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Is Kenya Ready for Adoption of Alternatives to Incarceration for Drug Offenders?

By Simon Mwangi

There is ongoing robust conversation among experts regarding moving away from imprisonment of drug users, especially first offenders, as a mode of punishment to exploring other avenues of punishment that allow them access treatment for drug dependence. 

In December 2018, the United Nations Office on Drugs and Crime (UNODC) brought together over forty justice and health practitioners from within the country to promote treatment and care as alternatives to conviction or punishment for people with drug use disorders in contact with the criminal justice system. They discussed non-custodial options to provide treatment and care at different stages of the criminal justice process, exchanged information on challenges and opportunities and identified priorities for action to use treatment as alternative in the country.

Strange as it may sound, drug dependence specialists and experts have long argued that persons suffering from drug addiction should be treated differently. They have argued that some of the alternatives to incarceration have been successful in some countries.

Kenya’s Narcotics, Drugs and Psychotropic Substances Act of 1994, which was amended last year, provides that where a person has been charged for possession of cannabis, and where they satisfy the court that the cannabis was intended solely for their own consumption, they are liable to imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings.

Statistics show that more than 30 million people worldwide are suffering from drug use disorders and only one in six have access to treatment, and this is according to the UNODC estimates. They also point to a situation where a huge percentage of these people are in prison or in other ways in contact with the criminal justice system at some point in their life.

The Kenyan law further provides that in respect of a narcotic drug or psychotropic substance, other than cannabis, and where a person is in possession of less than one gram, they are liable to a fine of not less than five million shillings, or to imprisonment to a term of not less than five years, or to both such fine and imprisonment.

On top of the penalties mentioned, the law also provides committal to appropriate court appointed treatment programme or to voluntary submission to a rehabilitation programme for a period not less than six months, where the court deems fit.

One common alternative to incarceration for drug offenses in the developed nations is probation or monitoring. There are several ways through which this is achieved and at times, the individual must check in every day at a certain location, where they are drug tested. Other times, they meet with a probation officer regularly, or are put on house arrest.

In August 2019, the country was treated to a rare occurrence when some twenty-two drug users detained in police stations in Mombasa asked a magistrate court to compel the police to supply them with methadone. This was during the mention of their cases in one of the coastal town’s courts. Methadone is a synthetic analgesic drug which is used as a substitute in the treatment of morphine and heroin addiction.

In the above mentioned case, a suspect who had been charged with being in possession of one roll of bhang, asked the magistrate to order the police to supply the addicts with methadone, claiming since his arrest he had been experiencing severe headache.

Proponents of this idea also posit that when non-custodial measures are used as an alternative to imprisonment, they contribute directly to the reduction of the prison population. They also support meritoriously the rehabilitation and reintegration prospects of offenders, which in turn results in long-term alleviation of prison overcrowding.

Research is increasingly showing that putting people in jail for drug use has little to no impact on whether or not they stop using. Therefore, for Kenya, this is work in progress and a lot needs to be done with regards to legislative reform to ensure that a wide range of alternatives to imprisonment is available and sustainable in law, policy and practice at every stage of the criminal justice process.