The drug problem refers to the widespread use and abuse of illegal drugs, prescription drugs, and other substances with negative physical, mental and health consequences. Communally it has had the effect of destroying relationships such as family and friends. It also ruins one’s capability of working and studying which makes society’s economic status plummet because of lost wages or employment, the cost of drugs, healthcare expenses, and criminal justice costs. Drug use also has broad social consequences including the spread of infectious diseases, an increase in crimes, and the erosion of social cohesion and community well-being. Additionally, drug use and addiction can lead to stigmatization and discrimination against people who use exacerbating existing social inequalities and marginalization. Addressing the drug problem has been a contentious issue worldwide as most countries have sought a criminal justice venue in addressing the root issues of drug addiction by enacting punitive laws and policies. This has proved to be problematic and has rendered the problem far from solvable with implications like human rights violations, corruption, and crime being at an all-time high. The notion of combating these problems posed by drug use and addiction by criminalization has led to seeing drug use and addiction as a criminal malaise rather than a health and a social malaise.
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood declares Article 1 of the universal declaration of human rights. However, this has not been true at least in the cases of some groups being stripped of the rights and dignities accorded to them, by them being humans. People who used drugs or PWUDs have often been vilified and ostracized by society which has in turn led to systematic and endemic violations of their human rights.
PWUDs make up a considerably hidden population due to stigma, discrimination, social exclusion, and criminalizing laws: often, people who use drugs need to remain hidden to survive. Because of this, it is very difficult to highlight all the human rights violations that people who use drugs go through, however, this does not connote that there are not various human rights violations for instance violations of human dignity and integrity, arbitrary arrests, torture, lack of healthcare and service provisions to people who use drugs.
In most countries including Kenya, possession of drugs is criminalized, this effectively criminalizes people who use drugs and eventually, they become subject to police brutality, harassment, and arbitrary arrests. This violates Article 9 of the UN’s International Covenant on Civil and Political Rights, which states that no one shall be subjected to arbitrary arrests or detention. Similarly, Article 49 of the Constitution of Kenya outlines the rights of arrested people, while Article 51 retains the rights of people who are arrested or detained. However, this has not been the case as individuals who use drugs have repeatedly been stripped of their dignity, discriminated against, and stigmatized, grossly violating the Bill of Rights stipulated in the August Constitution.
The enforcement of laws and policies criminalizing personal drug use and possession causes catastrophic infringements of human rights. These draconian laws and policies lead to discrimination, stigmatization, and difficulties in accessing mental and physical health care, making PWUDs more susceptible to infectious diseases such as HIV/AIDS. The impact it has on society’s well-being is more long-term and far-reaching with implications such as family separation, increased criminal activities, increased mass incarcerations, and lack of healthcare support.
Overall, Kenya’s drug policies violate the human rights of PWUDs and have negative consequences on society. A more human rights-focused approach to drug policies is needed to address drug use and addiction as a health and social issues.
Drug laws and policies in Kenya
Kenya has acceded to the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Substances. These three treaties form part of Kenya’s law through section 2(6) of the constitution of Kenya 2010.
Domestically, Kenya has enacted the Narcotic Drugs and Psychotropic Substances (Control) Act (1994) and National Authority for the Campaign against Alcohol and Drugs Abuse Act (NACADA) (2012), the former was enacted to combat possession of and trafficking in narcotics and psychotropic substances while the latter has a broad mandate in its authority to coordinate multi-sectoral efforts to prevent, control and mitigate the effects of alcohol and drug abuse in Kenya. Additionally, NACADA has the mandate to buttress the mandate given to county governments under the fourth schedule of the Constitution of Kenya to develop laws, policies, and action plans on control of drug policies within their counties. The National Drug Control Authority Bill (2011) sets out the authority and establishes the institution for the control of drug and chemical substance abuse and the formulation and implementation of drug control policy.
The Constitution of Kenya has a whole legal framework on human rights and it obligates the state with duties and obligations such as to protect, respect, and fulfill human rights while carrying out their day-to-day mandates. In line with this, the state has a duty to protect human rights while countering the drug problem. The most important in protecting human rights while countering this problem is respecting human dignity, human life, prohibition of arbitrary arrests, and the right to the highest reasonable standard of health.
