Chukwuka Onyeaku: The Legal Landscape of Cannabis/Indian Hemp in Nigeria: An Inquiry and Comparative Lessons from other Jurisdictions

To do this, the paper is divided into five sections. Section one is the introduction. Section 2 examines legal frameworks and policies on cannabis in Nigeria. Section 3 discusses legalizing the use of cannabis/ Indian hemp in Nigeria. Section four discusses legal framework of cannabis in other jurisdictions. Section 5 concludes the paper with recommendations.

Authored By: Chukwuka Onyeaku[1]

Contact at : https://nils.gov.ng/nils/legislative-support/staff/chukwuka.onyeaku

Abstract

Commonly known in Nigeria as marijuana, Indian hemp, weed or Igbo, cannabis is a generic species of plants with compounds consisting of sativa. Its psychoactive properties, together with its mental and physical effects, endears it for medicinal and recreational use. It is typically used for smoking, cooking and its direct side effects, short and long term, include heightened paranoia, anxiety, impairment of physical coordination, increase in appetite, decreased mental ability and alertness and disorders. In view of these revelations, this paper examines the legal landscape of cannabis/Indian hemp in Nigeria. This is with a view to ascertain the necessity or otherwise of regulating cannabis cultivation, possession and use in Nigeria. The paper argues that because of its medicinal use as may be recommended by doctors, importation, planting or sale of any medical prescription of cannabis is/should be permissible provided no offence against drug laws. It concludes that legal frameworks, regulations and policies for the prohibition of cultivation, possession, importation, use or sale of cannabis in Nigeria must be weighed against leading international health organizations that have validated the medical efficacy of cannabis derivatives. This validation of usefulness of cannabis derivatives strengthens the global adoption of medical cannabis thereby lowering the utility of upholding blanket prohibitions. The paper finally concludes that all laws, regulations and policies of Nigeria that placed absolute prohibition on use of cannabis/Indian hemp ought to be reviewed in view of global acceptance of the medicinal value and usefulness of the substances. The review of the laws and policies, however, be in conformity with international conventions, standards, and practices.

Key Word: Cannabis, Indian hemp, Nigeria, Jurisdictions, Lesson

 

Introduction

It is illegal to possess or use cannabis in Nigeria, in accordance with the Dangerous Drugs Act. This law specifically lists Indian hemp ‘as a dangerous drug stating that the term refers to any plant or part of a plant of the genus cannabis’.

The Indian hemp Act further clarifies the situation stating that possession of the substance is an offence, which can be punished with imprisonment for a term of not less than four years. However, if the offender is seventeen or under, the sentence is adjusted to 21 strokes of the cane, plus two years in a borstal or similar institution, or a fine of ₦200.

Individuals can also be prosecuted for possessing equipment associated with the usage of cannabis (for example, a smoking pipe). If caught, they could be given a prison sentence of not less than five years.

The main body of authority for drug policy and enforcement is the National Drug Law Enforcement Agency (NDLEA). This Agency was established by NDLEA Act…… The agency liaises with the US government and regional authorities to tackle drug problems in West Africa.

It is in the context of the above backing that this paper examines the legal landscape of cannabis/Indian hemp in Nigeria, The paper discusses the various legal and policy frameworks in Nigeria that deal with cultivation, importation, use, sale and other forms dealing in cannabis. The paper examines the legal frameworks and policies in other jurisdictions with a view to adopting international best practice or experience to improve the country’s legal system on cannabis. It uses doctrinal and social legal research methods in this discussion. That is, the study of literatures such as textbooks, journal articles, Acts, Policies, conference papers and internet sources, among others.

To do this, the paper is divided into five sections. Section one is the introduction. Section 2 examines legal frameworks and policies on cannabis in Nigeria. Section 3 discusses legalizing the use of cannabis/ Indian hemp in Nigeria. Section four discusses legal framework of cannabis in other jurisdictions. Section 5 concludes the paper with recommendations.

 

Legal Frameworks and Policies on Cannabis/Indian Hemp in Nigeria

Deemed an illicit drug by the law in Nigeria, it had always been an offence to illegally deal with cannabis or Indian hemp. To this end, dangerous drug laws were established to punish violators who may deal in cannabis/Indian hemp in any form in Nigeria without authorization by relevant governmental authorities.[2] The Agency mostly saddled with enforcement of drug laws in Nigeria is the National Drug Law Enforcement Agency (NDLEA).The Agency is empowered to curtail the consumption of cannabis or Indian hemp in Nigeria. The general powers of the Agency is contained in the NDLEA Act.[3] Under the Act, the Agency is saddled with responsibility to enforce laws against the cultivation, processing, sale, trafficking and use of hard drugs and to investigate and prosecute persons suspected to have dealings in drugs and other related matters. The NDLEA is also empowered under its Act to trace and arrest person, who without lawful authority, manufactures, processes, plant, grows or exports cannabis and upon conviction the accused person is sentenced to life imprisonment or to option of twenty-one years imprisonment.[4] Thus, in the case of Okewu v FRN[5] and Nwadiem v FRN[6], the accused persons were convicted and sentenced to various terms of imprisonment.

