Policy, Legislation and Regulation

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Objectives

The purpose of this Law is to provide a legal framework for implementing the requirements of the international drug conventions that is in conformity with human rights and the overriding objective of which is the protection of public health by

• Enabling and facilitating adequate availability and accessibility to affordable controlled drugs for medical and scientific purposes
• Minimising the diversion of controlled drugs for unauthorized purposes
• Preventing and reducing the harms associated with the diversion of controlled drugs to unauthorized purposes

Coordination Mechanism

There is to be an Inter-Ministerial Coordination Mechanism to monitor drug control from a health and human rights perspective.

The Coordination Mechanism must prescribe mechanisms to ensure-

• the creation of an over-arching national drug strategy for controlling drugs from a health and human rights perspective;
• the inclusion of civil society organisations active in the field of drug policy in deliberations concerning national drug policy;
• a co-ordinated approach between public health and law enforcement agencies and other relevant government bodies and non - governmental bodies;
• facilitation of the collection and availability of reliable and comparable national data on drug use and drug offending for the development of evidence - based drug policies and programmes;

Control of Activities

For the purposes of this Law the cultivation, production, manufacture, wholesale and retail trade, distribution, transport, possession, offering, brokerage, purchase, use, import and export of controlled drugs is “unauthorised” wherever it is for purposes other than medical or scientific ones.

Drug Trafficking

• A person who, in the absence of any authorisation for medical or scientific purposes, intentionally carries out any of the following activities commits an offence.
• the manufacture of a controlled drug
• the sale, or offer for sale, of a controlled drug;
• brokerage, or trade in, a controlled drug;
• the delivery, dispatch, export, import or transportation of a controlled drug for the purpose of any activity mentioned above

The burden of proof is on the prosecution to prove all elements of the offence

Unauthorised Cultivation or Production of a Controlled Drug for the Purpose of Drug Trafficking

• A person who cultivates or produces the opium poppy, coca bush or cannabis plant in the absence of authorisation for medical or scientific[OPTION or, in the case of hemp - producing varieties of cannabis, industrial] purposes, with the intention of conducting an activity which constitutes an offence commits an offence.
• The drug is possessed with the requisite intention is a matter to be proved by the prosecution and is to be determined in accordance with all the evidence available, including the extent to which the amount of controlled drug exceeds the thresholds provided in Schedule I of this Law
• Notwithstanding any other provision of law, the unauthorised cultivation or production of controlled drugs for personal use does not amount to an offence in law.

Breaches of Terms of Authorisation

• Criminal Breach of Authorisation

• A person who, for the purpose of financial gain or advantage, intentionally does any act in breach of the conditions of, or outside the scope of, their authorisation commits an offence.
• A person may be arrested for an offence under this Article only if the police have secured a court order for the person’s arrest.
• A person may be prosecuted for an offence under this Article only with the consent of the Attorney General, who shall consult the Minister for Health in their decision - making.
• The burden of proof is on the prosecution to prove all elements of the offence.

• Administrative Breach

A person who inadvertently or recklessly does any act in breach of the conditions of, or outside the scope of, their authorisation, is to be dealt with in accordance with regulations made under this Law.
• In situations of high public health concern as determined by ECOWAS Member States, the WA-MRH Secretariat at WAHO in consultation with ECOWAS Member States may directly invite relevant parties to submit specified products for assessment under this procedure without publication of an invitation for expressions of interest.

Offences Involving Precursors, Equipment and Materials

• A person who manufactures, transports or distributes equipment, materials or precursors knowing that they are to be used for the unauthorised cultivation, production or manufacture of controlled drugs commits an offence.

• The burden of proof is on the prosecution to prove all elements of the offence.

• Notwithstanding any other provision of law, neither the possession nor the supply of equipment used in the consumption of drugs may be an offence in law, nor is any such equipment to be subject to seizure or destruction, merely by reason of it being possessed or supplied for such use, or by reason of it containing trace amounts of a controlled drug.

