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Drugs And Substance Abuse In Kenya

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Drug and Substance abuse is recognized globally as the greatest impediment to sanity of our social fabric, the greatest health risk and also it is touted to be one of the biggest derailments to our Economic growth. With all the misgivings associated with this menace, the international community; to which Kenya is a member resolved to tackle the issue amicably and the first initiative was to establish various conventions that are geared towards enhancing that synergy, cooperation and coordination between member states so that victory can be realized in due time. Kenya on its part has also made significant strides towards achieving this. First, parliament has over years enacted legislation to that effect and also a lot of policies have been crafted to enhance organization. However, taking a pragmatic look at the efforts of the Government of Kenya, it is evident that we are not yet there. The Statistics are alarming. Deaths due to consumption of illicit liquor have risen, the youth are getting deeply immersed into drug abuse and more drug barons are still walking freely unscathed and transacting. The process of fighting illicit drugs starts with a clinical legal framework and policies which act as the blueprint of the whole mission. This paper intends to analyze the current legal framework and policies governing the fight against drug abuse and try to assess the efficacy of these instruments.

Table of Contents

The Constitution of Kenya is very apprehensive of the expectations of the Kenyan Citizens with respect to Social and Economic Rights, most notably on health and environment. Article 42 states that, 1“Every person has the right to a clean and healthy environment, which includes the right: to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and to have obligations relating to the environment fulfilled under Article 70.” Aside from the Environmental protection individual health of citizens is also catered for.2 Article 2(5) of the Constitution also provides that, “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” In essence, all treaties and conventions that have been ratified by Kenya have equal force of law in Kenya as Kenyan laws. Kenya has ratified a number of treaties on drug abuse. These include the Single Convention on Narcotic Drugs of 1961 as amended in 1972; the Convention on Psychotropic Substances of 1971, and finally the United Nations Convention Against illicit traffic in Narcotics and Psychotropic Substances.

All of these provide a uniform strategic framework within which the member states can use to combat this hazard.3 The existence of these Articles mainly confers specific rights to all Kenyan citizens in the sense that they can demand these facilities or amenities to be provided. On the flipside, it equally imposes an obligation on the state to ensure that all these are catered for. But it must also be acknowledged that the same constitution also takes into account the limited resources that the state may have to deal with that is why in Articles 244, it states that these rights may have to be realized progressively according to the available resources. Despite the existence of all these provisions and commitments by the state, the alcohol and drug abuse situation in Kenya is in dire condition.

My experience at NOSET MAISHA TRUST was a shocking one because of the many people who flocked in the organization for treatment over drug abuse. Even the statistics that have been documented are equally eye catching because ostensibly, over three million adults are affected by drug abuse. In a nutshell, it is evident that on paper, Kenya has shown intent to contain drug abuse by entering into both municipal and international obligations. What remains a puzzle to many observers is whether the state has done enough towards achieving an addiction free nation. This paper intends to analyze the various initiatives that the government has employed, be it legal enactments or policies formulated; vis a vis the status of alcohol and drug abuse in Kenya. The paper will also make critical recommendations that can help improve the situation at hand.

Various laws and policies have established specific agencies tasked with combating drug and substance abuse. In this segment I will endeavor to discuss the various institutions that have been mandated either individually or in coordination with their sister institutions. Some of these institutions include the National Campaign Against Drug Abuse, the Police, the National STI /AIDS Control Program, the National Aids Control Council National Campaign Against Drug And Substance Abuse (NACADA)

Though widely known as NACADA, the National Drug Control Authority Act of 2012, sought to make two transformations to this body. First, Section 4 establishes the National Drug Control Authority, a substitute name for this institution. The second set of transformation is to do with the expansion of its mandate. The Act widened the Authority and responsibility of the Institution and incorporated other functions such as 5facilitating coordination between all ministries and institutions or agencies that enforce drug and substance abuse laws. Also, the organization is tasked with ensuring seizure of proceeds are achieved as a result of trading in illicit drugs. Additionally, this agency is entrusted with coordinating with other international organizations so as to share ideas and borrow from practices out there6. The task of researching, analyzing collating and collecting data stemming from conducted researches. In every sense of the statement, this institution is the lieutenant on the frontline in this battle against drug abuse in Kenya.