Human rights and combating the drug problem in Kenya
Drug policies in Kenya have been controversial due to their impact on human rights. The government’s approach to drug control has often been focused primarily on law enforcement measures, including the criminalization of drug use which has led to the violation of various human rights. The approach that can be coined as“ The War on Drugs” has led to the creation of punitive laws and policies which seek to vilify and incarcerate drug users, which has created intolerance in society. Better alternatives like rehabilitation and counseling which have proved to be effective in restoring people’s lives have often been sidelined by punitive measures which seek to destroy both individual and community life.
The Narcotic Drugs and Psychotropic Substances (Control) Act criminalizes the possession and use under section 3(2) which declares that if one is found to be in possession of cannabis for personal use to be imprisoned for a term not exceeding five years or to a fine of not more than one hundred thousand Kenya shillings. Additionally, any other substances other than cannabis may attract a term of imprisonment of 20 years as the act minimizes the term of imprisonment to five years and not a fine of less than five million shillings or both. In the same section of the act, it tries to mitigate drug use or addiction problems by committing drug users to an appropriate court-appointed treatment program or voluntary submission to a rehabilitation program of not less than six months. This rehabilitation program goes in hand with the prison sentence.
Despite efforts by the act to mitigate this drug use problem by sending offenders to court-appointed treatment programs, it has served to help a little. It has been barely implemented with inmates just being incarcerated without addressing their prevailing drug and health problems. Another problem with court-appointed rehabilitation is that many of these programs are run by non-governmental organizations which are privatized and often charge high fees for treatment; this does little to help as the bulk of people arrested for drug use come from the lower echelons of society and are unable to afford it.
Moreover, three out of over five thousand government-run facilities deliver treatment for substance use disorders( SUDs), to further deteriorate the matter the Ministry of Health which is supposed to combat these problems has no separate budget for SUDs. These problems coupled with the issue of lack of monitoring and follow-up by the courts and law enforcers make a prisoner highly susceptible to start abusing drugs again. In a study done by Daniel WC Kinyanjui and Lucy Atwoli regarding ‘Substance Use Among Inmates at Eldoret Prison in Western Kenya’ came to the inference that there was a high prevalence of substance use among prisoners at the Eldoret G.K prison with substances like cannabis having a lifetime prevalence of 21% among prison inmates and amphetamines having a prevalence of nearly 10%. It was noted from the study that 66.1% of the prison population have a lifetime prevalence of substance use and many continue to use it while they are in prison. There has not been enough data to look into drug use in prisons and therefore it has been really difficult to air the problem that incarceration poses to combat drug use in the country.
The state also approaches the drug problem through HIV prevention programs. Kenya has one of the highest HIV prevalence rates with that of the general population standing at 5.6%, however, HIV prevalence rates among people who use drugs stand at 18%. This situation has called for help in trying to reduce HIV infections. The Kenya AIDS Strategic Framework (2014-2019) by the Ministry of Health has called for the use of harm reduction strategies for people who inject drugs as part of the HIV prevention strategy. The framework prioritized prison-based HIV and AIDS programs that also responded to drug misuse in prisons. Whereas this framework takes a step in the right direction, its efforts are often sabotaged by punitive laws and policies, the provisions in the Narcotic Drugs and Psychotropic Substances (Control) Act, act as a barrier to providing health services to persons who use drugs. The enforcement of these laws and policies has kept people away from seeking help such as harm reduction by those who inject drugs in fear of incarceration, this has, in turn, led to efforts made by the Kenya AIDS Strategic Framework to dwindle since HIV/AIDS control among drug users will be hard to mitigate.
The problem of seeing drug use as a criminal matter rather than a health matter has led to the enforcement of these laws which barely give any cognizance to treatment. Drug users and outreach workers providing harm reduction treatment have often been arbitrarily arrested and charged with either being found in an area infamous for drug use or being found with drug-related paraphernalia which violates a number of their rights for instance with these lack of healthcare and service provision PWUDs rights are violated especially the right to healthcare.
Article 43(1)(a) of the Constitution posits that every person has the right to the highest attainable standard of health, which includes the right to health care services. The efforts by criminalization have heavily impacted the right to health care as shown above laws like the Narcotic Drugs and Psychotropic Substance (Control) Act seek to incarcerate people without offering help in combating their drug addiction problems.
A major study by the OHCHR, The Working Group on Arbitrary Detention found that the “war on drugs” had resulted in mass incarceration through racial profiling, search and seize laws and procedures, excessive pretrial detention, disproportionate sentencing, and the criminalization of people who use drugs including pregnant women in some countries.
