- Government Increases penalties to 10 years imprisonment or P500 thousand
- Closes door for medicinal marijuana
- Proposed legislation out of sync with international trends
- United Nations World Drug Report 2018 recognises medicinal marijuana
Parliament has gazetted new legislation aimed at ratifying the 1988 United Nations convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Bill, gazetted on June 1st, 2018, seeks to domesticate into local law Botswana’s international obligations and curb the growing international concerns over the increased use of illicit drugs.
Despite the increasing international trends recorded by the United Nations (U.N.) World Drug Report released on June 26th, 2018, the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Bill focuses primarily on the use of marijuana and its cultivation, criminalising all forms of the weed, including medical and industrial uses.
Under current legislation, the Drugs and Related Substances Act, the possession and use of cannabis/ Weed of over 60g carries a penalty of imprisonment, without the option of a fine, and without option of suspension, to not less than 5 years or more than 10 years, and to a fine of not less than P7 000, or in default of payment of the fine to an additional term of imprisonment of not less than one year or more than two years. Possession of less than 60 grams of cannabis, renders a person liable to imprisonment for not less than one year or more than five years, and to a fine of not less than P1 500 or more than P5 000, or in default of payment to imprisonment for not less than one year or more than five years
The proposed legislation marks a substantial increase in the penalties for being found in possession of “weed”. The Bill increases the penalties for possession of cannabis to between P20 thousand and 3 years imprisonment for 30g and P500 thousand and 10 years imprisonment for over 60g.
The proposed legislation not only increases the penalties for recreational use of “weed” but creates an entirely new penalty for medical practitioners prescribing the drug for medicinal purposes by providing that medical practitioners who prescribe the drug shall be removed from the medical practitioner’s roll.
The 1988 United Nations Convention specifically requested countries “subject to constitutional principles and basic concepts” of countries’ legal systems, to establish “as a criminal offence […] the possession, purchase or cultivation of drugs […] for personal consumption.”. United Nations’ experts have indicated that given the first part of the requirement and the different national interpretations of “a criminal offence,” combined with the possibility of providing alternatives to conviction or punishment, there has been a wide variety of methods of ratifying the convention across the world.
The various UN conventions that deal with illicit drugs, do not specify that drug use itself should be a punishable offence, although each country is empowered to legislate against drug use as a specific offence if it chooses to do so. In addition, the conventions do not make a link between the type of drug and the penalties to be established by national law. The schedules to the conventions affect the procedures for the illegal trade of drugs, but countries are not bound to use them to vary penalties for offences. The 1988 Convention also requested countries to take appropriate measures to prevent illicit or unregulated cannabis cultivation and to eradicate cannabis plants on their territory.
International law does not prevent cannabis, or cannabis-based products, being used as a medicine to treat defined indications. According to the UN conventions, the drugs under international control should be limited to “medical and scientific purposes”. Article 28 of the 1961 Convention, for example describes a system of controls required if a country decides to permit the cultivation of cannabis that is not for industrial or horticultural purposes, while the 1971 Convention controls THC levels.
Cannabis products that are used for medicinal purposes, whether the psychoactive THC or the non-psychoactive cannabidiol (CBD), are generally referred to as ‘medical cannabis’. Cannabis products used in manufacturing are commonly referred to as “industrial hemp.” Cannabis products used for non-medical intoxication are referred to as non-medical cannabis, retail cannabis and recreational cannabis. The term “non-medical” cannabis does not make clear that it may not be for industrial purposes, while “retail” refers to the form of distribution, rather than the motive for use such as “medical” and “industrial.” The UN therefore uses the term “recreational’ for the psychoactive cannabis products intended for non-medical intoxication.
While Cannabis is banned in most countries around the world there is a growing number of countries that have decriminalised its use in recent years. Government has ignored this growing awareness of the medicinal benefits of weed and legislated in the opposite direction.
Canadian Prime Minister Justin Trudeau remarked following the legalisation of “weed” for recreational use in Canada that, “it’s been too easy for our kids to get marijuana – and for criminals to reap the profits”.
On June 20th the Cannabis Act was passed by the Canadian legislature by a vote of 52 to 29. The Canadian bill controls and regulates how the drug can be grown, distributed, and sold. Canadians will be able to buy and consume cannabis legally as early as September 2018. It will however be illegal to possess more than 30 grams of cannabis in public, grow more than four plants per household and to buy from an unlicensed dealer. Cannabis possession first became a crime in Canada in 1923 but its use for medical purposes has been legal since 2001.
Canada is only the second country in the world to legalise the drug’s recreational use. Uruguay became the first country to legalise the sale of cannabis for recreational use in December 2013, while a number of US states have also voted to permit it.
In 2015, Canadians were estimated to have spent about C$6bn ($4.5bn, £3.4bn) on cannabis, almost as much as they did on alcohol.
The UK government said recently it would review the use of medicinal cannabis. Medicinal weed is legal in 14 European countries as well as in Israel, Argentina, Puerto Rico, Panama, Mexico, Turkey, Zambia and Zimbabwe.
In the United States, medicinal use is allowed in 29 states and the District of Columbia. Nine States have legalised both medical and personal cannabis use while Spain, the Netherlands, Portugal, Slovenia, Jamaica, Chile, Peru, Colombia, Ecuador and Luxembourg have also relaxed legislation regarding its recreational use.
In 2017, Lesotho became the first African country to grant a license for medicinal marijuana. According to the Government of Lesotho it based its decision to legalise the growing of marijuana for medical purposes due to the potential it created as a source of national revenue, rather than petty crime. Lesotho’s approach marked a significant shift in policy in a region where marijuana is widely used and regularly exported across borders illegally.
Early this year Zimbabwe became the second African country to legalize marijuana for medical and scientific purposes. Dr David Parirenyatwa, the country’s Health Minister, said in a government notice that individuals and businesses would be able to apply for licences to cultivate cannabis for medicinal or scientific use.
The five-year licence authorises growers to possess, transport and sell fresh cannabis, cannabis oil, and dried product. Zimbabwe viewed legalization of medicinal cannabis production as a means of economic diversification as government sought to boost the economy.
In 2017 the South African Supreme Court ruled that the private recreational use of marijuana was legal. The South African government has however appealed the ruling to the Constitutional Court.
The United Nations (U.N.) World Drug Report released on June 26th, 2018 as part of the U. N’s campaign against the illicit traffic in narcotics and psychotropic substances has recorded that Africa is second only to the Americas in terms of production and consumption of marijuana. The untapped revenue stream from this natural resource to drive economic diversification is for all appearances lost in an attempt to comply with misunderstood and wrongly applied international conventions.