Mari

The Uneven Scale

(By Chevy Devonish) With all the chatter globally about the legalisation of cannabis many local observers have begun to wonder whether it may be time to rethink Guyana’s narcotics laws.

Although arguments championing the decriminalisation of cannabis vary, some of the more popular assertions centre on the premise that the criminalisation of the narcotic, and the resulting penalties, does nothing to deter demand and supply, and therefore does not stem the problem. It has long been argued that the penalties attached to the use and/or trafficking of marijuana, in Guyana, are excessive as they attract lengthy prison sentences and lead to crowding in facilities already woefully overcrowded.

This is all in addition to the fact that persons, already serving prison sentences for trafficking and/or use of marijuana, continue to ply their trade behind bars, sometimes assisted by prison officers. That these same persons are sometimes caught and slapped with additional sentences speaks volumes to the effectiveness of existing legislative arrangements. Many believe that the laws really only serve to reinforce public condemnation of what is considered, by some, to be an immoral act – consuming or trafficking cannabis. But, perceptions of what is morally upright continue to give way to a more pragmatic outlook, as is evident by the torrent of advocates, regionally and internationally pushing, for various reasons, the decriminalisation and/or regulation of the narcotic.

With the opinion on marijuana changing abroad, two questions must be asked at home: Are Guyana’s laws on cannabis effective? And if not, is there is a need to amend the existing approach through legalisation, regularisation, a combination of both, or some other method?

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Legislation

Guyana’s legislation on marijuana is mandated by obligations to international law, including the United Nations (UN) Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Article 1 (b) of the convention defines the “cannabis plant (as) any plant of the Genus Cannabis” and lists it as an illicit drug.

Article 3 (1) states that: “Each party shall adopt such measures as maybe necessary to establish as criminal offences under its domestic law, when committed intentionally.”

Guyana’s response is its Narcotic Drugs and Psychotropic Substances (Control) Act.

Section 5 (2) of the Act says that “in any prosecution for an offence under this section, where any person, other than a person referred to in section 4 (3), is found in possession of more than fifteen grams of cannabis or cannabis resin, the burden of proving that he is in possession of the narcotic for a purpose other than the purpose of trafficking shall be on him.”

Section 12 outlines cannabis related activities which are considered criminal acts and stipulates penalties for each. For instance, smoking marijuana is considered a crime. It is also a criminal act to be found, “without a “lawful and reasonable excuse,” on or in any premises to which persons resort for the purpose of smoking marijuana.

Also, anyone who owns, occupies or manages any premises used for the purpose of smoking marijuana, or gives permission for the building to be used for that purpose is considered to be in contravention of the Act.

It is also illegal to be found in possession of any utensil used in connection with the use of marijuana. In any of the above-mentioned cases a person may be liable “on summary conviction, to a fine or not less than six thousand dollars nor more than fifteen thousand dollars, together with imprisonment for not less than one year nor more than three years; or on conviction on indictment, to a fine of not less than fifteen thousand dollars nor more than thirty thousand dollars, together with imprisonment for not less than three years nor more than ten years.”

The penalties are harsher for trafficking cases. Anyone who traffics, or is found in possession of marijuana for the purpose of trafficking, on summary conviction, is liable “to a fine of not less than thirty thousand dollars or three times the market value of the narcotic, whichever is the greater, together with imprisonment for not less than three years nor more than five years.”

If convicted, a person is required to pay (G) $75,000 or three times the market value of the marijuana they were found with. The fine is accompanied by a life sentence in prison. So, it is obvious that Guyana has enacted laws to, in keeping with international law, criminalise the use and trafficking of marijuana. But are they working?

Critics have argued that the net was cast much too wide and can snag persons who were just in the wrong place at the wrong time. This, it has been argued, is indicative of the law’s defects. The sheer volume of marijuana use and trafficking cases brought before the country’s courts also takes a stab at answering the question.

