Side event: Challenging the criminalization of poverty and marginalization in Africa – and beyond

Organised by the Penal Reform International with the support of Ghana, the African Policing Civilian Oversight Forum and the International Drug Policy Consortium
[youtube https://www.youtube.com/watch?v=TrDVtp0xK2A&w=560&h=315]

Doreen N Kyazze, Penal Reform International. Our panellists will present initiatives on decriminalisation of drug use and petty offences in Africa. While this initiative is Africa led, we will be looking at initiatives that inform policy makers also at UN levels and across the world.

H.E. Ambassador Philbert Johnson, Permanent Representative of Ghana to the UN in Vienna. I am happy to take part in this conversation on how to support people who use drugs instead of punishing them. Let me start by thanking IDPC, PRI, the African Policing Civilian Oversight Forum and the African Campaign on petty offences. During this side event, we will discuss the impact of criminalisation on the lives of people who use drugs and reflect on emerging initiatives in Africa, including Ghana, to adopt a human rights approach to drug use. Criminalisation of drug use is a major driver of policing and incarceration cross the world. According to UN data, more than 1.5 m people were arrested for possession of drug use in 2019. At the moment, we have no data on numbers of people arrested or incarcerated for drugs in Africa. But UNODC estimates that by 2030 the number of PWUD in our continent will rise by 30% in the adult population of 18-64 years old, due to the national growth of the population. The need to understand the consequences of criminalisation is important and urgent. To address these issues, countries would do well to consider the recommendations of human rights organisation. The UN Special Rapporteur on health, the UNCESR have both highlighted that people will shun away from health services out of fear of punishment. A year ago, the UN Working Group on Arbitrary Detention released a new report on drug policy and retaining people for drug use only may constitute arbitrary detention and drug use should be addressed via a health perspective. The international guidelines on human rights and drug policy and UN common position on drugs also call for decriminalisation and access to health services for PWUD. The enforcement of drug laws impact disproportionately on those struggling already, living in poverty or are marginalised. This is what the African Commission on Human and People’s Rights has stressed in the past. In practice, the criminalisation of drug use can result in the criminalisation of poverty. Therefore some countries have reformed their drug policies to support, rather than punish PWUD. My own country provides an example. In May 2020, Ghana adopted a new narcotics act to treat drug use and dependence as a public health issue rather than focusing on law enforcement, punishment and repression. The new law has converted prison terms (min 5 years) into fines of between 200-500 penalty units (between 340 and 280 USD). Adopting the law is just a start, but it is a promising start. Now we must make sure that it is well known and implemented by law enforcement agencies, drugs and support agencies. Ghana is just one among dozens of countries having decriminalised or depenalised PWUD. We are witnessing a strong momentum in Africa of countries wanting to reform drug laws. A very important voice we should listen to is that of the African Commission on Human and People’s Rights. The 2017 report on HIV/AIDS noted that a human rights approach to drug use required a move towards harm reduction and support. The 2017 principles for the criminalisation of petty offences identified decriminalisation as a key component. While the discussion will be centred on Africa, the lessons applicable go beyond the continent. I thank you.

Doreen. Ghana is an example for us, on how to manage drug use across the continent.

