The Limits of The Criminal Sanction: Possession, Harm and Therapeutic Evidence in The Case For Cannabis Law Reform in Nigeria

Abstract

The continued criminalisation of simple cannabis possession in Nigeria rests on an expansive conception of the criminal sanction which contemporary criminal jurisprudence does not support. Section 11 of the National Drug Law Enforcement Agency Act prescribes a minimum of fifteen years’ imprisonment for knowing possession, and the Indian Hemp Act preserves penalties of comparable and in places greater severity. This article argues that the prohibition cannot be justified on any principled account of the proper reach of the criminal law, and that its costs are borne disproportionately by the young, the poor and the unrepresented. It advances two arguments not developed in the existing Nigerian literature. The first concerns the harm of criminalisation itself: the disproportion of the statutory minimum, the contribution of possession prosecutions to pre-trial detention and custodial congestion, the collateral consequences of a criminal record in an economy of scarce formal employment, the opportunities for extortion which street-level enforcement creates, and the deterrent effect of criminal liability upon treatment-seeking in a country where some three million people live with drug use disorders. The second concerns the therapeutic evidence: the conclusions of the National Academies of Sciences, Engineering and Medicine on chronic pain, chemotherapy-induced nausea and multiple sclerosis spasticity; the regulatory approval of cannabidiol and other cannabinoid medicines; and the decision of the Commission on Narcotic Drugs in December 2020 to remove cannabis from Schedule IV of the Single Convention on the footing that its liability to abuse is offset by substantial therapeutic advantages. The said decision removed the international premise on which Nigerian prohibition was constructed. Drawing on comparative material from Jamaica, Ghana, South Africa, the Commonwealth Caribbean, Australia, Canada, New Zealand and the African cultivation States, and addressing Nigeria’s obligations under the drug control conventions and the limitation clause in section 45(1) of the Constitution, the article proposes a three-tier statutory model and a draft amendment.