Drug Use and Human Rights Approach: An Overview

Drug Use and Human Rights Approach: An Overview

Chibuzor Gladys*

Abstract

Drug is a challenge that has brought untold hardship to both the users and the society. In response to the challenges, States and law enforcement bodies have over the years being combating drug use with prosecution, restrictions and approaches that have not helped in reducing this menace. Drug users complain of series of human right abuses which includes routine arrest, detention by law enforcement agencies, extortion, physical harm, rape and sexual assault as well as stigmatization and neglect. This paper evaluates the human rights effect of conventional means of combating drug use in our society and concludes that the rights of the users should be respected and protected. Although not recommending legitimisation of drug use, this paper advances the argument that the decriminalization of drug use could help achieve a better approach to the rights of the users and hence lead to a better control and reduction in drug use.

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* LL.B., BL, MPDI, ACI-Arb, CHMC; this paper is culled from a presentation at the international Congress on Drug Addict, held at Acapulco, Mexico, on 6^th-9^th December 2016. The writer also possesses certificates on juvenile justice administration in Nigeria, Multi-door Court system in Nigeria, National Summit on labour Dispute Resolution, Executive course on Human Rights And Drug Policy (University of Ghana School of Law, Legon); Certificate on Second National Symposium on Drugs and Drug Control Policy in Nigeria; A Fellow Nigerian Institute of Co-operate Administration, member, Chartered Institute of Arbitrators Nigeria, Institute of Chartered Mediators And Conciliators, National Association of women Entrepreneur and Focal Person South-South Region of Nigeria Community Intervention Network on Drugs, Director Centre For Advocacy on Drugs and Substance Abuse.

1. Introduction

The general notion and perception of what could be defined or described as drug use would depend on the factors considered. Defining drug use could be influenced by health, medical, social as well as criminal justice considerations. Whichever means is used in defining drug use, it could be viewed as dependent by the user on a substance to achieve cure, pleasure or to satisfy an addiction or for experimental reasons.

Drug use is diverse and could include medical, psychological, economic and social therapeutic reasons.[1]

The response across the globe to drug use has been similar; medical, psychological, faith based, counselling, scientific and legal institutions with the focus of restraining the rights and freedom of users. These have not achieved much reduction in the challenges posed by drug use.

This paper evaluates the efficacy of conventional means of controlling and combating drug use and analyses the effect of such control on the rights of the users. The abuses suffered by drug users are also considered.

It should be noted that not all drug use are problematic and not all drug users are addicts or drug dependants. Ironically, the society sees all drug users as drug addicts, hence same treatment. It is when drug use is out of the control of the user that he becomes addicted or dependent on drug.

People who use drug do also take prescription drugs as well as illicit drugs and other substances like alcohol, cannabis.

2. The challenges of drug use and conventional means of combating them:

All communities both at national and international level recognized that the challenges posed by drug use may create health and welfare hazard to humanity. It could also amount to social and safety problems. The utilization of law as instrument of coercion to fight drug use has resulted in some jurisdiction in high rate of homicide, which one may suggest is evitable.

The challenges associated with drug use could be social, health and psychological impediments.[2]Drug use when unchecked and uncontrolled could result to some social vices which in effect may impact on the economy and stability of the society. Again the health implication to the users and other people in close contact with them may be grave. In addition, since they are afraid of routine arrest by the law enforcement agencies, they find it difficult to access health services.

Once it is identified that drug use is dangerous to the user and the likelihood of degenerating into dependence or addiction the response from most states is strict regulation by law hence the word “war against drug”, for example in my dear country Nigeria, persons found to be in possession of illicit substances for use regardless of the quantity involved are subjected to prosecution and prison terms.[3]In few instances the option of a correctional home is explored, in both instances the demeaning and degrading treatment received by drug users from the law enforcement agencies appear to have hardened the resolve of the user rather than control and correct his dependence.

The agency in charge of drug enforcement in Nigeria is known as National Drug Law Enforcement Agency (NDLEA). The NDLEA Act 1989, as amended, provides as follows:

Prison term of not less than 15 years and no more than 25 years for anyone with unlawful possession or use of narcotic/illicit substances of whatever quantity and whatever purpose.
Individual can be made to undertake compulsory treatment and rehabilitation program.

With the above provision, the following issues come to focus:

(a) Rise in organized crime,

(b) Violence,

(d) Public health impact, and

(e) Corruption.

Even though one may not deny that the course of social justice and order dictates that there should be a regulation of drug use, experience suggest that punitive legislature has not brought about any reduction in drug use.

Below are the major provisions as contained in the 3 UN Conventions on drug.

