Is cannabis legal in Ghana and The Gambia?

CBD is readily obtainable in most parts of the United States, though its exact legal status has been fluid. All 50 states have laws legalizing CBD with different levels of restriction. In December 2015, the FDA eased the regulatory requirements to allow researchers to conduct CBD trials. In 2018, the Farm Bill made hemp legal in the United States, making it virtually impossible to keep CBD illegal.

The Farm Bill removed all hemp-derived products, including CBD, from the Controlled Substances Act, which criminalizes the possession of drugs. In essence, this means that CBD is legal if it comes from hemp, but not if it comes from cannabis (marijuana) – even though it is the same molecule.

In Africa, several nations, including Malawi, Lesotho, Zambia, Zimbabwe, South Africa, and more, have leaped to legalize cannabis for medical and scientific purposes.

The Case of Gambia
In the case of the Gambia, Cannabis cultivation is illegal. The plant grows wild in the country, and those found guilty of cannabis cultivation face severe penalties.

In 2019, Gambian authorities denied decriminalization or any regulations that would lessen their staunch opposition.

A 1993 report from Cambridge found that cannabis was more and more frequently abused in The Gambia, with a growing rate of hospital visits tied to cannabis use.

The same paper found that due to varying levels of tetrahydrocannabinol (THC) found in wild-grown cannabis, it was likely that Cannabis sativa from the Gambia was more potent than in other regions.

In 2003, The Gambia’s government passed the THR Drug Control Act , which banned cannabis use, possession, drug trafficking, cultivation, and other narcotics.

The country also established the Drug Law Enforcement Agency (DLEAG) — a former unit within the Gambian police — in 2005 to advise the state on drug abuse policies and enforce the Drug Control Act.

The President and government of The Gambia have zero tolerance towards narcotic drugs.

In 2019, Minister of the Interior Ebrima Mballow claimed that the government's position has not changed on legalization and decriminalization.

Ghana
Ghana started the process in mid-July 2023 to legalize and decriminalize cannabis. The parliament of Ghana approved a bill, the Narcotics Control Commission (Amendment) Bill 2023, to amend previous cannabis legalization in Ghana under certain conditions.

However, the bill suffered a setback as it was challenged in the apex court of the Land(Ezuame Mannan Vs. AG & Speaker of Parliament (Suit No: J1/11/2021). Part of that law was declared unconstitutional by the country’s Supreme Court because it did not include parliamentary debate.

In 2022, the Supreme Court ruled a 4-3 majority decision and annulled Section 43 of Act 1019. The Supreme Court reasoned that, at the time of its passage into law, the bill lacked parliamentary debate, making the bill contravene Article 106 (5) (6) of the 1992 Constitution. Section 43 of Act 1019 previously authorized the Minister, based on the Commission's recommendation, to grant licenses for the cultivation of cannabis, commonly known as "wee" in Ghana.

“The mode of introduction of Section 43 of Act 1019 violates the letter and spirit of the Constitution. Accordingly, Section 43 is hereby struck out as unconstitutional.

“The lack of debate on Section 43 of Act 1019 amounts to not only a direct violation of the letter of Article 106 of the Constitution but also a violation of the spirit of the law,” the apex court held in July.

In 2023, a review panel of the Supreme Court also affirmed their position in a 5:4 majority decision to declare as unconstitutional a section of the Narcotic Control Commission Act, 2020 (Act 1019) which allows license to be granted to an entity to cultivate a small quantity of cannabis, popularly referred to as “wee” in Ghana for industrial and medicinal purposes.

Review Motion
Dissatisfied with the judgment, the AG filed a review application urging the apex court to reverse their earlier decision which has occasioned a miscarriage of justice.

In 2023, the Attorney General (AG), Godfred Yeboah Dame argued that there is no requirement for a memorandum to further accompany any amendment made by Parliament.

According to him, such a reading of the law imposes a further burden on Parliament and curtails its autonomy in passing law.

While referring to Article 93(2), the AG argued that the legislative powers of Parliament are only subject to the Constitution but unless the Constitution has curtailed Parliament’s powers specifically to amend laws, the courts cannot interfere with that.