Hon. Maria Teresa Manuela, Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa, African Commission on Human and Peoples’ Rights. I want to greet you all, I must thank you for the invitation so that the mechanism I am presiding over can be present in this parallel event. I want to share a few things with you: talk about the problem related to the prison population, challenges and conclusions. In the African Union, we have a broad mandate to come up with principles among other things, on offences, and violations of the African Charter. I will emphasise article 6 on freedom and security. People have the right to not be deprived of their liberty when it comes to legal procedures. We always talk about the need of proportionality. Everybody has the right to live in peace and safety. The mechanism has been in place for 25 years. We had a conference in Kampala in 1996 where we made references to prison conditions in Africa. Important decisions came out of this. Prisoners retain their right. There are issues that came up during the conference, we discussed minor offences and the fact that people should not go to prison for those offences. We also discussed alternatives to prison. Some instruments were then elaborated: the directive of Luanda on the decriminalisation of petty offences. We found that people are being detained for carrying out petty offences. We talked about the use of drugs and others, and these issues affect people who are the most marginalised in society, and this results from colonial laws. When these people are caught for these offences they can’t pay fines. The African Commission was approached in 2020. We adopted, in 2017-2018, a set of principles, we have called attention to the states on this issue and our principles, we prepared a bulletin and worked with civil society to monitor the situation. We cannot continue to remain silent when it comes to the ongoing criminalisation of poverty. We are looking at laws, and there are still countries that have high levels of criminalisation of poor people. Most people arrested for drugs live day by day, they are not high level traffickers. To conclude, what can we do to improve our work? We need to keep working with civil society on issues arising from poverty. We must have clear laws, and we must offer alternatives to prison so that we don’t punish people who are already punished for poverty. We must look at them as victims, not criminals, and detention should be used as a last result. The state should also look at the causes of poverty and address those. We should then consider the decriminalisation of all petty offences.

Happy Assan, Tanzania Network of People who Use Drugs. I am very grateful to have this opportunity to share what is going on in my community and around the world for people who use and inject drugs. When I get the opportunity to pass by prison, it is meant to ‘teach’ people and help them with their lives, but that’s not what is happening for my community members. When they enter prison, and when they come out they are in a different position. There are many diseases in prison, HIV, hep C, STIs. A lot is happening. The second thing is criminalisation: we are not criminals, we are people who have a certain problem that needs a helping hand. I know that each and every one of us in this meeting has not made it all alone. Once in a lifetime we all need a hand to pull through to make it. This is what we need. I have been there, I know it, I’ve lived it. When you try to recover at 30-35 years old, you still live through the traumas you’ve lived through when you were 18. Your routine is the same: get money, find drugs. Then you call us criminals for smoking a pipe. You throw us in jail and beat us. We are humans who need help. Harm reduction package really helps. The Commissioner who first talked explained it: the amount used for harm reduction is much less than the amount used to put us in prison. Why don’t you put us in a harm reduction centre, so that you can help us with our drug use, with our kids? Your kids can make you change when you see them. You feel the pain. If you grab my baby and through them somewhere will not help. We live in a world of disease, we need support for that. How many years have we been stuck on the data? We need to capture data on harm reduction, rather than targeting us and calling us criminals, and throwing us to prisons. I call on all leaders and policy makers to help us change.

Doreen. let’s answer a few questions: what is the link between drug use and poverty? When will African public policies integrate the fact that many plant-based drugs (coffee, cannabis, iboga, etc…) are traditional heritage of the African continent anf African peoples? It is at risk of (uncriminalized) foreign capture, e.g. biopiracy.

Maria Teresa. These are issues of legislative matters that states have to decide on. Some countries are more flexible than others. There is light and heavy drug use, and cannabis is considered as a light drug. When it comes to cigarettes, those are soft drugs. When it comes to cannabis, we need to study the issue. In Angola, there are regions where a lot of people use cannabis, to give them strength to work. There are people who go out in the field, and that stimulates them to work. But when it comes to policy, laying laws, etc., we must not look at this as a crime. When I was working on this matter in my country, a fisherman was arrested because of marijuana. He asked the question: when did that become a crime? Today, cannabis use is considered a crime. We don’t punish the use, but we know that when it’s sold or transported it is a crime. We should look at our old traditions in Africa. Various countries have legalised cannabis now. On drug use and poverty: we have heard from Happy. Some people use out of frustration, poverty and discrimination. But they have no support and end up in prison. In the case of Europe, people can use drugs in a safe way.

Maria-Goretti Loglo, International Drug Policy Consortium. In 2021, Nigeria went through the first review of the UN Committee against Torture. We tried to understand the impacts on people who use drugs. We tried to identify if there were any abuses in facilities where people were kept for rehabilitation, and also when in contact with drug law enforcement. The study was conducted by AFRILAW and IDPC. We covered five major states in Nigeria. What we found was that 72 of the 79 people interviewed experienced cases of violence at the hands of law enforcement. 56 respondents referred to physical violence, 29 respondents had experienced mental violence such as humiliation, harassment and verbal abuse, while 16 had experienced sexual violence. In terms of law enforcement, we asked questions about why violence was committed, the response was punishing people who use drugs, extortion, getting information on other people who use drugs and dealers. 90% survived or witnessed law enforcement violence. And this is not new, many studies show that this has happened before.