The single Convention of 1961, 1971 and 1988 Conventions provide as follows:

1961 single Convention on narcotics drugs (and 1972 protocol amending it) primarily covering opium and its derivatives coco bush derivatives, notably cocaine and cannabis.
1971 Convention on psychotropic substances covering a wide range of manufactured psychoactive medications used pharmaceutically including amphetamines, and benzodiazepines as well as LSD and other psychotropic substance.
1988 Convention against illicit traffic in narcotics drugs and psychotropic substance primarily aiming to stop illicit trafficking money laundering and controlling precursors to drugs controlled under 1961 & 1971 conventions and also including a requirement that possession and purchase of controlled drugs be criminalized.

The three UN Conventions have been viewed with mixed misinterpretation with range of human rights abuses towards drugs users. Consequently, in evaluating the effect of the Conventions in line with human rights of drug users this paper will be able to highlight the aims of the (3) Conventions.

3. Evaluating the Effects of Conventional Means of Combating Drugs Use in Line With Human Rights of the Drug Users:

The challenges of welfare, slavery, degrading practices, cultural and domestic violence, and stigmatization led to the recognition of human rights across the globe. Commencing with the UDHR of 1948, most constitutions of the nations of the world have been adjusted to grant absolute or regulated rights to protect human life, dignity, freedom of movement and respect for person. The rights are recognized under such international and regional communities as International Covenant on Civil and political rights (ICCPR). The international Covenant on Economic, Social and Cultural Rights (ICESCR). The Convention Against Torture and Other Cruel, in Human or Degrading Treatment or Punishment (CAT), The Convention on the Rights of the Child (CRC), African Charter on Human and Peoples’ Rights; the African Charter on the Rights and Welfare of a Child, and The African Charter on the Rights of Women in Africa. These instruments all uphold the right of every citizen to be treated with dignity and without torture. The 1999 Constitution of the Federal Republic of Nigeria, which is a supreme law, sets out the fundamental human rights of the citizens in its provisions as follows:

Rights of Life
Rights to fair trial
Right to freedom of movement
Right to health

It should also be stated that the provisions of the article 33 of Convention on the Rights of the Child[4] and section 25 of the Child’s Rights Act of Nigeria also call for the protection of children from the sale, use, production and trafficking of illicit and psychotropic substance.

In considering the provisions of UN 3 convictions for drug policy and the human rights approach the following issues are to be taken into consideration:

The Conventions call to adopt science based approach on prevention and treatment.
The Conventions do not mention and never support “compulsory treatment.”
The Conventions are not against harm reduction strategies when not carried out in isolation or as an alternative to demand reduction.
The Conventions are not against the use of controlled narcotic drugs and psychotropic substance in the treatment of drug dependence.
The Conventions never promote violation of human rights.
The Conventions never support the death penalty for drug related crimes.

It is important to reaffirm the original spirit of the Conventions, focusing on health. The Conventions are not about waging a “war on drugs.” but about protecting the health and welfare of mankind.

Respect for the human rights of drug users from the above stated provisions of human rights both at the international, regional and national levels amounts to a mere paper provision; that is to say, that drug users are actually not being considered in these provisions. Usually drug users complain over series of human rights abuse they experience from law enforcement agencies and the society. Such abuses include;

Torture, cruel and inhuman activities associated with the mode of arrest by the law enforcement officers over drug use. Death threats, beatings to extract information, extortion of money, rape, etc.
Right to life: In some countries drug offence attracts death penalty. These are carried out by hanging, firing squads, beheading and use of lethal injections. This is a grave violation of right to life as stated in the Universal Declaration of Human Rights which is an international law.
Right to freedom of movement, fair trial, incarceration and arbitrary detention; People arrested over drug use can languish in pre-trial detention for long periods. Some spend as much as two years in custody before they will be brought to face the charge which often times will last for a long period of time before the judgments would be given which may attract up to 15years jail term.

iv. Right to dignity of Human person: Female drug users often complain of sexual assault from the law enforcement agencies in the course of their arrest many do complain of forced sex and requests for sex in exchange for Release.

v. Right to Health: It is the responsibility of the government of any given nation to ensure that the health care system of the state is paramount and not compromised. The outbreak of diseases and infections are put to check and control through the health ministry. HIV/AIDS,TB, hepatitis B,C and other also fall into such groups but often times drug users find it difficult to access these facilities due to fear of arrest by law enforcement agencies over their drug use. This alone can pose a very big challenge to the health of the drug users who are not only facing the risk of arrest but also stigmatized by the health service providers and other persons. Consequently, this is also great challenge for the health sector in getting the actually data of the people in need of health services.

vi. Convention on the Rights of a child in Article 33 and the child’s Right Act (Nigeria) as earlier mentioned stated that children are to be protected from the sale, use, production, and trafficking of illicit and psychotropic substance. It is important to state that the rights of a child ought to be seen as human rights and if so admits then we need to state most people and even nations need to ensure that this provision be enforced. In some countries drug using children are criminalized, and in many cases they are been stigmatized if their parents are sent to jail or detention for drug use, some are detained with their parents.