In the case of Nura Ochala v Federal Republic of Nigeria[7] the appellant was arrested on 23rd day of September, 2011 at Banni Village in Kaima Local Government Area of Kwara State with 8.8 kilogrammes of cannabis Sativia (Indian hemp). He was charged on a one count charge of unlawful possession of Indian hemp contrary and punishable under section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria, 2004. The prosecution tendered Exhibits in the presence of the appellant and his counsel including statement of the appellant as the accused person before the lower court, packing of substance form, Certificate of test analysis, request for scientific aid form, drug analysis report, evidence of pouch and 8.8 kiliogrammes of cannabis sativia (Indian hemp) recovered from the accused person, and also prayed the court to convict the Appellant based on the documents tendered and admitted, all to which the Appellant’s counsel did not object. The Federal High Court, hence, sentenced the Appellant to 18 months imprisonment. Dissatisfied, the Appellant appealed to the Court of Appeal where the decision of the trial Court was affirmed. Again, the Appellant appealed to the Supreme Court, which dismissed the appeal.

In Nigeria, there is the Indian Hemp Act[8] which is an Act that makes the planting cultivation, importation, etc. of Indian hemp an offence. The Act defines Indian hemp to mean any plant or part of a plant of the genus cannabis or the separated resin, whether crude or purified, obtained from any plant of the genus cannabis or any preparation containing any such resin.[9] The Act specifically provides that any person who knowingly plants or cultivates any plant of the genus cannabis shall be guilty of an offence and liable on conviction to be sentenced either to death or imprisonment for the term of not less than twenty-one years.[10] Unlawful importation or sale of Indian hemp; exportation of Indian hemp, and smoking or unlawful possession of Indian hemp are also offences under the Act.[11] Any person who commits the offence of smoking or possessing Indian hemp unlawfully shall be liable on conviction to imprisonment for a term not less than four years without the option of a fine.[12] However, as Aba stated, it must be observed that it is not an offence for the possession of any medical preparation of Indian hemp in the circumstances such that no offence is committed against the Dangerous Drugs Act.[13] Also, possession of utensils for use in smoking Indian hemp, and use of premises for sale and smoking of Indian hemp are classified as[14] an offence under the Act. The Act provides that any person who, being the occupier of any premises, permits those premises to be used for selling Indian hemp, smoking Indian hemp, or preparing Indian hemp for smoking shall be guilty of an offence and shall be liable on conviction to imprisonment for a term of not less than ten years without option of a fine. However it shall not apply to the use of premises for the sale of any medical preparation of Indian hemp in circumstances such that no offence against the Dangerous Drugs Act is committed thereby.[15]

The National Agency for Food and Drug Administration and Control Act, 1993, as amended and compiled as Cap N1 Laws of the Federation of Nigeria (LFN) 2004 (the “NFDAC Act”) was empowered to create a National Agency for Food and Drug Administration and control responsible, among other things, to prohibit the use of dangerous drugs and narcotics and ensure that the of narcotic drugs and psychotropic substances are limited to medical purposes; and grant authorization for import and export of narcotic drugs. This subject to no offence against the Dangerous Drug Act (DDA) is committed in the process of medical preparation of cannabis. As pointed out by Anaje et al none of the provisions of the DDA, NDLEA Act and NAFDAC Act on cultivation, sale, passion, importation and exportation of cannabis for medical purposes contemplate the use of cannabis for recreational purposes.[16]

In addition to its own laws on narcotic drugs, Nigeria is signatory to the 1961 Single Convention on Narcotic Drugs, and the 1988 Convention on Psychotropic Substances. Under the Convention, it is envisaged that as a result of research, a drug may be deleted from scheduled IV of the Single Convention if researches reveal its therapeutic advantages. It sates:

A Party shall if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the party.[17] A careful reading of the 1961 Single Convention on Narcotic Drugs reveal that Narcotics may be used by signatory states for research and medical purposes.

