Setting The Records Straight: Decriminalization Is Not Legalization Of Controlled Drugs

The war on drugs represents more than 50 years of wasted resources, lost lives and preventable harms in the lives of people around the world. It has been a war on human beings since the coming into force of the UN Single Convention on Narcotics Drugs in 1961.

Rather than reduce drug use or drug markets, this war has simply washed immense amounts of money down the drain through adopting repressive measures – mainly directed at what has described as the ‘small fry’ (small scale producers and consumers of illicit drugs), rather than the ‘big fish’ who are profiting from this global illicit economy. All over the world, repressive drug policies are mostly an ideological and reactionary response to the situation on the ground, and are not based on evidence.

It is a massive failure: this situation has not only stigmatized people who use drugs, it has also led to misguided and harmful policy making, an ongoing concerted effort to overstate the dangers of drugs – the primary actors being politicians, law enforcement agencies, and an ill-informed media – and led to a situation where billions of people are unable to access essential medicines for pain relief and palliative care.

The current policy discourages people who use drugs from accessing health services through fear of arrest, and there have been countless violations of the human rights of people in the name of the war on drugs. As a result, the war on drugs is fueling the global HIV epidemic as drug using communities are driven underground and faced with increased risks such as the sharing of needles and syringes that can lead to blood-borne infections.

Mounting evidence shows that there is the need to move towards a new policy approach – one in which progress is measured by public health indicators such as the number of people receiving drug treatment, rather than being measured by seizures and arrests.

New policy initiatives around the world have taken the form of reducing punitive penalties for minor, non-violent drug offenses, and stepping up harm reduction and public health measures to protect people who use drugs (and their communities) from harms such as HIV.

In these debates, decriminalization is often confused with legalization – sometimes by accident, but sometimes on purpose to confuse the discussions. They are not the same thing. Under legalization, the sale, acquisition, use and possession of drugs are legal and regulated by Government. Our current policies regulating alcohol and tobacco are core examples of this approach in practice. Under this regime, the drug trade is taken away from criminal gangs, whose lucrative illegal markets are undercut and reduced.

On the other hand, under the decriminalization model adopted by a number of countries around the world, the use and personal possession of drugs remains prohibited – but is no longer a crime: it is instead punishable by administrative sanctions much like traffic violation offenses are. Sanctions may include fines, community-based service orders, warnings, education classes, – or no penalty at all.

The crucial difference is that, under this regime, drugs are still illegal, but violations do not attract criminal sanctions or criminal records which can create significant barriers to obtaining employment, housing, government benefits, treatment, etc. At the same time, the supply, production and trafficking of these drugs remains illegal and criminal – and greater law enforcement resources can be focused on these ‘big fish’ instead of the ‘small fry’.

Decriminalization is not a new concept. Some countries never actually criminalized drug use in the first place, and the much-documented experiences of Portugal date back to 2001, when the Government made the decision to decriminalize all drugs for personal use, and reinvest the criminal justice savings into health and treatment services.

This debate globally has often generated more heat than light. You often hear questions like "So, are you saying that we should legalize drugs? Should we create a free-for-all for drug users and drug dealers in our communities?” But we just need to look at how this has worked out for Portugal: they have been able to: increase their spending on prevention and treatment; decreased spending for criminal prosecutions and incarceration; dramatically reduce levels of drug-related deaths; and reduce drug use itself among certain age groups. Drug use remains an issue in Portugal, but they have tackled the confounding challenges of stigmatization, marginalization and high incarceration of a substantial proportion of their population just for minor drug offenses.

The rationale behind decriminalization is to reduce the harms associated with criminalizing people who use drugs, because there are several risks associated with drug use – not least HIV and other infections, and the thousands of drug-related deaths every year.

Although the international drug control Conventions restrict the use of controlled drugs to medical and scientific purposes, they should not be interpreted as a validation for the repressive war on drugs. The criminalisation of the possession of illicit drugs for personal use was introduced by the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychoactive Substances – with Article 3(2) stating:

‘...each Party shall adopt such measures as may be necessary to establish as a criminal offense under its domestic law when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption”.

As has been noted by Release and others, the commentary for this Convention says plainly that this paragraph “amounts in fact also to a penalization of personal use”. However, Article 3(2) begins with the statement that any measures adopted shall be "subject to its constitutional principles and the basic concepts of its legal systems." Furthermore, Article 36 of the 1961 Convention states that countries “may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, aftercare, rehabilitation and social reintegration”.

This therefore allows countries to adopt less punitive approaches to drug possession and use – including decriminalisation – without breaching their international responsibilities, as has been formally acknowledged by the United Nations Office on Drugs and Crime.

Prohibition is built upon a premise that repression will act as a deterrence to drug use and supply. Yet no links exist between levels of criminalisation and levels of drug use – as was recently noted by the UK Home Office in their ‘Drugs: International Comparators’ report. In Ghana, prohibition has not seen a decline in drug use in the country since the coming into force of the Provisional National Defence Council Law 236 in 1990. The use of drugs such as marijuana and cocaine is on the ascendency, with thousands of people, particularly the youth, using drugs.

The current bill in Ghana focuses more on punishment than on providing a legal framework to support people who use drugs as an alternative means of curbing our drug problems. There are very few effective drug treatments available to people who suffer as a result of drug addiction. The current review process of our drug laws (for the first time since 1990) is an excellent opportunity for Ghana to make an assessment of what has worked and what has not worked over the years, and to adopt an effective drug law grounded on the health and wellbeing of its citizens.

Ghana needs to take a cue from other progressive countries and consider the decriminalization of drugs, as well as other alternatives to incarceration.