Special Report: The big split on the war against drug use: to treat or jail drug users?

Stephen Kyenze’s ageing pair of trousers, discoloured teeth and slurred speech might have given away his doping past when he showed up for an interview.

But the adoration with which the 42-year-old father of two talked about his two daughters lent credence to the maxim that even the coldest of criminals can be transformed by deep family love.

For Kyenze, the love for his two daughters and the fear of being separated from them convinced him to turn away from crime and drugs.

Providence might have given Kyenze a fresh lease of life. But other drug users might never get such a second chance should the proposed Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Bill, 2020, pass into law.

Stiff penalty

Currently in its third reading in the National Assembly, the Bill seeks to stiffen the penalty for drug traffickers and distributors. In addition to paying a fine of not less than Sh30 million, drug traffickers will also spend the rest of their lives behind bars, if convicted.

But just as the current law seeks to amend, the Bill does not really differentiate between drug traffickers and users, raising fears that drug addicts will continue suffering in jail instead of being treated in hospitals.  

"Drug traffickers are criminals who should go to jail for an extended period while users should be hospital. That distinction is very clear in the minds of doctors. Addiction is a disease like diabetes or high blood pressure,” says Dr Frank Njenga, a mental health consultant.

The Bill, critics say, goes against the spirit of the international framework that recognises the need for drug law and policy to shift from a criminal justice to a public health approach.

In the amendment, anyone caught with drugs of between 0.1 and 50 grammes will be liable to a fine of not less than Sh30 million or thrice the value of the substance and imprisonment of not less than 15 years or both.  This is punishment for drug users.  

The Caucus on Harm Reduction and Drug Policy Reform, which brings together individual and institutional advocates on drug policy, wants the law changed so that those found in possession of narcotic substances weighing below 100 grammes be deemed to be in possession of for personal use. Such persons, the lobby says, should be put under treatment.  

But those found in possession of narcotics of above 100 grammes shall be deemed to have the intention of distribution and should face maximum penalty of Sh20 million and life imprisonment.

True, as Mr Kyenze’s story shows, often times the line between the health and criminal aspects of drugs can be blurred. Kyenze came to Kibera some nine years ago as a fugitive.  

Born in Nairobi to two Airforce parents (one of whom was killed in the 1982 aborted coup), Kyenze’s family moved to Mombasa where he grew up and started using drugs. To calm his addiction – known as Arosto in street lingo – he started trafficking drugs and often engaged in robbery.

But, every time he would be arrested, the drug lords would have him released. The police got fed up, vowing to gun him down the next time they set their eyes on him.

It was his daughters that made him flee to Nairobi, to reform. 

Drug users, such as Kyenze, don’t sell drugs, explains Bernice Apondi, a policy and advocacy expert at Voices of Community and Leadership (Vocal).

“They are just used to sell drugs. They are conduits,” says Apondi, noting drug business is for very rich people.

People get into drugs for various reasons. For Kyenze, an only son raised by a single mother who was always busy, it was peer pressure.

Others are pushed into drugs by frustration for lack of jobs. Still, others might be driven into drugs by mental illness such as anxiety and bipolar disorder.

The intention of the Bill is noble. Drug use is robbing the Kenyan society of its future – its children. Thanks to Kenya’s strategic position in the region, its sea port and airport, the country has become a favoured transit point for drugs traffickers. These drugs on transit have been increasingly been percolating into various towns and villages in the country.

Drug use is leaving in its wake a social crisis that, if not addressed, warned late Paul Koinange, the then Chairperson of National Assembly's Departmental Committee on Administration and National Security.

Innocent users

Over the years, the war on drugs has been biased against innocent users whose only crime has been addiction. The owners of drugs, mostly rich and well-connected, have fallen through the cracks of the country’s corrupt criminal justice system.

Official data shows that that seven out of 10 inmates in Kenya are petty offenders with the lowest case determination rates, according to the Annual Criminal Justice Conference of 2019.

These petty offences, the conference noted, constitute misdemeanors which include possession of drugs in small quantities.

Even as the rich drug sellers have slipped from the arms of the law, a lot of drug users have suffered in silence after being locked in police stations for about 72 hours without any treatment or intervention for withdrawal symptoms, according to a study by Emmy Kageha, a Kenyan scholar on drug use.  

There has been an average of 4,888 people in Kenyan prisons convicted of drug-related offences between 2013 and 2019, data from the Kenya National Bureau of Statistics (KNBS) show.

Melba Katindi, an advocate, notes that the number of arrests that are made of users vis-à-vis traffickers is a clear demonstration of the disproportionate application of the law.

This is also reflected in the high number of women and youth in prisons.

“And this is largely because women and youth are at the lower end of the drug trade. Those are the people that suffer most when it comes to implementation of drug control,” explains Katindi. 

The government has been blowing hot and cold in the war against drugs.

Eight years after he came to Kibera, Kyenze joined a government programme in which drug users hooked to opioids such as cocaine and heroin take a daily dose of Methadone to dampen withdrawal symptoms and cravings for opioids, or Arosto.

Kyenze says the programme has helped him to be functional – but above all to be a responsible father.  

But the same government has been arresting drug users and taking them to prisons where they can’t access treatment.

"This dithering just reflects the attitude of the society against drug users as criminals," says Apondi. She adds that this societal attitude stems from, or is reinforced, by the law. The law doesn’t say that a drug user is sick, it says such a person is a criminal.

Attempts to rehabilitate persons who are perceived as ‘criminals’ has always been met with outrage.

In 2012, when the then Minister for Special Programmes Esther Murugi, as part of the government’s wider fight against HIV, launched a project to reach key populations of addicts by providing them with safe syringes the public reacted angrily.

Not unusual

Yet decriminalisation as a means to help drug users is not unusual. Portugal decriminalised possession of drugs in 2001 not only as a means to rehabilitate drug users, but also to protect them from risky behaviours such as sharing needles.

The outcome after two decades, studies shows, has been less teen drug use, fewer HIV infections, fewer Aids cases and more drugs seized by law enforcement.

A 2019 publication, developed jointly by the United Nations Office on Drugs and Crime and the World Health Organization note that “evidence-based treatment as an alternative to conviction or punishment will not only help to reduce risks associated with a prison stay” but also help to reduce repeat offence and relapse rates among people with drug use disorders in contact with the criminal justice system.

MPs have appreciated that there are loopholes in the current legal framework, making it inefficient in the fight against drugs.

State and public officers found guilty of aiding and abetting drug trafficking shall lose their office in addition to being dragged to court.

Peter Kaluma, the MP for Homa Bay, noted that part of the reason why the courts were not able to convict the Akashas locally was because the Kenyan law does not allow authorities to intercept communication.

The current law, he said, would allow for the interception of communication which would then be used against suspects. But that has to also take into account the right to privacy.

But even as the government fights the supply of drugs, Kyenze, who tries to help young people to reform, feels that it is the role of the society to fight drug use.