Legalizing the use of Cannabis/Indian Hemp in Nigeria

Notwithstanding the probation of planting, cultivation, sale, import and export or use of cannabis in Nigeria, medical experts argue cannabis has health benefits.[18] According to World Health Organization (WHO), one of the first medical issue that cannabis was shown to effectively treat is Glaucoma. According to WHO report, ingesting cannabis helps lower the pressure in the eyeball, giving patients at least temporary relief.[19] It can improve lung health and some conditions like lung cancer and Emphysema have been shown to regress when cannabis is thrown to the mix. Cannabis according to WHO report can also offer serious relief for arthritis, especially when using quality cannabis creams and balms. The report further revealed that cannabis is helpful for those with post-traumatic stress disorders (PTSD). It could help regulate metabolism; help body process and deal with food and obesity.

It also helps people with AIDS/HIV in the sense that cannabis helps those living with to cope by helping them maintain their diets and handle associated pains and aches, the WHO report revealed. It was discovered to be effective for treating nausea and that chemical compounds in cannabis react with brain receptors to regulate feelings of nausea. Cannabis proved to treat headache naturally and won’t chew through stomach lining or take its toll on ones body. It has also been found to be at least somewhat effective in the treatment of handful of sexually transmitted diseases. It could also help with speech problems. If anyone has an issue with stuttering, cannabis can help in the same way that it helps calm spasm and twitches. It can improve skin conditions and treat skin conditions like eczema vide cannabis tropical the report concluded.[20]

Apart from the argument for the legalization of cannabis for medical and medicinal purposes, there is the argument that its possession and use for recreational purposes should be decriminalized. As would be seen, some countries have passed legislation that decriminalizes possession up to certain amounts and allows recreational use and cultivation up to certain amounts too. If the use of cannabis is of much medical benefit as WHO reports revealed, then decriminalizing cultivation, use, sale, import and export of cannabis in Nigeria is necessary; at least as obtains in other countries.

The Legal position of dealing in Cannabis/Indian Hemp in other jurisdiction

Research results revealed that many countries including Nigeria enacted laws against the cultivation, possession or sale of cannabis. Studies further revealed that dealing or using cannabis in countries such as Singapore, China, Malaysia, United Arab Emirates, and Saudi Arabia is prohibited and attract severe punishment. However, some countries have adopted a different strategy, of decriminalizing cannabis usage as a way of combating it. These societies have also often reduced the penalties for possession of small quantities of cannabis, so that it is punished by confiscation or a fine rather than by imprisonment. The idea has been to focus more on the resources of those who traffic the drug.

Uruguay made history by becoming the first country to legalize cultivation, trade and usage of marijuana in December 2013. In countries as varied as The Netherlands, Germany, Mexico, Peru, and Canada, the emphasis has shifted towards the decriminalization of cannabis. Jamaica has also decriminalized the use of marijuana. In 2018, Thailand’s military government unanimously approved medical marijuana use, which would make it the first country to legalize cannabis use in any form in Southeast Asia. On 17th October 2018, the federal Cannabis Act came into effect in Canada thus formerly legalizing cultivation, possession and consumption of cannabis and its’ derivatives. In 2017, Lesotho became the first African nation to grant a license for the cultivation, processing and sale of cannabis for medical and scientific purposes in the country.

However, in the United States of America, the use and possession of cannabis is illegal under federal law for any purpose, by way of Controlled Substances Act (CSA) of 1970. Under the CSA, cannabis is classified as Schedule 1 substance, determined to have a high potential for abuse and not accepted medical use. Thus, the Act prohibits even medical use of the drug.[21] At the State level, however, policies regarding the medical and recreational use of cannabis vary greatly and in many States conflict significantly with federal law. The medical use of cannabis is legalized (with doctor’s recommendation) in 35 States, four out of five permanently inhabited United States territories, and the District of Columbia.[22] Although the use of cannabis remains federally illegal, some of its derivative compounds have been approved by the Food and Drug Administration for prescription use.

In European Union law, Council Framework Decision 2004/757/JHA of October 2004 lay down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. The list of narcotic drugs in Table 1 of the Single Convention on Narcotic Drugs 1961, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961 concluded in New York on 30 March 1961[23] includes cannabis, cannabis resin, extracts and tinctures of cannabis. According to Article 2(1)(a) of Framework Decision 2004/757, each Member State is to take necessary measures to ensure that following intentional conduct when committed without right is punishable: the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs. Article 2(2) of that framework decision states that the conduct described in paragraph 1 thereof is not to be included in the scope of that framework decision when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law.

The efficacy of European Union law on cannabis or hard drugs was tested in the case of B S, C A v National Council of the Order of Pharmacists and Minister of the Public.[24] The facts of the case is that B S and C A are the former directors of Catlab SAS, a company formed in 2014 to market Kanavape, alpha-CAT kits for testing the quality of cannabidiol and hemp oil. Following an information campaign to promote the launch of the Kanavape product run by Catlab in 2014, an inquiry was opened and the matter was referred to the National Agency for Safety of Health Products.