On May 8th, 2014, 33-year-old Shawn Cummings was slapped with a $30,000 fine and sentenced to three years in prison after he admitted to being in possession of 28 gram of cannabis for the purpose of trafficking. More recently, on August 12th, 22-year-old Devon Nedderman was fined $300,000 and given a three year sentence after he was found, in the vicinity of the Camp Street Prison, in possession of 250 gram of cannabis. Asked what he was planning to do with the drugs, the man told a court “is lil weed ah guh fuh throw over the prison wall,” the Stabroek News reported.

Going a bit further back, in 2011 a 46-year-old labourer received a three-year sentence and was fined $30,000 after he admitted to being in possession of 27 gram of ganja for the purpose of trafficking. One year earlier, New Amsterdam labourer Robert Stewart was given four years in prison and was required to pay a $160,800 fine for possession of 268 gram of cannabis sativa for the purpose of trafficking.

Clearly, people are being made to pay fines and are going to prison for their transgressions. But, aside from criminalising the act and punishing transgressors, are the laws achieving what is supposed to be their main goal: deterring the use of and trafficking in cannabis.

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A look at a few more cases can assist us in answering this question. On August 5th ,2014 26-year-old Eon Fraser, a prisoner of the Camp Street Prison, got an additional four years in jail and was fined $438,400 after he  accepted that he had 32 gram of cannabis in his possession for the purpose of trafficking. He was already serving a four-year sentence for narcotics possession.

About a month before, an inmate serving out the final four months of a sentence for simple larceny got an additional four years for attempting to smuggle 68 gram of marijuana into the Camp Street prison for the purpose of trafficking. In May, yet another prisoner had his sentence extended after he was caught trying to take marijuana into the prison.

This time, Odinga Edwards, who was already on a 54-month long sentence for robbery, admitted to attempting to smuggle 40 gram into the Camp Street Prison in his anus. A four-inch plastic bag was reportedly found in the man’s rectum during a strip search. In addition to his increased sentence he was required to pay a $10,000 fine.

In 2011, Chandradat Peersaud, a prisoner currently serving a sentence of 15 years, was sentenced to an additional three years after he pleaded guilty to the charge of possession of narcotics for the purpose of trafficking. He was also fined $30,000. In 2010 Ovid Joseph, while serving a previous sentence got an additional three years after he tried to smuggle 55 grams of cannabis into the Camp Street Prison for the purpose of trafficking.

In the same year, Patrick Coats, who was serving a two-year sentence for stealing a cellular phone, got three years added to his sentence after he was caught attempting to smuggle 32 grams of cannabis into the Camp Street Prison for the purpose of smuggling. He too concealed the narcotic, which he claims to have gotten from a prison officer, in his rectum.

These are but a few of the myriad of examples which suggest that government has been unsuccessful in achieving the level of deterrence it is searching for. Instead, the prison system is being rammed full of inmates required to serve out three year sentences, some of whom, if above-cited articles are anything to go by, are likely to have their sentences extended before they complete the existing ones.

This puts immense strain on Guyana’s prison system which, by all indications, is already stretched to the limit. Every one of these prisoners require up-keep, regardless how humble, which government, using tax dollars, is required to pay for. Suffice to say, these funds could be used more constructively.

Earlier this year, in Barbados, a man charged with possession of one-and-a half pounds of cannabis, possession with intent to supply and trafficking and importation was sentenced to eighteen months in prison. Last May, a pregnant Jamaican entering Barbados from Trinidad was intercepted with 17 packages in her digestive system. She was charged with possession of cannabis, possession with intent to supply, trafficking in the drug and importing the drug. She got twelve months for each charge and the presiding Magistrate decided they would run concurrently.

Later that month another man was intercepted with 175 grammes of cannabis while trying to enter Barbados through the Grantley Adams International Airport. He was charged with possession, possession with intent to supply and trafficking an importation and sentenced to 12 months in prison.

