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1.0 GENERAL INTRODUCTION
1.1 Background to the Study
As the fear of the holocaust of a world war due to ideological differences subsides; as the cold war which has now and again brought the world to the brink of annihilation through nuclear weapons enters into a welcome détente, the world has found itself grappling with a new type of war caused by a cankerworm which is gradually nibbling at its generation of humanity…this is the effect of narcotic drug abuse and trafficking in countries around the world.
Drug use has been a part of human culture since antiquity. Right from the earliest of time, humans, world over, have depended on the use of drugs for medicinal, recreational and spiritual purposes. For instance, the Bible mentions ‘mandrake’, which is a drug of plant origin.The Bible states that Rachael allowed Leah to sleep with Jacob in exchange for a portion of ‘mandrake’ brought to Leah by Reuben4. This seemingly indecent affair shows just how coveted mandrake is to the ancient people. Again, under Islamic jurisprudence, the use of drugs has always found justification on the basic belief that for every ailment on earth, there is a cure. There has also been the allegation that the ancient Muslim Shi’ite Sect called the Nizari Ismailis, who are also called the Hashshashin or Assassins, may have utilized hashish (a drug derived from cannabis) in their rituals to invoke mystical experiences in their quest for esoteric knowledge.
Medieval Muslim scholars had carried out much experimentation with various drugproducing plants, including the Cannabis plant, which produces ‘hashish’, for the purpose of curing ailments, reducing pain and for other purposes.
It soon became apparent, however, that despite all their perks, some drug producing plants possess a chemical compound known as toxic resin. Toxic resin of drugs can be fatally harmful to the individuals who ingest it. With this discovery, it became necessary for authorities to regulate their use in order to protect the wellbeing of individuals and the society at large. Therefore, even in the olden days, community leaders controlled the use of such plants. In the Muslim world, such drugs are considered primarily as intoxicants due to their psychoactive effect, and therefore, are classified in the same category as alcohol. It is regarded as a sin in Islam for a Muslim to be intoxicated. Hence, drugs are proscribed under Islamic Law as alcohol because they are intoxicants. Allah Ta’ala states in the Holy Qur’an: O you who believe! Intoxicants and gambling, stone idols and divination are an abomination of Satan’s handwork.
Avoid (such abominations) that you may prosper.
The Holy Prophet Muhammad (pbuh) said in a narration reported by Ibn Umar that: Every intoxicant is Khmar (wine) and every intoxicant is Haraam (unlawful). Whosoever drinks wine in this world and dies whilst consumed in it (unrepentant) will not drink it in the next world.
Based on the effects of drugs, it can be concluded that illicit drugs are intoxicant and are therefore prohibited under Islamic Law. In modern times, law makers began enacting specific laws aimed at preventing and controlling the use of potentially harmful drugs. Initially, the regulation of drug use was a task unilaterally undertaken by individual states. However, the global nature of illicit drug activities such as drug production, consumption and trade, made international law regulation in the area inevitable. A series of events, spanning three different periods in world history, namely, the pre League of Nations era, the League of Nations era and the post League of Nations era, eventually culminated into an extensive regime of international law preventing and controlling harmful drugs which the law regards as illicit. International law regulation of harmful drugs stem from the need to protect individuals in the international community from the adverse effects of drug abuses and to prevent illegitimate profit derived from illicit drug trafficking.
Nigeria has ratified some of these international laws, in the form of the United Nations Conventions against illicit drugs. The process of the domestic implementation of these conventions is carried out with a view to solve the problems of drug addiction and drug trafficking in the country.
However, there is a rise in drug addiction in Nigeria. Some of the drugs commonly abused, such as cough syrup containing codeine, are not proscribed by law. This is because the law, such as the National Drug Law Enforcement Agency (NDLEA) Act, which is derived from the United Nations Conventions against illicit drugs, does not classify cough syrup as a narcotic drug or a psychotropic substance. The result is that the NDLEA cannot prosecute an individual for such an act. Consequently, the rate of cough syrup abuse increases, leading to the rise of drug abuse in the country. There are other drugs and substances that are commonly abused in the country apart from Indian
Hemp and Cocaine. But the same problem arises in the event that the case gets to the NDLEA for prosecution.
