No shift on harsh drug penalties

WHETHER or not the controversial Combating of the Abuse of Drugs Bill should be sent back to the National Assembly in its current form, or with amendments, was the topic of discussion in the National Council (NC) yesterday.

After a three-day public hearing in Windhoek last week, the Chairperson of the NC Standing Committee on Foreign Affairs, Defence and Security, Jhonny Hakaye, yesterday announced his committee’s recommendations. One of the most controversial clauses in the current bill – that a person found dealing, possessing or consuming a banned substance be sentenced to a minimum of 20 years’ imprisonment for a first offence, and a minimum of 30 years for subsequent offences, received the green light.Many members of the public at last week’s hearing opposed this.They said the clause was too harsh because it does not distinguish between drug traffickers and citizens who may simply be showing “anti-social behaviour”.Others, like the Magistrate’s Commission and the Legal Assistance Centre (LAC), warned that by prescribing minimum sentences, lawmakers were intruding on the courts’ powers of discretion.However, in its report, the committee argues that the section merely “limit(s) but (has) not completely eliminated the court’s discretion”.This is due to another clause in the bill which states that where “substantial and compelling circumstances exist”, a lighter sentence may be imposed by the courts.”If courts form the view that the prescribed minimum sentence would be grossly disproportionate to the crime, the criminal and the needs of society…the courts will depart from prescribed sentences so that an injustice would not be done,” the report states.Yet, the committee did recommend that anyone caught with 115 grams or less of a banned substance be given a lighter sentence.They recommended a maximum jail term of 20 years, a N$500 fine or both.WHAT ABOUT DAGGA? While his committee was responsible for mainly examining the necessity of the severe punishments prescribed in the bill, Hakaye acknowledged Rastafarians and other Namibians who used the hearing to advocate for the decriminalisation of dagga.”The committee found that Rastafarians are opposed to the bill because it criminalises cannabis and treats it as a drug, and that cannabis is listed as an undesirable dependence-producing substance,” Hakaye said.He said Rastafarians argued that cannabis is a natural plant, that it has been used for centuries to treat diseases, and that it forms part of their religion.”It is regarded as sacrament just like Christians regard wine,” he said.He also acknowledged receiving an Encyclopaedia of Herbal Medicines from Rastafarians during the hearing, on which they based their claims.”From this book the committee noted that cannabis is indeed a natural plant which relieves diseases such as asthma, menstrual pain, pain of childbirth, headaches, arthritis and more particularly [the symptoms of] cancer and AIDS patients undergoing chemotherapy,” Hakaye noted.He said, however, that the committee did not have the benefit of listening to expert witnesses on the use and effects of cannabis, which meant they had had to base their decision solely on the submissions of the general public.”The committee does not recommend the legalisation of cannabis, but nevertheless supports the view that addicted users, specifically minors, be rehabilitated in order to be reintegrated into society as well-behaved members,” Hakaye said to the dismay of a few Rastafarians in attendance.Another recommendation is that the bill should provide for the rehabilitation of convicted drug addicts.It should also list the common local names of drugs next to their scientific names, as requested by the Ombudsman last week.During discussion on the report, Swapo member Henock ya Kasita wanted to know why the Ministry of Safety and Security, as the sponsoring ministry, had not addressed the committee during the hearings.Hakaye replied that the Ministry had been formally invited, but had not responded.The Ministry’s absence, Hakaye said, deprived his committee of valuable information such as who was consulted in the drafting of the bill, what its financial implication is expected to be, and why it was considered necessary to prescribe such “severe and harsh penalties without the option of a fine for drug-related offences in comparison to rape: a very horrendous offence, constituting a humiliating, degrading, brutal, invasion of privacy and dignity of the victim”.One of the most controversial clauses in the current bill – that a person found dealing, possessing or consuming a banned substance be sentenced to a minimum of 20 years’ imprisonment for a first offence, and a minimum of 30 years for subsequent offences, received the green light.Many members of the public at last week’s hearing opposed this.They said the clause was too harsh because it does not distinguish between drug traffickers and citizens who may simply be showing “anti-social behaviour”.Others, like the Magistrate’s Commission and the Legal Assistance Centre (LAC), warned that by prescribing minimum sentences, lawmakers were intruding on the courts’ powers of discretion.However, in its report, the committee argues that the section merely “limit(s) but (has) not completely eliminated the court’s discretion”.This is due to another clause in the bill which states that where “substantial and compelling circumstances exist”, a lighter sentence may be imposed by the courts.”If courts form the view that the prescribed minimum sentence would be grossly disproportionate to the crime, the criminal and the needs of society…the courts will depart from prescribed sentences so that an injustice would not be done,” the report states.Yet, the committee did recommend that anyone caught with 115 grams or less of a banned substance be given a lighter sentence.They recommended a maximum jail term of 20 years, a N$500 fine or both.WHAT ABOUT DAGGA? While his committee was responsible for mainly examining the necessity of the severe punishments prescribed in the bill, Hakaye acknowledged Rastafarians and other Namibians who used the hearing to advocate for the decriminalisation of dagga.”The committee found that Rastafarians are opposed to the bill because it criminalises cannabis and treats it as a drug, and that cannabis is listed as an undesirable dependence-producing substance,” Hakaye said.He said Rastafarians argued that cannabis is a natural plant, that it has been used for centuries to treat diseases, and that it forms part of their religion.”It is regarded as sacrament just like Christians regard wine,” he said.He also acknowledged receiving an Encyclopaedia of Herbal Medicines from Rastafarians during the hearing, on which they based their claims.”From this book the committee noted that cannabis is indeed a natural plant which relieves diseases such as asthma, menstrual pain, pain of childbirth, headaches, arthritis and more particularly [the symptoms of] cancer and AIDS patients undergoing chemotherapy,” Hakaye noted.He said, however, that the committee did not have the benefit of listening to expert witnesses on the use and effects of cannabis, which meant they had had to base their decision solely on the submissions of the general public.”The committee does not recommend the legalisation of cannabis, but nevertheless supports the view that addicted users, specifically minors, be rehabilitated in order to be reintegrated into society as well-behaved members,” Hakaye said to the dismay of a few Rastafarians in attendance.Another recommendation is that the bill should provide for the rehabilitation of convicted drug addicts.It should also list the common local names of drugs next to their scientific names, as requested by the Ombudsman last week.During discussion on the report, Swapo member Henock ya Kasita wanted to know why the Ministry of Safety and Security, as the sponsoring ministry, had not addressed the committee during the hearings.Hakaye replied that the Ministry had been formally invited, but had not responded.The Ministry’s absence, Hakaye said, deprived his committee of valuable in
formation such as who was consulted in the drafting of the bill, what its financial implication is expected to be, and why it was considered necessary to prescribe such “severe and harsh penalties without the option of a fine for drug-related offences in comparison to rape: a very horrendous offence, constituting a humiliating, degrading, brutal, invasion of privacy and dignity of the victim”.