Police Powers of Search, Questioning and Detention; Seizure

Powers of Search and Seizure of Incriminating Articles

• Powers of search exercised in relation to activities governed by this Law must only be exercised in accordance with national law and where the officer in exercise of such powers has reasonable grounds to suspect any of the following circumstances -
• that any person is about to commit an offence;
• that any person is in the act of committing an offence;
• that any person has committed an offence.
• Searches must be carried out in accordance with the law, and in a manner consistent with the inherent dignity of the person and the right to privacy.
• Any search of a person must be conducted by an officer of the same sex as the suspect
• If a strip search is deemed justified and necessary in accordance with the law then it must be conducted in private.
• If an internal cavity search is deemed necessary and in accordance with the law then it may only be conducted by a medical professional and with the informed consent of the person.
• Where the premises searched is a medical centre or premises authorised for the purpose of drug treatment or harm reduction services, a court order must be obtained before the premises may be searched.
• Equipment used or suspected of being used in the consumption of drugs is not subject to seizure or destruction merely by reason of it being possessed or supplied for such use or by reason of it containing trace amounts of a controlled drug

Duty to Record and Inform

• Before conducting a search of a person, the officer must inform the person of the reason for the search and provide confirmation in writing.
• The officer must make a record of any search conducted on the spot
• The record of search must state –
• the name of the person searched;
• the object of the search;
• the grounds for making it;
• the date and time when it was made
• the identity of the officer conducting the search
• a description – and (if possible) photograph - of anything found in the course of the search;

Meaning of Reasonable Suspicion for Searches

• For the purposes of this Law a “reasonable ground of suspicion” means the formation of a genuine and reasonable suspicion in the officer’s own mind that they will find an object for which the search power being exercised allows them to search.

Powers of arrest and detention

• An officer may arrest a person for an offence under this Law if the officer has reasonable grounds for arrest.
• Any officer conducting an arrest must act in accordance with the law and must clearly identify themselves and the unit to which they belong by showing an official identity card which visibly displays their name, rank and identity number.Any vehicles used must have clearly visible number plates and any other required or legally prescribed identity markers or numbers.
• The level of any force used in conducting an arrest must be proportionate and no more than necessary
• An arrest is not lawful unless the person arrested is informed that they are under arrest and of the ground for the arrest as soon as practicable after the arrest.

Evidential and Procedural Matters

Pre-Trial Detention

• Pre-trial detention is a measure of last resort and may only be used where necessary and where no other alternatives are available.
• Regular review of pre-trial detention orders must be provided for in national law. Judicial authorities and detaining authorities must ensure that all pre - trial detention orders are subject to regular review
• If the judicial authority finds that the completion of the proceedings is being delayed unreasonably by the State or its agents, the judicial authority may make any order it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order to release the accused if the length of their detention is inconsistent with the right of detained persons to trial within a reasonable time.
• Judicial authorities must investigate any delay in the completion of proceedings which could substantially prejudice the prosecution, the pre - trial detainee or their lawyer or other legal service provider or a witness.
• In considering the question of whether any delay is reasonable, a judicial authority must consider the following -
• the duration of the delay;
• the reasons advanced for the delay;
• whether any person or authority is responsible for the delay;
• the effect of the delay on the personal circumstances of the detained person and witnesses;
• the actual or potential prejudice caused to the prosecution or the defence by the delay;
• the effect of the delay on the administration of justice;
• the adverse effect on the interests of the public in the event of the prosecution being stopped or discontinued;
• any other factor which in the opinion of the judicial authority ought to be taken into account.

Prosecution of Offences

• Where a person is prosecuted for an offence, the weight and identity of the relevant substance must be particularized in the charge wherever possible.

Proof That the Substance Is a Controlled Drug

• Where a person is prosecuted for an offence under this Law it is for the prosecution to prove that the substance to which the charge relates is a controlled drug by providing a report from the relevant authority in which it is stated that they are satisfied that the substance is a controlled drug for the purpose of this Law, and in which the method used to identify the drug is explained and the weight of that part of the substance which is a controlled drug stated.

Analyst Report

• The relevant authority must state in their report the number of samples entrusted to them and the nature and weight of the substance contained in each of them, the number of samples used and the amount of any substance they have identified as a controlled drug

Powers and Duties of the Court in Regard to Sentencing

Powers and Duties of the Court

• When sentencing an offender who has been convicted for an offence under the Law
• no mandatory minimum sentences may be imposed;
• the court must act in accordance with the sentencing guidelines produced pursuant to the Law
• the court must provide reasons for its sentencing decision and the offence for which the offender has been sentenced.
• a record must be made of the court’s sentence and its reasons.

• The court record must specify both the offence for which the person has been convicted and wherever reasonably practicable both the name of controlled drug in respect of which the offence was committed.