Article 9 of the International Covenant on Civil and Political Rights (1966) declares that no one shall be subjected to arbitrary arrests or detention. Additionally, Article 49 of the Constitution of Kenya reiterates the same. Article 51 of the same constitution declares that every person detained, held in custody, or imprisoned under the law, retains all the rights and fundamental freedoms accorded to him by the Bill of Rights.
On arbitrary arrests, the police have been notorious for arresting the youth on fabricated charges which is a serious violation of human rights, worse some end up disappearing and others are killed. The interrelatedness and interdependence of human rights show that the violation or limitation of one right affects equally other rights, on the matter of arbitrary arrests which have led to cataclysmic violations of other rights such as freedom from torture, cruel, inhumane, and degrading treatment as youths and drug users have borne the brunt of harsh and abusive treatment which goes on further to strip them of their human dignity.
This has unfortunately been going on for a long while as people especially youth from poor demographics such as Mathare and Kibera are arbitrarily arrested on almost a daily basis. In an article by Lucy Wambui on Drugs and Police in Mathare, she noted that drug traffickers and peddlers are often protected by people in high positions such as politicians and policemen who assist them in providing these drugs. They, therefore, give guns to traffickers and goons in flooding the streets with drugs, hence other criminal activities like robberies, theft, and prostitution are bound to be rampant so that drug users can fund their addictions. Is this the war on drugs if the same people who are fighting it are funding it? This clearly demonstrates the ugly hand of corruption in these punitive policies.
The involvement of women in drug use reflects decreased social and economic opportunities and inequalities in access to education and employment. This is especially true for women living in impoverished areas. While poverty does not necessarily lead to crime it decreases prospects, cripples morale, and exacerbates female exclusion and marginalization. This has made many women vulnerable and victims of the influence of crimes such as prostitution and drug trafficking. Research indicates that 70% of these women sustain their drug habits through prostitution. The stigma associated with women’s drug use is compounded by already existing gender inequalities and stereotypes. For instance, women who use drugs experience higher rates of physical and sexual violence than women who do not use drugs. The UN has noted that many country’s lack of gender-sensitive drug treatment opportunities is a barrier to women’s access to these treatments which makes it very impeding to reintegrate into society. Lack of health care especially for women who inject drugs has led these women to bear the brunt of HIV/AIDS, Hepatitis C among other infectious diseases. The calamitous event resulting from a mother’s incarceration has led to the separation and estrangement of children from their mothers. An American study showed that children of incarcerated parents especially the mother are a more vulnerable population who experience disadvantages across an array of health outcomes, including learning disabilities, attention deficit disorder, and attention deficit hyperactive disorder as well as a higher rate of physical health conditions such as Asthma, similarly, a Dutch study demonstrated a link between parental imprisonment and premature death.
Alternatives to criminalizing drug use
Decriminalization and depenelization
Decriminalization can be defined as the removal of sanctions under criminal law, with the optional use of administrative sanctions for instance issuing civil fines. Depenalisation can be defined as the decision in practice not to criminally penalize offenders, such as non-prosecution or non-arrest. Decriminalizing drug possession and investing in treatment and harm-reduction services for people who inject drugs can provide major benefits for public health and safety, including a reduction in the number of people arrested or incarcerated, especially those who are arbitrarily arrested or detained to contrary human rights, a reduction in criminal justice costs and redirecting resources from criminal justice to health services, redirecting law enforcement resources to prevent serious and violent crimes such as drug trafficking and corruption which as demonstrated have been the bane of society’s well-being, and lastly, it minimizes the social exclusion of people who use drugs, which creates a climate in which they are less fearful of seeking and accessing treatment, utilizing harm reduction services and receiving HIV/AIDS services.
There have been many international and domestic organizations that have called for decriminalization policies such as the World Health Organisation and Human Rights Watch. Human Rights Watch commented that ‘Drug control policies that impose criminal penalties for personal drug use undermine basic human rights…Subjecting people to criminal sanctions for the personal use of drugs, or for possession of drugs for personal use, infringes on their autonomy and right to privacy…The criminalization of drug use has undermined the right to health… Governments should rely on non-penal regulatory and public health policies.