By a judgment of 8 January 2018, the Tribunal (Criminal Court Marseille, France) found B S and C A guilty on several charges of infringement, including infringement of the legislation on poisonous substances. The applicants in the main proceedings were sentenced to suspended terms of imprisonment of 18 months and 15 months, respectively, together with a fine of EUR 10,000 each. With regard to the civil proceedings, the applicants were ordered jointly and severally to pay EUR 5,000 by way of compensation for the damage suffered by the National Council of the Order of Pharmacists and EUTR 6000 under the Code of Criminal Procedure.

The applicants in the main proceedings lodged appeals against that judgment before the Court of Appeal, Aix-en-Provence, France, on 11 and 12 January 2018, respectively. Before the referring court, they submit, in particular, that the prohibition on the marketing of CBD from the Cannabis sativa plant in its entirety is contrary to EU law.

Conclusion and Recommendation

Despite the facts that the mischief which the laws against narcotic drugs seek to prevent is the harm they do to human health, recent medical studies have shown that cannabis can also be beneficial to health. Therefore, taking experience from other countries, there is really a need to legalize the use of cannabis and Indian hemp in Nigeria. Decriminalization of use of cannabis can be justified by the fact and experience that war on hard drugs is often costlier that the drugs themselves If the cost of fighting against the use of hard drugs is channeled to cultivation of cannabis for economic use, this will boost the economy of the country and create job for theming unemployed youth in the country.

One of the greatest challenges in enforcing laws and illegal use of cannabis is the fact that dealers or users of cannabis deploy all kinds of tactics to beat law enforcement agencies. Sometimes the officials of the law enforcements compromise their position by corruptly enriching themselves from the drug barons. For this reason, most proponents of the legalization of use of cannabis for both medical and recreational purposes have stated that its criminalization has not stopped its increasingly widespread use, but instead, has helped deny people of its medicinal use.

In the context of the above analysis, it is recommended that the National Assembly be approached to amend the provisions of the NDLEA Act and other laws on narcotic drugs. Therefore due to medicinal and economic benefits of cannabis, production, sale, import and export of cannabis in Nigeria should be legalized as obtained in other jurisdictions.

 

SOURCES & REFERENCES

[1] LLB, LLM, M.Sc., M.A., PhD, PGDE, ACIS, ACTI, BL.

Research Fellow, National Institute for Legislative and Democratic Studies,

National Assembly, No. 1 River Niger Street of Danube Street, Maitama Abuja.

08037120985, onyeaku@yahoo.com

[2] Anaje, O, and Oke, A., Nigeria’s Cannabis Question: Balancing the Tripod of Law, Commerce and Politics, https://a02law.com/nigeria-cannabis-question-balancing-the-tripod-law (Accessed November 20, 2020), 1-3.

[3] National Drug Law Enforcement (NDLEA) Act Cap N30 Laws of the Federation of Nigeria (LFN) 2004 Section 3.

[4] Ibid, Section 11.

[5] (2012) LPELR

[6] (2018) LPELR

[7] (2016) Appeal No. SC 728/2013

[8] Indian Hemp Act Cap 16 LFN 2004

[9] Indian hemp Act Cap 16 LFN 2004 Section 1.

[10] Indian hemp Act Cap 16 LFN 2004 Section 2(1).

[11] Indian hemp Act Cap 16 LFN 2004 Sections 2, 3, 4.

[12] Indian hemp Act Cap 16 LFN 2004 Section 5.

[13] J. O. Abah, A Glance at the Indian Hemp Act Cap 16 LFN 2004, (https://jamesodehabah.wordpress.com/2015/0923-glance-at-theindian hemp Act cap16lfn2004 (Accessed September 23, 2015), 2.

[14] Indian hemp Act Cap 16 LFN 2004 Sections 5, 6.

[15] Indian hemp Act Cap 16 LFN 2004 Section 7.

[16] (n. 1), 4.

[17] Single Convention on Narcotic Drugs 1961 Article 3 paragraph 5.

[18] WHO, Heath Benefits of Cannabis, www.un.org (Accessed. September 20, 2019).

[19] Ibid.

[20] Ibid.

[21] State-by-State Medical Marijuana Laws, Marijuana Policy Project, December 2016.

[22] State Medical Marijuana Laws, National Conference of State Legislatures, November 4, 2020, (Accessed July 3, 2018.

[23] United Nations Treaty Series, (vol. 520, No 7515) (‘the Single Convention’)

[24] Case No. C-663/2018 (Judgment of the Court Fourth Chamber), 19 November, 2020.

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