The AG said, clearly, that the memorandum anticipated a situation where Parliament could make exceptions to laws allowing such cultivation.

He contended that, the apex court should be very concerned about the undue curtailment of Parliament’s legislative powers and that, Separation of powers is at the bedrock of the country’s constitution.

The AG argued that on account of these fundamental errors not supported by any specific provision and with the potential of a possible conflict between Parliament and the Judiciary, a miscarriage of justice has been occasioned and urged the court to review its decision.

Opposition
Counsel for the Respondent, (Erzuane Mannan), and Lawyer Effibah Amihere, opposed the request and contended that no miscarriage of Justice has been occasioned by the decisions of the court in July last year.

She argued that the said Section 43 as amended was sneaked into the law as of the time it has been completed.

She contended that it was a clear departure from how events of national police are handled.

She intimated that, at the time the memorandum was being tabled before parliament, that amendment was not added to the law that the cultivation was going to be allowed.

On the AG’s position that the court was interfering with the mandate of the legislature, she said the power granted parliament to make law is not absolute but is subject to the constitution and can be corrected when it violates it.

Reliefs
This writ invokes the exclusive original jurisdiction of this Court pursuant to Articles

2(1) and 130(1)(a) of the Constitution. The Plaintiff brings this action seeking the following relief;

1. A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, Is null and void on account of having been passed in a manner that is inconsistent with, in excess of, and in contravention of the powers conferred on Parliament under Articles 100(2)(a), (D), 106(5), (6) of the 1992 Constitution.
2. A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, is null and void on account of being inconsistent with, and in contravention of Ghana's obligations under Article 40(c) of the 1992 constitution.
3. A declaration that Section 43 of the Narcotics ControlCommission Act, Act 1019, Is null and void on account of being inconsistent with, and in contravention of the intent, purpose, and directions of the Directive Principles ofState Policy as provided for in Article 35(2), Article 36(9) and Article 30(10).
4. A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, Is null and void on account of being inconsistent with the letter, intent, and purpose of all other provisions of Act 1019 and especially, Sections 2(C), 3, 38, 39, 41, 42, 42(4), 45, 48, 53, 54, 55, 93 and the sixth schedule.
5. Such further or other orders as the Honorable Supreme Court will deem fit to make.

The Narcotics Control Commission Regulations 2023

After the Supreme Court reasoning, the legislators did the needful and the passage of the Narcotics Control Commission Regulations 2023 finally legalizes cannabis with a tetrahydrocannabinol (THC) content of 0.3.

The Narcotics Control Commission Bill development

The Narcotics Control Commission Act, 2020 (Act 1019), was passed by Parliament on March 20, 2020, and assented to by the President on May 11, 2020.

Section 43 of Act 1019 states that “the Minister, on the recommendation of the Commission, may grant a licence for the cultivation of cannabis which has not more than 0.3% THC (Tetrahydrocannabinol) content on a dry weight basis for industrial purposes for obtaining fibre or seed or for medicinal purposes”.

The passage of Act 1019, which replaced the Narcotics Drugs (Control, Enforcement, and Sanctions) Law, 1990 (PNDC Law 236), enhanced the mandate and authority of the Narcotics Control Commission. Under section 55 of the act, the commission was authorized as the central regulatory body in charge of all drug-related issues.

The new law
The new law empowers the Interior Minister to grant licenses and regulate the use of certain types of cannabis; those with a THC content not exceeding 0.3% on a dry weight basis, to be used for industrial purposes to obtain fibre or seed for medicinal use.

Previously, section 43 of Act 1019 authorized the minister, based on the commission’s recommendation, to grant access licences for the cultivation of cannabis.

But with the passage of the Narcotics Control Commission Regulations 2023 which legalizes cannabis with a tetrahydrocannabinol (THC) content of 0.3.

The Minister of Interior is solely responsible for issuing licenses for cannabis cultivation, facilitating the growth of this industry, and opening avenues for further exploration of its potential.

In conclusion, Ghana now has a law on cannabis for medicinal use. However, Gambia has no law on cannabis.