4. a. Human Rights Approach to Drug Use

Human rights belong to every individual without discrimination or discretion forever. Human Rights are universal: a birth right of every member of the human family defines what government can do to us and cannot do to us, and should do to us. Human rights are inalienable; one cannot and should not lose their rights or be denied rights because someone decides that one person is less human than another.

From the above stated, in relation to the drug user it is an obvious fact that the drug users are denied of these provisions. They are faced with stigmatization from the society, their family, and government even in terms of social services from the government. For example, the presenter was a participant in a workshop on legal Aid services for the indigent citizens and the presenter asked the organizer of the workshop, if a drug arrestee can access the service of legal Aid council. The presenter was made to know that drug arrestees are not included in provisions which even cover murder cases. It was a very big shock to the presenter on the rate of inhuman treatment meted to drug users.

Since human rights are universal and attracts obligations and responsibilities from the government, the question that also calls for attention is if such is the provisions with the drug user who is in custody for a minor drug offence and is denied of treatment. The government by its legislation resolved to incarcerate as the punitive measure for the drug offence while the same government also fail in its duty to provide health care services to the drug users while in prison custody. A close look to some so called detection centre reveals a less than human treatments: Overcrowding starvation, diseases, hard labor are facts obtainable in some of these places.

Human rights are inalienable, and one cannot and should not lose their right. Often time one keep musing whether drug use is a means whereby one’s human rights can be said to be given up. A drug user cannot stand out for his/her right because of the fear of arrest for his/her drug use. For example if a female drug user is been raped she cannot be bold enough to make a formal report at the station because of the fear of arrest and stigma attached to a user. Her being a drug user would be seen as a justification for the act of rape. This will actually deny her of her right to seek for justice.

Human rights are indivisible and cannot be denied. Users are faced with challenges from their families and the society as a whole just because the society has different perception about them which often time is erroneous. Some of them are disinherited by their family with the view that they are irresponsible people in the society. The health and welfare of drug user are not paramount to the government whose aim of addressing drug user is incarceration with no medical and social care.

4b. Evidence based approach

It is imperative that in dealing with the issue of drug use, public health approach will be the major focus. According to the UN Secretary General:[5]

We must consider alternative to criminalization and incarceration of people who use drugs and focus criminal justice efforts on those people in supply. We should increase the focus on public health, prevention treatment and care, as well as on economic, social and cultural strategies.

Evidence based approach seems to look into what is obtainable and realistic to a given situation and not presumed. It has to do with what will be achievable with a resultant effect.

The wrong policy of dealing with drug use has been able to achieve one basic thing which is ensuring that the prisons are overcrowded with minor drug offences. This is coupled with all manner of inhuman treatment experienced by drug users and gender-based violence against female drug users.

Decriminalization and public health approach centred in harm reduction is the only option. President Barack Obama commutes the sentences of 46 non-violent drug offenders who were found guilty of crimes involving marijuana cases.

Tens of thousands of inmates who have applied for clemency remain awaiting. In his words he stated that:[6]

$80 billion criminal justice budget could better be spent on universal pre-school for every three and four year old, doubling teacher’s salaries, eliminating tuition at public colleges and universities, job training programs, research and development, and financing new roads, bridges and airport.

The notion that decriminalization will encourage the use of drug instead of eliminating it has been proved wrong by Portugal.

Research and studies have shown that criminalization has not worked and does not bring about any positive change to the situation.

The US former Attorney General Mr. Eric Holder once admitted that US criminalization of drug addicts has been a failure and called for an end to America’s war on drugs.

4c. Decriminalization

Portugal chose a new approach to drug control by decriminalization drug possession and use, though critics held the view that this will lead to tourism with rapid increase in the country rate of drug use, today, Portugal provides a valuable case study of how decriminalization coupled with evidence based strategies can reduce drug consumption, dependences, HIV infection and create safer communities for all. The procedure adopted by Portugal is as follows:

Police officers now issue citations, instead of arrest of persons found in possession of small amount of illicit substances.
People who receive these citations are ordered to appear at a “discussion commission” an administrative panel that operates outside criminal justice system.
The panel with two health practitioners and one legal practitioner examines the individual’s circumstances and determines whether to make treatment referrals, issue fines, or impose other non-criminal penalties.

The basic principle is that addiction is treated as a disease and ministry of health mandated, instead ministry justice, to decrease drug demand and dependence. This has helped to reduce the stigma around drug use and made drug use less political subject which is difficult to take about.