This is because in it has been bestowed with the powers to coordinate all other agencies that fight drug abuse in Kenya including ministries. Also, the law requires that the institution empowers other non-governmental organizations and the civil society organizations which are established at the grassroots in the society and in touch with the day to day man. NACADA does this by financing these organizations so as to facilitate their ventures. The maximum that it can pump into such organizations is Kshs. 300,000 and this can only happen if it is convinced that the objects of that receiving organization are in consonance with its blueprint. On top of financing the civil society, NACADA also has the ability to give grants to either institutions or individuals who are willing to undertake research with respect to emergent rends of drug abuse or invention of new drugs. Another most important role of this institution is to do with enforcement. The new Act also successfully elevated its enforcement powers in the sense that it can recruit enforcement staff to help in arresting and containing people who flout the policies and regulations that will be in place.

The Kenya Police Anti Narcotics Unit
This is a core department within the police force which was established in 1983 and charged with combating drug trafficking and crimes of the same cadre. It is within the behest of this department to investigate drug related offences; detect and seize illicit drugs either being trafficked or otherwise; apprehend and prosecute drug offenders in court; gathering, analyzing and disseminating drug-related intelligence; keeping records in a database of drug-related offences and finally coordinating with both municipal and international enforcement agencies. This unit operates under cover and it is thus directly answerable to the director of Criminal Investigation Department. However, given the fact that not much information about officers under this docket is to be made public, it is alarming the way many of them have been murdered in cold blood while undertaking their responsibilities. The Judiciary

The process of trying and sentencing guilty drug offenders is exclusively within the powers of the Judiciary. The work of the judiciary and the punishments that it accords such offenders is geared towards achieving certain results which vary in each case. First is the deterrent objective of punishment. This simply means that drug offenders are punished so as to send a message to the public that such practices are wrong and cannot be accepted by the society. The second objective of punishment in this sense is to achieve retribution. With retribution, a person has to bear the burden of whatever offence he has committed. So this is just a way of getting back to the offender. Also, these persons may be incarcerated so as to separate them from the public and thus prevent them from influencing others or being a social hazard. The final reason as to why these persons are punished is to do with rehabilitations. In our correction institutions there are enough mechanisms to ensure that these persons reform to become useful members of the society. Some of the punishments that are meted against these offenders are highlighted in the Anti-Narcotic Drugs and Psychotropic Substances Act of 1994.

For instance, being in possession of illicit drugs accrues a punishment of imprisonment for not less than 10 years and not more than 20 years. Handling illicit drugs comes along with a penalty of imprisonment for 20 years or a fine of not less than 1 million or three times the market value of the handled drugs. Trafficking on its part comes with a fine of 1 million shillings or 3 times the market value of the drugs in question, whichever is greater. Additionally, a drug trafficker can also be subjected imprisonment for life. Another offence is that of cultivation of illicit drugs which is punishable by imprisonment for a period not exceeding 20 years and a fine of 1 million shillings. The final offence in this category is that of usage of illicit drugs. This offence is punishable in the same manner as cultivation as aforementioned. Non-Governmental Organizations, Faith Based Organizations and the Private Sector. We are all not oblivious of the prevailing circumstances and the overriding fact that government agencies are incapable of traversing every corner of this republic and spread the resources and services to these places.

Therefore NGOs, FBOs and the Private sector come in handy to avert any adverse situation that may eventually be occasioned by such nonfeasance. It is these organizations that interact daily with drug addicts, drug peddlers and even cultivators. Therefore they are quite instrumental in drug and substance abuse control and prevention. Such services like counseling, treatment and rehabilitation can be easily expedited by these institutions at the grassroots level. The Kenyan legal regime acknowledges the impact of these institutions to some extent. That is why the Alcoholic Drinks Control Act, 2010 establishes the Alcoholic Drinks Control Fund in section 5(5). This section provides that 15% of this fund may be channeled towards supporting Civil Society programs if the objectives of the respective organizations conform to the objectives of NACADA. The ventures that can be supported by this fund include public awareness, rehabilitation, research, policy advocacy and imparting specific life skills to women and children in the society. However, for an organization to qualify for such support it must also have a comprehensive management Board that participates in decision making and can thus be accountable for any loss or financial responsibility that comes by. The Customs Department

As one of the four departments falling under the Kenya Revenue Authority, this department has been used strategically to combat drug trafficking mostly by regulating imports and exports and seizing any suspicious stuff which may have been disguised as something else yet it is drugs.

