Police to step up crackdown on marijuana despite court ruling

The police have announced that they will be stepping up their enforcement against narcotic-related drugs after the Narcotic Drugs and Psychotropic Substances Control Act 2016 was nullified by the Constitutional court last week.

This law had prohibited the use of several drugs, including cannabis, bush cocoa, and mairungi, as they contain cathinone and cathine, substances that are known to have side effects such as increased blood pressure, euphoria and elation with feelings of alertness and arousal.

The court ruled that the law was passed by parliament without a quorum. Fred Enanga, the police spokesperson, stated that although the Narcotic Drugs and Psychotropic Substances Control Act 2016 was nullified, the old law of the National Drug Policy and Authority Act 1993, which tackles narcotics-related offenses, is still in force. He emphasized that narcotic drugs, under the NDA Act, are illegal and harmful, affecting both physical and mental health, relationships and wider society.

“Although Narcotic Drugs and Psychotropic Substances Control Act 2016 was nullified, for lack of quorum, we want to inform the public that fortunately the old law of National Drug Policy and Authority Act 1993 was not affected and it is still in force; therefore, police and the directorate of public prosecutions (DPP) and Judiciary will use it to enforce drug-related offenses,” he said

Enanga revealed that there has been an increase in the consumption of narcotic-related drugs. In 2022, a total of 2,797 cases of narcotic drugs were reported to the police countrywide, compared to 1,668 cases reported in 2021. Furthermore, a total of 4,818 suspects, including 137 juveniles, were arrested, and charged in court in 2022, with cannabis being the most consistently used drug, followed by cocaine.

Enanga said the National Drug Policy and Authority Act provides for restrictions on narcotics. Section 67 prohibits the possession of narcotics without lawful excuse; Section 48 prohibits smoking of opium; and Section 48 prohibits growing those plants that yield narcotics in the country without the consent of the minister.

As police, they maintain a zero-tolerance approach to the consumption of narcotic substances prohibited by the National Drug Policy and Authority Act, and all territorial commanders have been instructed to maintain or step-up enforcement action against offenders and enhance deterrent efforts to stop the consumption of narcotic drugs in the country.

“As police, we maintain a zero-tolerance approach to the consumption of narcotic substances prohibited by the National Drug Policy and Authority Act and all the territorial commanders have been instructed to maintain or step-up enforcement action against offenders and enhance deterrent efforts to stop the consumption of narcotic drugs in the country,” he said.

Luyimbazi Nalukoola, a human rights lawyer, was interviewed for this story, and he said that it is a constitutional commandment that no person can be charged in respect of a non-existent law. If one is to be charged, there must be an act that is prohibited under the law, and the punishment must be prescribed.

“The law generally says the Penal Code Act provides for prohibited drugs like marijuana. It is only prohibited for consumption, but there is no law prohibiting the growing of marijuana and mairungi. It is normally destroyed as a preventive measure with a presumption that those who grow it will take it, but if somebody has justification for growing the same, you will find no reason why one should be ar- rested or charged,” he said.

Nalukoola pointed out that now that the law has been nullified, nobody can be arrested and charged for growing mairungi. If the government thinks that growing mairungi poses health risks and deserves to be prohibited, they should prepare another bill on the same, just as they did on the Anti-homosexuality bill.

Nalukoola added that there is a law, but it has inadequacies regarding the description of what is prohibited, punishments, and others. It is because of these inadequacies that parliament had to enact the Narcotic Drugs and Psychotropic Substances Control Act.

Jackson Kafuzi, the deputy Attorney General, told The Observer that the state would appeal against the Constitutional court’s ruling. Interviewed for this story, Kiryowa Kiwanuka, the Attorney General, said his chambers will study the ruling and appeal or write an advisory.

Without identifying specific laws, Kiwanuka said narcotic-related drugs are still illegal in Uganda and individuals will be charged under other laws in the country.

In 2017, Wakiso Miraa Growers and Dealers Association Limited filed a petition challenging the Narcotic Drugs and Psychotropic Substances Control Act. The act prohibited and criminalized the cultivation, possession, consumption, sale, distribution, transportation, and exportation of Catha edulis (khat) commonly known as mairungi.

Through their lawyers led by Isaac Ssemakadde, the petitioners argued that prohibition of khat was not backed up by any scientific evidence yet it had a disruptive effect on the livelihood, property, cultural and social economic rights of the petitioners who are mairungi farmers, sellers and consumers.

The dependency on this once prohibited crop has further been explained by Vincent Kizito, the chairperson of Wakiso Miraa Growers and Dealers Association Limited, who says that the crop should be treated as a delicacy because it is a source of family income and children school fees.

They argued and submitted before the court affidavit evidence from their chairperson Kizito and their legal officer Isabella Nakiyonga to show that it was unconstitutional for parliament to ban mairungi. They asked the Constitutional court to decategorize khat as a prohibited plant and psychotropic substance under the Narcotics Drugs Act in question.

They further asked court to issue an order permanently staying the implementation of the Narcotics Drugs Act and award them the costs of the petition for the inconveniences caused.

On their part, the Attorney General through affidavits of state attorney Brian Musota and the deputy clerk of parliament Paul Wabwire asked court to dismiss the case on grounds that the petition raised no issues or questions that require constitutional interpretation.

In their judgment, the justices agreed with mairungi farmers that the process of passing the bill was flawed because the required number of MPs was not attained on November 19, 2015 when the said bill was passed.

A panel of five justices led by deputy chief justice Richard Buteera, Stephen Musota who has since been elevated to the Supreme court, Muzamiru Mutangula Kibeedi, Irene Mulyagonja and Monica Mugyenyi unanimously annulled the law and ordered the government to pay the farmers costs they have spent on this petition.

They ruled that the parliament breached its own rules of procedure as the existence of a quorum at the voting stage means the bill receives the majority or enough votes in order for it to be lawfully passed.

“From the review of the Hansards of 18th, 19th and 20th, 2014, it is my finding that the Petitioner has a valid complaint. Before a vote could be lawfully taken by Parliament, Rule 23 (3) of the 2012 Rules of Procedure of Parliament required the Speaker to ascertain whether the Members present in the House form a quorum for the vote to be taken,” said Mutangula Kibeedi.

According to the justices, sadly the copies of the Hansard, which were exhibited before this court neither prove that the speaker ascertained the existence of a quorum at the critical times, nor provide the numbers of MPs who were present.

“This makes it impossible for this court to rely on the Hansard to make its own inference that the numbers involved in the vote met the minimum prescribed for constituting a quorum,” said Mutangula Kibeedi.

The justices have added that the speaker of parliament ought to reflect with certainty the number of members of parliament who are present in the House at the material time, how many of those are entitled to vote, and how many of those are not entitled to vote (ex-official members).