This matter is tied to the fact that, whatever is considered a narcotic drug or a psychotropic substance, is subject to international law definition, interpretation and control. The United Nations Conventions determine what drug is illicit or licit. Therefore, since the Conventions do not classify cough syrup or solution or second die etc, (common drugs and substances abused in Nigeria), the NDLEA finds its power limited as such. It takes a lot for the NDLEA to handle such matters, making it possible for drug abuse to increase in the country.
Therefore, this research will analyse the domestic implementation of the United Nations Conventions against illicit drugs and conclude with findings and recommendations.
1.2 Statement of the Research Problem
The problem that drug abuse and drug trafficking pose to Nigeria is that the consequences are capable of breaking down and ultimately destroying the existence of the society affected. This can happen by undermining the ability of individuals in the society to contribute meaningful efforts for the progress of their community and the nation as a whole. Where the society needs professionals such as doctors, lawyers, engineers, judges, artisans, teachers, etc, so that essential services are rendered for the benefit of everyone, the individuals involved in drug abuse and drug trafficking cannot become any of this because of the problems of addiction.
The problem here also involves the consequences of taking illicit drugs. They are many and they include the following. The first problem of drug abuse in Nigeria is poor academic performance that can cause a student to drop out of school due to drug addiction because the student cannot pay proper attention in class as a result of the effects of intoxication and emotional instability. Secondly, the problem of poor parental and marital responsibility that can cause a parent or spouse to abdicate important duties and lead to the irretrievable breakdown of the family because of coping with illicit drug addiction such as idleness, low sexual libido, low morale and low self-esteem. Thirdly, the problem of poor social responsibility that can cause an individual to resolve to criminal activities that are related to drug abuse such as violent crimes and property related crimes like stealing, cheating, etc, because drug addiction is an expensive habit and drug addicts may resolve to any means to support their addition. These three problems directly affect the individual in the society because they relate to the immediate consequences of drug addiction and its devastation of individual, family and communal life. Since the family is the basic unit of the nation, or as it is said, the state of the nation begins at home, the law will play the role of safeguarding this basic unit of the nation from destruction caused by drug abuse. There is however other problems that contributes to illicit drug activities in the country.
The first is that cultivation of Indian Hemp in Nigeria is on the rise.This is mainly because of the profit involved in the activity. It is a lucrative activity and a huge profit for the farmer involved. It is the main reason why farmers in Nigeria will want to venture into it. Weed, as Indian hemp is popularly called, requires little efforts on the part of the farmer. The seeds are available from any drug dealer because the hemp is always sold along with the seeds attached. An Indian hemp smoker will have to remove or sieve the seeds from the hemp leaves anytime time he buys it and any farmer can collect the seeds for the sake of cultivation. The farmer needs little or no fertilizer to add nutrient to the soil for healthy harvest because the Indian Hemp plant is rugged. He doesn’t have to keep grooming the plants like other vegetable shrubs such as bitter leaf or Ugu shrubs. The hemp leafs can be picked while the plant remains and continue to produce leafs. It is this leaf that the farmer sells and make much more than his peers make cultivating other legitimate crops. However, the profits derived from the farming of Indian Hemp keeps up the supply of narcotics in the country.
This pervasive effect of illicit drug activities on Nigerian and on the international community at large requires urgent government intervention. The intervention must be on both the domestic and international fronts. This in turn, exposes Nigeria to a plethora of legal difficulties mostly associated with successful domestication and adequate compliance by Nigeria to current objectives and obligations of International instruments, conventions, treaties and norms on prevention and control of narcotic drugs and psychotropic substances. The conventions as earlier mentioned, provides a framework upon which illicit drug problems can be solved.
This study seeks to explore these challenges in the process of domestication in Nigerian of the body of these international laws and conventions, including, in particular, the inadequate compliance with the following important provisions of international law;
1. The provisions of Article 3 of the 1988 Convention on Narcotic Drugs whose provisions requires member states to limit the production, cultivation and distribution of narcotic plants except for medical care and scientific pursuit.
The reality on ground in the country today is that narcotic plants, most especially Indian hemp are cultivated nationwide and are increasingly abused by members of the society including public officers, civil servant, security and military personnel, etc. This is because they are readily available. The NDLEA chairman in an interview in the Daily Trust Newspaper mentioned that the rate at which rural farmers were cultivating illicit narcotic plants (Indian hemp) was alarming. He attributed the proliferation of narcotic plant cultivation to poverty and the lucrative profits made there from18. The problem here is that farming of Indian hemp takes place in the rural areas where there are no access roads and minimal presence of the NDLEA and other law enforcement personnel. This makes it difficult for the NDLEA to police rural areas and prevent illicit cultivation of Indian Hemp.