FACTORS THAT IMPEDE THE EFFECTIVE CONTROL AND PREVENTION OF DRUG ABUSE. There are several factors that greatly hamper the effective drug abuse control and prevention. These range from social factors, legal factors and even political factors. I will endeavor in this segment to highlight some of the reasons as to why we have not progressed in the fight against this social hazard. Limited Finances and Facilitation for NACADA

NACADA is a body created pursuant to legal notice no. 140 of 2008. From a political angle, it falls within the docket of the office of the president and provincial administration. That means that its financial share is part of the budgetary allocation given to the office of the president. Owing to this, the money that passes to the parastatal is so minimal that most of the services it provides are compromised either in quality or quantity. First, in the event that the organization makes advertisements in the local dailies, such an excerpt has to be sandwiched between other advertisements, others which may be promoting use of drugs e.g liquor companies. The eventual result of such a mix up is that the agenda or message that NACADA may have wanted to convey is neutralized in its entirety. Also, NACADA is an institution which is under facilitated and even though much blame has been heaped on it for under performance, we are not oblivious of its working conditions.

A good demonstration of this is that the organization does not have an independent forensic laboratory. Therefore it has to depend on the government chemist to conduct such laboratory analyses and all these fundamentally compromise the confidentiality of the whole institution. To ad on that, with the advent of County governments and devolution, the personnel of NACADA have not been fully dispatched to other counties in the periphery. So the situation at the ground is that the county commissioners or simply the provincial administration officers are the ones who oversee the process of control and prevention of addiction and drug abuse. This state of affairs then simply means that the professional angle within which this battle was to be fought is held in abeyance because these officers do not have any special knowledge when it comes to understanding the essentials of drug abuse. In fact, the only type of drug that tey have significantly tried to prevent from being abused is alcohol and this has been carried out by limiting the duration or hours of consumption. Political Challenges

The government of Kenya as it is now has shown a strong willpower to combat both drug trafficking and drug addiction. These efforts started with the establishment of NACADA as a parastatal in 2007 and this has been followed by a series of stern demonstrations of the government’s position. In fact recently we witnessed the burning of cocaine worth 2 billion shillings in a bid to send a strong message to the international community. But the truth of the matter is that not all political players in the government have the same drive to fight this menace. It can be argued that some of them have an interest in the drug trafficking business and always seek a cover up of their actions either by blackmailing the investigating authority or even diverting the attention of the police or the nation to other non issues. On the same point, it is evident that there are some untouchables in this fight against drug abuse. For instance, while enforcing the 11.00 pm rule on closure of pubs, the enforcement authorities cannot dare interfere with the business premises of some prominent political figures. This would be either out of fear or self restraint or even having been intimidated by these prominent persons in the society. Corruption

This point has been partly canvassed in this paper but nonetheless, a lot has to be clarified. The prevalence of corruption in the Kenyan society has escalated in the recent years. This essentially has equally contributed to the establishment of a culture of impunity. With drug abuse, the problem becomes more sophisticated because here we are dealing with big money ventures and so it is not easy for a peddler to let go without putting up a fight. Corruption cuts across various institutions that are tasked with fighting drug abuse including the police, the judiciary and even the customs department. When it comes to the judiciary, the complaint that is put forward by almost all the stakeholders in this campaign about the judiciary is that the right to bail has been mutilated and reduced to a scapegoat that is resorted to before releasing these notorious drug barons. Also, it is alleged that ultimately most of these accused persons are released on grounds of lack of sufficient evidence when there seem to be enough evidence to secure a conviction. In support of this supposition, the statistics are that not many high profile convictions have been secured against persons apprehended in the act of ferrying these drugs.

In a bid to correct the situation, we have seen the judiciary coming up strongly and initiating judicial reforms that are designed to help build much more confidence in the institution. The process is ongoing but indeed not much has been done to avert the state of affairs. The police are the most affected by this vice. My experience at NOSET MAISHA TRUST had a great bearing to my understanding of the drug trafficking business in Kenya. The first way in which the police are linked with this scum is when it comes to apprehending the masterminds behind such crimes. The reliable sources interacted with confided in me that the real orchestrators of these crimes are never busted. This is because they always have an insider in the police force and so when an operation is planned in their area, they are always tipped of the impending arrest. Another angle in which this can be viewed is regarding aborted missions.

