My brother belongs in rehab, not jail

Hi Wakili

My brother is serving a jail term. I am not a legal expert, but I feel he should be in a rehab to detoxify instead of being locked up behind bars. Is there a way I can present this argument in a court of law?

Dear reader,

Alcohol and drug abuse is a growing phenomenon in Kenya, as it creates and represents a human resource deficit that tends to slow down and sometimes halt socio-economic development. It is concerning and deeply disheartening because of the many youths and children caught up in its cyclic and addictive tentacles.

For instance, Gucha Law Courts reported that 98 cases of drug abuse were heard and determined between January and September 2022. Mostly affected were children and youth. This number is modest and likely represents the state of affairs in the country. Going by the findings provided by the Audit Report of the Criminal Justice System of 2017, which showed that 7.1% of criminal cases concerned children, there are possibilities that most narcotics-related arrests are never prosecuted. 

Every 26th of June is a reminder for the country to remain aware of the ever-growing addiction scourge, whose impact, entailing increased mental incapacities amongst users, may be difficult to push back. It is the time the International Day against Drug Abuse, and Illicit Trafficking is marked and celebrated.

This day calls for state and non-state agencies to reflect on the journey travelled and strides made in trying to reduce the degree and rate of drug abuse, considering the World Health Organisation’s warning that most who seem trapped by heroin and cocaine, amongst other drugs, are between 10-19 years.

Crisis

 The country could be staring at a crisis that may swallow its productive members into addiction while denting the hopes and futures of young generations. The 2018 data from the Kenya National Bureau of Statistics indicated that 5,387 persons were serving different jail terms for drug abuse-related offenses, with over 95% being male.

There is a general feeling amongst experts from different sectors that the Narcotic Drugs and Psychotropic Substances Act carries a highly punitive frame that reduces the chances of those abusing from getting relevant help. Section 3, clause (2) paragraph (a) commits a person to an imprisonment of ten years if when before the court, they provide irrebuttable evidence to satisfy the magistrate that cannabis in their possession was for personal consumption as the sole purpose.

Section 3 sub-section 2 (b) provides that if a person is found in possession of a narcotic drug or psychotropic substance that is not cannabis, and goes ahead to convince the court that the same was intended for their use, then the magistrate adjudicating the matter can slap them with a twenty-year jail term.

This could be accompanied by a penalty of not less than Sh1million, or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, or imprisonment for life or both such fine and imprisonment.

In respect of a narcotic drug or psychotropic substance other than cannabis, where the person satisfies the court that the narcotic drug or psychotropic substance was intended solely for his consumption, to imprisonment for twenty years and, in every other case, to a fine of not less than Sh1million or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, or to imprisonment for life or both such fine and imprisonment.

Section 5 of this Act provides for other offenses that have been used to harass and victimise people who the police suspect to be abusing drugs. Sub-section (1) emphasises that any person who smokes, inhales, sniffs, or otherwise uses any narcotic drug or psychotropic substance; or without lawful and reasonable excuse, is found in any house, room, or place to which persons resort for smoking, inhaling, sniffing or otherwise using any narcotic drug or psychotropic substance; and paragraph (d) has in his possession any pipe or other utensil for use in connection with the smoking, inhaling or sniffing or otherwise using of opium, cannabis, heroin or cocaine or any utensil used in connection with the preparation of opium or any other narcotic drug or psychotropic substance for smoking; shall be guilty of an offense and liable to a fine of Sh250,000 or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment.

Drug problem

The time is now to follow through with the Kenya National Commission on Human Rights advisory in May 2018 to the Office of the High Commissioner for Human Rights on implementing the joint commitment to effectively address and counter-world drug problem.

 To ensure that laws, policies, and practices resist the proliferation of drug abuse while essentially acting to defeat torture, cruel, inhuman treatment, and discrimination of persons who likely need medical help and not imprisonment. In this context, you could be right that the law should save the youth, especially by protecting them from exploitative drug barons and traffickers, but not rescind them to jail.

However, the country could be lucky, as some courts have begun to refer some drug abusers to Methadone Clinics for treatment, especially in Malindi, where the clinic is now part of the Malindi Court Users Committee.

The country is lucky because there is a Criminal Justice policy by the National Council of Justice on Administration of Justice, alongside the apprehension raised on mental health, which may, among other issues, address this concern.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]