2. The provision of Article 3(4) of the Single Convention on Narcotic Drugs requires that illicit drug users be regarded as clinically sick persons that require medical attention, treatment, care and rehabilitation.
There is no provision in the National Drug Law Enforcement Agency Act or any statute for that matter in Nigeria which classify illicit drug users as anything else but criminal offenders. This is in clear violation of the international convention to which Nigeria has signed, ratified and supposedly domesticated.
3. The provisions of the Single Convention of Psychotropic Substances which requires member states to prohibit the advertisement, sale, export and import of psychoactive drugs except for medical care and scientific pursuit. It also requires member states to take any means necessary to curtail the diversion of psychoactive drugs intended for medical care or scientific pursuit to illicit drug activities.
There are a number of medications sold at most pharmaceutical outlets around the country, which contain strong psychoactive ingredients. The most common are codeine based cough syrup. The existence of such drugs for legitimate sale has contributed to the rise in drug abuse by youth in Nigeria. They ought to be properly regulated and controlled but are not.
4. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, requires that member states shall establish a special department for coordinating all illicit drug activities. This special department is the NDLEA in Nigeria by virtue of Section 3 of the NDLEA Act.23
In response to this Convention and that of other pressing demands, the then
Federal Military Government established the National Drug Law Enforcement Agency in 1989. Section 3 (1) (b) of the NDLEA Act states that the NDLEA shall have the responsibility for; The coordination of all drug laws and enforcement functions conferred on any person or authority, including the Ministers in the Government of the Federation, by any such laws.
This section of the Act empowers the NDLEA to enforce all drug laws in Nigeria, even if a law confers the power on any authority other than the NDLEA. The aim of this section is to make the NDLEA primarily responsible for combating illicit drug activity in the country. The Nigeria Police Force, along with other law enforcement bodies in the country has limited powers with regards to enforcement of drug laws. Where a suspect is arrested by the police or other law enforcement bodies in Nigeria, they are required to hand over the suspect to the NDLEA for prosecution accordingly.
The aforementioned Convention also required member states to provide the department concerned, with adequate and necessary resources, for the successful implementation of the law. But if the Orosanye report on re-structuring the Federal Civil Service, submitted to the President of the Federal Republic of Nigeria, calling for the overhaul and dismantling of the NDLEA, is to be carried out, the effect would be a clear violation of the 1988 Convention cited earlier. The report suggests that all functions of the NDLEA are to be transferred to the Nigeria Police Force. Unfortunately, the police who were the main Government Agency responsible for the prevention and control of illicit drug activities prior to the establishment of the NDLEA were found to be grossly insufficient and incapable of successfully implementing such a task. The then Federal
Military Government therefore resolved to heed the advice offered by Mr. George Schultz (the USA Secretary of State) to enter a mutual legal assistance treaty (MLAT) with the United States of America for establishing a security agency capable of effectively combating illicit drug activities like the USA Drug Enforcement Agency. Thus, the Nigerian NDLEA was created.
5. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 which requires member states to enter bilateral treaties including Mutual Legal Assistance Treaty amongst states with a view to strengthen international efforts aimed at combating illicit drug activities.
As a result of this Convention, Nigeria has entered into numerous bilateral and multilateral treaties with various countries of the world. Most of these treaties lay dormant except those subsisting between Nigeria and the United States of America and Nigeria and the United Kingdom. It has been observed that the main cause of this dormancy has been the lack of adequate funding for the necessary operations that can give efficacy to the provisions of the treaty. A number of these treaties require the sharing of information on the activities of suspected drug traffickers. This would translate into intelligence gathering, which is very expensive. And as long as lack of adequate funding remains the norm for Nigeria’s bilateral partnership in efforts aimed at preventing illicit drug activities, the purpose of the treaty would be meaningless.
Another important challenge which this study seeks to investigate, are the problems facing those institutions in Nigeria, such as the NDLEA, the Judiciary and health officials from the Ministry of Health, the National Assembly, etc, who are responsible for the enforcement of laws on the prevention and control of narcotic drugs and psychotropic substances and in combating the drug problem in the country.
Finally, this study also seeks to explore the failure of the Nigerian government to ensure and safeguard adequate compensation for injury and loss to innocent individuals resulting from convicted illicit drug offenders. Presently, there is little compensation available to victims of illicit drug crimes under Nigerian criminal law. The failure to adequately compensate such victims contributes immensely to their suffering.