It has been noted that countries that have adopted less punitive measures towards drug possession have not experienced any significant increases in drug use, drug-related harm, or crime relative to countries with punitive policies. Similarly, a study done by the World Health Organization found that a country with punitive policies like the U.S. had the highest lifetime drug use rates by a wide margin, despite its punitive policies, inferring that criminalization had little to no effect on rates of use.
In 2001, Portugal decriminalized the possession of all drugs for personal use. Anyone found to possess less than a ten-day supply of any drug can receive a warning, fine, or be ordered to appear before a local commission which can advise or order treatment, harm reduction, or other supportive services. Portugal’s move of decriminalizing drug use and possession and reclassifying it as an administrative violation has had positive results. Portugal significantly increased its treatment and harm reduction services including access to sterile syringes, methadone maintenance therapy for people who inject heroin, and other medication-assisted treatment. After two decades Portugal has not had any major increase in drug use, reduced rates of problematic and adolescent use, fewer people arrested and incarcerated for drug use, fewer incidences of HIV/AIDS transmission, reduced drug-induced deaths, and a significant increase in people receiving treatment.
Czech & Dutch models
The Czech Republic moved from its punitive and criminal penalties of the late 1990s into a more humane and health-based approach. The republic has integrated many elements of harm reduction and treatment into its drug policy, including low-threshold opioid substitution treatment and syringe access programs which happen to be one of the most expansive in the world. The Czech government conducted in-depth research and evaluation that criminal penalties had no effect on drug use or related harms and were hence unjustifiable. In 2009 the country adopted a decriminalization law that defines personal use quantities, establishing some of the most pragmatic methods for handling this drug problem. Additionally, the Netherlands has a long-standing policy to instruct prosecutors not to prosecute roughly a single dose of any drug for personal use. This policy has made the rates of addiction, especially to opioid drugs in the Netherlands significantly decrease relative to the U.S. and most of Western Europe.
Supervised injection facilities and heroin-assisted treatment ( HAT)
Kenya in recent years especially in the coastal region has seen a surge in the rates of addiction to heroin affecting the youth and seeing many deaths resulting from overdose, crime, and infections such as HIV. There have been many moves to curb this situation with health NGOs trying to provide harm reduction and methadone treatment but this has been sabotaged by the country’s punitive laws pushing drug users away from seeking health care and also posing a problem to healthcare professionals who are trying to help by arbitrarily arresting them when found in these drug/heroin dens and found with drug-related paraphernalia as earlier demonstrated. To curb these problems of death due to infections such as HIV, it is necessary for the government to step in and issue supervised injection facilities considering that HIV/AIDS prevalence in the country is surging especially amongst drug users. Heroin-assisted treatment is a harm reduction measure for people who have used heroin for a long time. This stabilizes people who use heroin by providing them with heroin and cutting them out of the illicit drug trade which is the major cause of all this.
Additionally, treatments like methadone substitute the use of Heroin with methadone a drug that has similar qualities to heroin and helps in the withdrawal symptoms. As of 2021 medical facilities offering methadone treatment stand at 8, which is very low and the government needs to take a more health approach system in curbing heroin addiction and in assisting the reintegration of heroin users back into society.
One of the implications of drug use is mostly discrimination and stigmatization of people who use drugs by the community and overall, by the legal system. This has led to the ostracization of people who use drugs which is mostly perpetrated by punitive laws and policies. Making drug users do not ask for help hence pushing away the link between them and healthcare facilities making them susceptible to infections and deaths associated with overdoses. This has especially been borne by women who use drugs and are susceptible to sexual and physical violence. It is therefore important to involve the community to understand that this is a health problem rather than a criminal one. Thus, it is important for community members can provide support and empowerment for people who use drugs and their families, reducing social isolation and stigma. Additionally, community members can work together to develop and implement prevention programs that target vulnerable populations such as youth, and to promote awareness about the dangers and awareness of drug use. Community involvement can help also people realize their rights to certain amenities such as health care and assist drug users in going to rehabilitation centers and other help treatment centers. This can reverse the effects of criminalization which has pushed people who use drugs to the edge of society making them aliens to their own rights.
In summary, criminalizing drug use has done more harm than good in countering the drug problem. Similarly, it has led to the violation of human rights and perpetuates harm toward vulnerable communities. As shown above, a public health approach including decriminalization and community involvement is necessary to address the harms of drug use and promote human rights and public health outcomes.
Constitution of Kenya 2010
Convention on Psychotropic Substances 1971
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