What we also found was that about 13 respondents referred to cases of physical and mental violence in government-run centres, 9 of them in NDLEA facilities, including beatings, starvation, isolation and shackling. Others reported beatings and other forms of violence in religious ‘rehab’ centres. Out of the 71 respondents reporting violence, about 17 survivors reported the situation to somebody else (NGO or relative). But 7 did not report any of the violence they had suffered, some thought they deserved their treatment, others felt it was stigmatising. Only 1 issued a formal complaint. One woman reported that she had been sexually violated because of possession of small amounts of cannabis and didn’t want to report abuse to her parents as she didn’t want to disclose she was using drugs. In all cases, violence and abuses disproportionately inflict people already marginalised on the basis of gender, sexual orientation, drug use and poverty. Women experienced very specific forms of torture and ill-treatment, especially sexual abuse.

In terms of our recommendations, we have encouraged the adoption of robust mechanisms to oversee the actions of law enforcement agencies and agencies that provide drug rehab. What we also need to do is ensure that at least there are actions taken immediately to reverse the dehumanisation and marginalisation of people who use drugs. We must decriminalise drug use and possession for personal use, and ensure people are able to be given dignified support they may need, including treatment and harm reduction services grounded in evidence and that are voluntary. Finally, we need to take action to remove stigma and discrimination against people who use drugs.

Janelle Mangwanda, African Criminal Justice Reform. We found that arrested were illegal and discriminatory. Pretrial detention and overcrowding are major issues in Africa. Arrests are often carried out without warrant and lead to violence. What is the problem? Criminal justice systems criminalise the poor by using archaic and discriminatory laws used to get rid of those considered unwanted or undesirable, people who don’t belong. This is criminalising people from marginalised communities. Thes is not the best way to deal with the problem, especially if the behaviour does not threaten public safety. So how can we address this? In 2014, 7 likeminded organisations came together to promote decriminalisation of petty offences, and pursue the African Court on human and Peoples’ Rights for an Advisory Opinion. Now we have 36 member organisations across and beyond the continent. The campaign has had 3 milestones: on research and advocacy, we’re released reports on problematic nature of laws criminalising petty offences and their discriminatory enforcement. We have also focused on law reform, with domestic and regional law reform as a result of our research and advocacy. For example in Malawi  we focused on rogue and vagabond, idle and disorderly offences, and directives for prosecutors were adopted. In 2017, the African Commission adopted the principles on petty offences, we promoted those in our advocacy. We also worked on strategic litigation to question and challenge petty offences laws in various jurisdictions. When the campaign decided in 2019 to approach the African court for an Advisory Opinion, we obtained a favourable opinion in December 2020. This confirms our position that some laws are unlawful and discriminatory and perpetuate poverty. Now comes 2020 and the whole world is hit by COVID-19. Many countries establish a state of emergency, some a state of calamity. What we saw was that public health restrictions were creating new laws that had a criminalising effect on the poor and marginalised, with brutal enforcement of curfew and lockdown measures, among others. In September 2020, we hosted an online conference on COVID-19 and the criminalisation of petty offences. A statement was released and presented at the ACHPR: COVID-19 measures should be necessary, proportionate, reasonable and time bound. ACJR then produced a study comparing measures taken in 5 African countries, focusing on human rights and COVID-19 measures. It describes how each country established states of emergency or disaster and how it defined stakeholder participation. We analysed the legal frameworks, and identified what the strengths and weaknesses were used in design: how the countries responded to COVID-19, and what was the impact on civil and political rights, and how civil society reacted to those policies, and the impact on detention monitoring and oversight mechanisms. What you can do is join the campaign. For more information, please visit our website. You can reach out to your institutions on how to promote the decriminalisation of petty offences, follow the campaign’s progress online. You can also view our infographic available here.

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