1.2.1 Research Questions
The following Questions will form the basis for which this research will intend to find solutions to:
1. Why effectively preventing and controlling production, transportation and circulation of narcotic drug and psychotropic substances have not succeeded in Nigeria?
2. What are the objectives and scope of the United Nations Conventions with regard to the framework for prevention and control of narcotic drugs and psychotropic substances?
3. What are the obligations contained in the Conventions, which the Government of
Nigeria is required to perform?
4. How has the Government of Nigeria domesticated and implemented the Conventions and what Government institutions are responsible for implementing them?
5. What are the issues and challenges hindering the domestic implementation of the Conventions in Nigeria? And what are the modalities for compensation and remedy for victims of crime in Nigeria and whether such forms of compensation and remedy are adequate for victims of narcotic crimes?
1.3 Aim and Objectives of the Research
In view of the problems mentioned above, it is the aim of this research to analyse the conventions and the NDLEA Act controlling narcotic drugs and psychotropic substances. And to proffer solutions to these problems with a view to achieve the following objectives:
1. To analyse the rising drug problem in Nigeria.
2. To analyse the legal and institutional framework on prevention and control of narcotic drugs and psychotropic substances under the United Nations Conventions and under Nigerian Law.
3. To analyse the problems and challenges in domestic implementation of the conventions relating to the prevention and control of narcotic drugs and psychotropic substances in Nigeria.
4. To analyse the problems and prospects of compensating victims of illicit drug crimes under Nigerian criminal law and International law.
5. To make findings and proffer recommendations on how to address the drug problems in Nigeria.
1.4 Scope of the Research
This research is limited to the study on prevention and control of narcotic drugs and psychotropic substances under Nigerian and International laws with particular reference to Nigeria’s treaty obligations under the Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol. The 1971 Convention on Psychotropic Substances and the United Nations Convention against illicit traffic in Narcotic Drugs and Psychotropic Substances of 1988. The research will also cover some provisions of the National Drug
Law Enforcement Agency Act, The Criminal Code, The Penal Code, The
Administration of Criminal Justice Act of 2015, The English Criminal Justice Act and the Constitution of the Federal Republic of Nigeria (1999 as amended).
The research will be limited to Nigeria as a country under study and the operation of the laws and treaty agreements will be based on the experience in Nigeria. This is so because narcotic drugs are matters within the exclusive legislative jurisdiction of the Federal Government of Nigeria. Thus, the application of Federal Laws covers the entire country. It is therefore prudent that the research is based on Nigeria. However, reference may be made to other countries, such as the United States of America because of the role of its Drug Enforcement Agency in the formation and establishment of Nigeria’s NDLEA.
1.5 Justification for the Research
The justification for this research is based on two important issues. The first is the importance of complying with rules and norms of international law, particularly those obligations relating to prevention and control of narcotic drugs and psychotropic substances, which affects Nigeria. The second is the importance of enacting laws in
Nigeria that proscribe emerging illicit drugs that are not found under the United Nations Conventions and also laws that grant remedies and compensation for victims of crime in Nigeria, with particular reference to victims of illicit drug trafficking and drug abuses.
This research would therefore make adequate analysis on factors necessitating the need to comply with provisions of international law that have been domesticated in Nigeria on prevention of narcotic drugs and psychotropic substances and also on the need to establish a commission charged with the responsibility of compensating victims of illicit drug crime and illicit drug related crime in Nigeria. Adequate recommendations would be made elaborating scenarios of how to achieve this and the dire consequences if these issues continue to be neglected.
1.6 Research Methodology
This research adopts the doctrinal method. This is because, the doctrinal method which is mainly a theory based research, will enable this researcher to review, refer and improve on the works of authors contained in text books, journals, the internet, etc, with a view to complete a well conducted research work on illicit drugs. The National Drug Law Enforcement Agency Annual Reports and the United Nations Office of Drug and Crime (UNODC) Reports will be studied with a view to utilize information on combating drug offences in Nigeria and the world at large.
In the process of conducting this research, the following means will be employed. Materials used for this research are classified into two major relevant categories. They are-
a) Primary sources. This consist of the following;
I. Statutes (Local)
II. Case Law (Local and Foreign)
III. International Instruments( Conventions, Treaty, etc)
b) Secondary sources. This consist of the following;
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