try to treat it through religious and traditional methods, we often abuse them.

Governments in the region need to support the agenda for a human-rights centred approach to tackling the drug problem, more focus on harm reduction and addressing the issue of drug use and abuse through a public health lens, rather than criminal justice. In summary, I will like to say that we need commitment from both civil society and governments, to effectively engage the key sectors in society to achieve the common objective. Thank you.

Question from floor – ECOWAS representative: Congratulations to the panel, and I want to contribute on two aspects. Since the 2008 Political Declaration, many things have happened. Our governments are busy, they sign on to documents that other technical staff then have to implement. Still, we see increases in the amount of drugs being seized. When it comes to legislative change, while we push countries to have more adequate, balanced laws. But we still have the issue that every piece of legislation is a budget matter with new budget lines. We cannot create a balanced approach unless we provide the Health Ministry with the resources to ensure that treatment is in place. Senegal is the only country I am aware of that is providing budgets for this purpose, but also there the services are still provided by the Global Fund for 1,500 patients. How can we make this sustainable?

Question from floor – Nigerian Ambassador: What was the basis for some of the claims in the Model Drug Law, such as the threshold of ten days’ use to define personal possession? The most debilitating health concern in West Africa is malaria, so why should we diver money from this and into people who use drugs? And on the role of civil society, it is patronising to suggest that governments do not have the expertise.

Question from floor – Nigeria: We also believe in the balanced approach, and in the need to implement the UN drug control treaties. Decriminalisation is permitted within the treaties, and countries must be informed that this is not a violation of the treaties. It would have been bad if the Model Drug Law did not reflect the commitments that we have signed up to. The balanced response includes both public health and law enforcement, and there are linkages between people who use drugs and crimes that are committed and this must also be considered.

Question from floor – UK: The international drug control treaties prohibit the non-medical and non-scientific of drugs, but also mandate their availability for medical use. In this regard, West Africa is not doing well and most people are not getting enough pain medication. So what is being done to avoid tightening the controls of Tramadol to ensure that people can still access legal Tramadol when they need it for legitimate reasons. Finally, what is the region doing in terms of medical cannabis – something that the rest of the world is awakening to.

Question from floor – Ghana: I heard speakers call for sanctions for people who use drugs, but also for the decriminalisation of drug use. These are two different things, please clarify.

Responses: The WACD Model Drug Law is fully compliant with the UN drug control conventions. For the threshold of ten days’ use, we looked at the existing models around the world and sided with the practice being used in Portugal. It is not cast in stone, it is for discussion and adaptation by countries. But if the threshold is too low, the intention to decriminalise drug use loses its impact. On the expertise of civil society, the point was that civil society and government should collaborate – both have expertise to bring, but collaboration is key. On financing and sustainability, governments have to see this as a challenge that needs to be addressed and a political priority. Until we see it as a multi-sector perspective and response, we will not be able to make progress.

On the proliferation of methamphetamine labs, is this because of a lack of drug laws or is it a consequence of drug laws? The response should not be about watering down the law or clamping down. When we clamp down in one country or area, they will just move to another. It is a new development since 2010, and we need to be realistic about the approach and look at it in a holistic manner and better understand the challenges. The response should be public health and law enforcement together.

The ECOWAS expert meeting will take place in April, and will take these questions into these discussions.

Comment from floor – UNODC: Regarding malaria, this is a typical response of denial. People do not accept to see the reality of drug abuse in West Africa. Half of the population of West Africa is under 25 years old, and we know that drug use is a youth issue, that our borders are porous, and our family structures face challenges. We cannot develop our countries if we do not protect our young people. We need more institutional capacity for prevention, treatment, and border control.

Question from floor – Nigeria: We have seen the need to improve the supply of pain medicines, and not to rely only on imported products. We want to go into local production, with facilities across the country that can respond to this. The products are off patent, but we lack the resources. We are making efforts to make these medicines available, accessible and affordable. [When prompted about medical cannabis] Not yet, the evidence is still not established and the legal framework needs to be there first. This is an issue that is being debated. [Comment from floor – in many countries, research on cannabis is not permitted due to drug laws, which creates a vicious circle]

Comment from floor – Youth RISE: We have to acknowledge that drug use is on the increase. We have mentioned Tramadol here, but should discuss cannabis too. It is sad to hear that some in this room prefer to go with the primitive responses that have not worked.

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