The existence of drug barons’ moles in the police force has been a formidable impediment against the war on drug addiction. The task of impounding such delinquents has to be conducted undercover. But in most cases we have seen incidents of many undercover police officers being murdered in cold blood. It can only be insinuated that these officers are in most cases set up in a trap and so it is easy to finish them. The last docket that has been grossly affected by corruption is the customs department which falls under the Kenya Revenue Authority. Drugs can only be ferried in and out of our country through our formal borders in which every station has agents of the customs department there. How then do these drugs infiltrate our borders and become part of the dreaded social hazards we are facing? A COMPARATIVE ANALYSIS WITH THE SITUATION IN THE UNITED KINGDOM The UK Legal framework

The control of use of drug use in the United Kingdom is governed by various Acts of Parliament namely; the Misuse of Drugs Act of 1971, The Customs and Excise Management Act of 1979, The Road Traffic Act of 1972, The Drug Trafficking Act of 1994 and finally the Crime and Disorder Act of 1998. The Misuse of Drugs Act was enacted to control the non medicinal use of drugs in the UK. This law criminalizes possession, misuse, unlawful use and unlawful supply of certain controlled drugs within the UK. The statute also classifies the various types of drugs from schedule 1 to 5 in order of their severity in terms of effects. In other words, some drugs like cannabis, ecstasy, coca, leaf are stringently controlled while others like cocaine are recommended for medical use while others are not restricted at all when it comes to consumption. The disparity between these categories is informed by the different risks of addiction posed and also different hazardous effects of the respective drugs. One other significant aspect of the UK regime is that they have an independent legislation providing for procedural formalities when handling drug trafficking cases and suspects.

This is contained in the Drugs Act of 2005. The Act provides that if a person is found in possession of drugs of a quantity more than that of normal use, the burden of proof shifts to him. He has to justify the possession. There is also in force the Medicines Act of 1968 which regulates the manufacture and supply of medicines. Here, medicines are categorized into three, prescription medicines which can only be supplied by doctors and sold by pharmacists; pharmacy medicines which can only be sold by pharmacists and finally general medicines which can be sold by anyone. It is noteworthy that this classification is essential for easy identification of whether such drugs are in good hands. It is in this spirit that the Customs Management Act of 1979 criminalizes unauthorized exportation or importation of restricted drugs. Another divergence from the position in Kenya would be that the Crime and Disorder Act of 1998 introduces new orders in the criminal justice system of the UK. This is the drug treatment and testing orders which are enforceable and it mainly targets people convicted of crimes committed with a motive of maintaining their drug use.

The most synonymous aspect with these two regimes is that the Drug Trafficking Act of 1994provides for seizure of assets and property of a person convicted of drug trafficking. This seizure can be effected even if it cannot be proved that the assets are not the direct proceeds from the drug trafficking business. It also has to be underscored that the UK policy on alcohol and drug abuse is more crime driven and treatment led. This focus was adopted courtesy of a study conducted with respect to the correlation between drug abuse and the rate of crime. It was discovered that the moment the rate of drug dependence went down, the rate of drug abuse equally reduced. Therefore the approach is that drug dependents have to be adequately treated for them to reduce the rate of crime. (Peter Reuter)The fight against alcohol and drug abuse in the UK reached greater heights in 1998 when the government launched the campaigned dubbed “Tackling Drug Abuse Together For Better Britain.” This launch was followed by the establishment of multi-agency Drug Action Teams which are the equivalents of NACADA in Kenya. The emphasis of this body has been to pursue treatment of drug dependents in a bid to reduce crime in the society.

These Drug Action Teams have also partnered with other agencies such as the Crime and Disorder Reduction Partnerships, Communities Against Drugs initiative, the Drug Interventions Programme and the Tough Choices Program. In the UK prevention of these drugs from spreading to other parts is also a key ingredient in this whole fight. The preventive measures that are employed include destruction of crops in countries in which they are produced, seizing the illicit drugs before they are imported in the country impounding on illicit business of either wholesale or retail drug sale and finally reducing demands of drugs by apprehending and incarcerating the drug users, suppliers and even producers. This analysis can be summed up with the observation that the United Kingdom has put in place more concise and precise policies and laws, very detailed and addressing a defined target audience. The coordination between agencies tasked to combat drug abuse is equally effective and orderly. Much more has to be done in Kenya so as to synchronize all these institutions and set up definitive agendas.