Decreased youth drug use, drug-induced deaths reduced from drastically to 80% falling HIV/transmission, less crime, reduced criminal justice expenditures, greater access to drug treatment. The number of drug offenders in Portugal prison system from 44% to 21% in 2008.[7]

This paper will also need to look into policies of other countries:

Netherlands sold in licensed shops
Portugal: decriminalized, efforts focus on treatment of drug users.
Spain: possession, growing and consumption at home legal.
Argentina: possession is legal in quantities for personal use.
Germany: possession is legal in quantity for personal use.
Ecuador: possession is legal in quantities for personal use.
Belgium: consumption at home is legal
Canada: decriminalized for medical use
Finland: decriminalized for medical use.
Israel: decriminalized for medical use.

5. Evaluation

The millennium development goals (MDGs), with 8 goals is centred on promoting their rights. Three goals can be said to be directly related to this paper. They are goals 1,5 and 6 respectively, which are: eradicate poverty and hunger, improve maternal health and combat HIV/AIDS.

Where a country spend a lot of resources on criminal justice over what is not achievable, it is obvious that such country would be left with poverty and hunger.

Drug war has not made any positive impact globally yet governments of most nations vote a lot of resources towards that. Also where great populations of youth who are the major work force of a nation are confined in prison custody the economy of such country will be affected.

It should be pointed out that female reproductive health right is also human rights. The pre-trial detention and abuses associated with the mode of arrest by the law enforcement agencies like rape, bodily assault could also pose some challenges to the female reproductive health rights of the female drug users and if such conducts are not addressed properly it might result to maternal health problem mostly among females who are still within the reproductive age.

A lot of funds, grants, donations and Supports have been voted for HIV/AIDS project. Consequently, if the injecting drug users (IDUs) are denied access to clean syringe and treatment due to fear of arrest. It will be difficult to justify the use of such funds. In evaluating the challenges faced by drug users in line with human rights provision and MDGs it will be considered to be below human standard.

6. Conclusion

Sustainable Development Goals (SDGs) embodied both UN Charters and values of rights and justice for all and the responsibility of States to rely on the best scientific evidence as they seek a better mankind. People who use drugs do not in any way forfeit or give up their human rights as a price of them being drug users’ it is then important for the government to as a matter urgency ratify whichever policies and procedures of handing the issues of drug use to be in line with human rights provisions.

The governments of the UN member states should endeavour to live up to expectations in respecting, upholding and abiding by the Conventions and charters which they are signatories to as a mark of responsive governance. According to Kofi Annan:[8] “I believe drugs have destroyed many people but wrong government policies have destroyed many more.”

7. Recommendations

Drug use should not be treated as a criminal offence but rather a public health and socio economic developmental issue.
Drug use issues should be handled by public health officers rather than criminal justice approach.
Need to build the capacity of the law enforcement agencies through training on human rights of the drug users
Evidence-base drugs prevention treatment care and support program. That will go beyond just provision of information but address risk factor that contributes to drug use.
Need to eradicate all forms of substandard, dehumanized detention and rehabilitation centers and establishment of evidence informed and Human rights based health and social service in communities in compliance with a Human rights approach.
Need to provide supportive service for people who use drug
Policy reform system to reduced people vulnerability to illicit drug use as well as addressing gender base violence against women who use drugs.
Need to ensure that legal aid services or pro bono be extended to drug users.
An urgent call to human rights organizations to have a comprehensive data on human rights abuse of drug users as obtained in various countries and ensured that they are addressed effectively.

10) Need for the U.N to sanction any member state that fails to uphold the Convention they are signatory to, especially those that relate to human rights abuse.

[1] Human rights abuses of experienced by people who use drugs a paper presented by Molobe, Ikenna Daniel at UNODC training workshop in Abuja held on 21-23 Sept 2016.

[2] Mexico drug war: fast facts CNN.2014 http://edition.cnn. com/2013/09/02/world/Americas/mexico-drug-war-fast-facts/, visited November 8^th, 2014.

[3] National Drug Law Enforcement Agency Acts, CAP N30 Law of the Federation of Nigeria, 2004, section 11(d).

[4] Article 33 of UN Convention on the Right of a Child

[5] Banki-moon, UN secretary, on international day against drug abuse and illicit trafficking, June 26, 2015.

[6] Recapitulation on war Obama speech available online: http//www.bbc.com/news/world-us-canada-33511974, visited 12/10/2016.

[7] Speech made by former US AG available at http//www.bbc.co.uk/news/world-us-canada-23675942, visited 12/10/2016.

[8] Quotation available at: http://www.governancejustice.org/ blog/2015/ 5/27/i-believe-that-drugs-have-destroyed-many-lives-but-wrong-government-policies-have-destroyed-many-more, visited 23/July/2017.

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