Comparing Guyana’s penalties to those of Barbados suggests that our own laws may be excessive and, may be, in need of amending, or repealing altogether. The former is suggested by Guyanese-born security specialist Dr Ivelaw Griffith.

In an interview with Stabroek News earlier this year Griffith expressed support for the “selective decriminalisation” of marijuana as part of the overall strategy for responding to the wider drug threat facing the region.” He nevertheless noted that “Washington is likely to frown on initiatives in the Caribbean to decriminalise” marijuana, the article also said.

Guyana’s Legal Affairs Minister and Attorney General, Anil Nandlall, while noting the renewed vigour with which the decriminalisation debate is being conducted says it may now be time to review the relevant laws. Before any solid decisions are taken though, he said in a Stabroek News report, a “national conversation” must commence and consultations must be held. The minister’s statements indicate willingness on the part of government to commence the process of undertaking change. However, that interview was conducted in January and Guyana’s government has not since pronounced, publicly, on the matter much, if at all.

In the meantime, change in this regard is sweeping across the region. Last December, Uruguay became the first country to legalise the cultivation, distribution and consumption of marijuana. Under a government-sponsored bill “Cannabis consumers will be able to buy a maximum of 40 grams (1.4 ounces) each month from licensed pharmacies as long as they are residents over the age of 18…,” a Reuters report read.

The move is aimed at “wresting the business from criminals,” the report also said. Even before this move though, the governments of Belize and Guatemala were floating the idea of decriminalising marijuana. The use of and trade in marijuana remains illegal in these countries although considerations continue. As recently as April 2014 Guatemalan President Otto Perez said “a plan to legalise the production of marijuana and opium poppies” could be presented by this year’s end,” an April 3rd Reuters article said.

 

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Talks of decriminalising marijuana has also been very audible in Mexico, which, because of its geographical location, sees innumerable amounts of cannabis and other narcotics slip in and out of its borders yearly. A July 20, report published last year by Reuters reported the country’s former President Vicente Fox as saying that “Mexico could legalise marijuana within the next five years.” The article further stated that Fox, “who battled the powerful cartels while president between 2000 and 2006, has since become a staunch advocate of Mexico’s drug laws, arguing that prohibition has helped create the criminal market that sustains the gangs.”

In the Caribbean, Jamaica, which was considering decriminalising marijuana as far back as the 1990’s, announced in June that it would make possession and use of small amounts of the narcotic allowable. The amendment of the island’s Dangerous Drugs Act was expected to be formally amended soon, Reuters reported. This development is particularly interesting as similar efforts in the 90’s came to a grinding halt after the United States (U.S.) made its opposition to the idea known.

This was noted by Griffith in his interview with Stabroek News. He pointed out that many developing countries which might consider decriminalising marijuana will first consider the fact that they depend on the U.S. for, among other things, aid, tourists, and support when soliciting funds from international bodies. Of course, marijuana has now been decriminalised in two U.S. States – Colorado and Washington.

Further the Caribbean Community (Caricom) is looking at a more collective approach to decriminalisation of marijuana. According to a July 7th Stabroek News report, the Caricom Heads agreed to the setting up of a Commission which will advise, based on specific considerations, whether there should be a change in the current drug classification of marijuana towards making the narcotic more accessible to users.

“The decision comes amid growing calls in the region for the decriminalising of ganja for recreational and medical use,” the report also said. In light of the realities government must consider this issue more actively. The laws which have been put in place to deter the use and decriminalise trafficking in marijuana are failing to do so and, as such, something must be done.

Different counties have, and continue to take varying approaches to this very issue as Guyana is not alone in its dilemma. Government therefore has models to consider and ultimately decide which is better. As was stated by the Attorney General, public consultations will be instrumental in effecting any change which includes decriminalisation or anything of the like. Alas, the solution is not given. It remains clear however, that a solution has to be attempted.

Chevy Devonish is a journalist and part-time lecturer at the University of Guyana

 

 

 

 

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