From the above findings in this research paper, a number of observations can be noted with respect to the status of the fight against Drug abuse in Kenya. First, it will be prudent for me to acknowledge the efforts that have been exhibited by the government especially the President towards this noble course. It is this political will that is paramount for any policy that is in writing to be fully implemented. However, there are many shortfalls that can be associated with the structural framework of all agencies that have been bestowed with the responsibility of fighting drug abuse. The first is of course, the deficiency in integrity in the institutions that have been put in place. Considering my comparative analysis with the UK regime at no point did i encounter this level of mistrust between the public and the authorities that ought to protect them. Without integrity, there is no trust and so it would be so difficult for these agencies to execute their mandate. Secondly there are flaws in view of the status of our criminal justice system and how drug dependent offenders are treated upon conviction. The Kenyan laws mostly emphasize on medical examination for persons who are suspected not to be in the right state of mind.

But many at times drug addicts are convicted and the court does not consider incarcerating them in a place separate from other inmates so as not to endanger the welfare of the latter. Such addicts may be a bad influence to other inmates and introduce them to drug abuse or even a threat to their safety due to irrational violent acts. Also, NACADA has been equaled to a toothless dog by many critics of the work they do. With little financial capitation and also very little enforcement power the institution is as good as useless. NACADA has the mandate to investigate these crimes and recommend the indictment of persons they deem as suspects. But what happens if it has to account for all the finances it uses for investigation in a detailed way? Because these investigations ought to be undercover, any disclosure would compromise any gains made. Therefore the institution lacks absolute independence to execute its mandate with efficacy. Another defect with the whole system is actually lack of coordination among the agencies that are given the mandate to combat alcohol and drug abuse. Some of these agencies include the Anti narcotics police unit, The Civil Society, Rehabilitation Centers, The Customs Department and NACADA itself. Nothing in the policy against drug abuse suggests that all these organs should be interdependent to each other. And what happens is that there is little coordination between thus compromising the ultimate results of the whole initiative.

The first proposal that I would make is that there has to be enacted an Act of Parliament that will in a way integrate the various regulatory institutions that help in preventing or controlling alcohol and drug abuse. NACADA as a central organization in this endeavor should always be in touch with the Anti Narcotics Police Unit so that they can easily recommend timely investigations with respect to some people. On receipt of such recommendation the police should act first, and conduct timely interventions and operations to net these suspected drug dealers. Also in a bid to keep the youthful generation much busier, the government should live by its previous promises. More jobs should be created so that the young people have something else to do other than engage in drug abuse.

This will ultimately increase the productivity of the whole country and eventually the Global Development Production will also improve. I would also propose that retrogressive legislations such as the Public Benefits Organization Act should either be repealed or amended because as this paper has explained in detail, the government cannot do everything in all parts of the country. Therefore Non Governmental Organizations are such a fundamental component towards the development agenda of this nation. In fact, a trust fund should be established so that it only caters for financing nongovernmental organizations dealing with drug abuse. Finally, it is so sad to discover that the central organization tasked with fighting alcohol and drug abuse is underfunded and its manpower or personnel are not equal to the task. The best way to come out of this situation is for the state to increase the amount of capitation that has been allocated to NACADA so that it can improve its human resource personnel who will help achieve the best results.

CHATTERJEE, S. K. (1989). Drug abuse and drug-related crimes: some unresolved legal problems. Dordrecht, M. Nijhoff Publishers. MWENESI, H. A. (1995). Rapid assessment of drug abuse in Kenya: a national report. Nairobi, s.n. BOSCO, K; MOSES, M (2011). Factors contributing to drug abuse among youth in Kenya. Lap Lambert Acad ROMAN, C. G., AHN-REDDING, H., & SIMON, R. J. (2007). Illicit drug policies, trafficking, and use the world over. Lanham, Md, Lexington Books, a division of Rowman & Littlefield Publishers. UNITED NATIONS. (2006). World drug report 2006. [Genève], United Nations Publications. CHERRY, A. L. (2002). Substance abuse: a global view. Westport, Conn. [u.a.], Greenwood Press. STARES, P. B. (1996). Global habit: the drug problem in a borderless world. Washington, D.C., Brookings Inst The Constitution of Kenya 2010.

The Narcotics and Psychotropic Substances Act, 1994
The Alcoholic Drinks Control Act, 2009

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