Drug Control in the Era of Devolution

By Mohamed Boru

Kenya’s shift to a devolved system of government has seen a re-distribution of functions that the government is supposed to perform. Where such functions were once a preserve of the national government in Nairobi, the new dispensation has brought about devolution of functions between the national and county governments depending on who is best placed to perform them. One such function that has been devolved is the control of drugs. (>Schedule 4 of the constitution gives a breakdown of the functions to be performed by the two levels of government).

Devolution of such a function gives County Assemblies the mandate to pass laws that give effect to this function. This means that each of the 47 County Assemblies can come up with drug control legislation unique to their County despite existence of national laws that were enacted for the same function.

The Constitution of Kenya (2010) provides that in instances where a function is divided between the two levels of government, national legislation takes precedence over county legislation in case of conflict between the two sets of laws. But where a function is the preserve of the county government (such as control of drugs), county laws will supersede existing national legislation that governed such functions. Such a drastic shift is bound to have interesting consequences in attempts to control drug use in the country.

If for instance a county feels that a certain drug or substance is of detriment to the residents of the county, it can pass laws that will control the distribution and use of the substance or drug in that county. This was the case when Garissa County announced plans to regulate the sale and use of miraa within the county despite no such restrictions on the substance under national laws.

It gets more interesting where a particular substance is popular with residents of the county but has been banned for one reason or another under existing national legislation. In such a circumstance, the county in question can pass legislation that will allow for use of such substances regardless of the illegal status conferred to the substance by national legislation.

In counties where drug abuse has become a menace, the county can enact laws that explore alternative models of drug control to the existing model of criminalizing drug use that has done little to control drug use. Mombasa County – a haven of drug abuse – can decide to explore models that have proved successful in controlling drug abuse and its negative effects in other jurisdictions. Portugal’s model would be a good precedent where the country addresses drug abuse as a public health problem as opposed to a criminal-justice one. Here, drug users are subjected to a hearing and instead of being sent to jail, they are sent to a rehabilitation center. Such a restitutive approach aims to return the ‘offender’ to their original state in contrast to the retributive approach that seeks to punish the user. This model has proved quite successful with the number of drug addicts in Portugal reduced by half as well as reduction in spread of STD’s and death by drug overdose.

What we are likely to have in future is a scenario such as what is currently being witnessed in the USA where residents of the states of Colorado and Washington recently passed ballot initiatives that made it legal to cultivate, sell and consume a limited amount of cannabis for those aged above 21. The two states stand out for defying federal (national) laws that criminalize pot use and hands out stiff punishments to ‘offenders’. The federal government while initially opposed to these provisions has shown a shift with US Attorney General Eric Holder indicating that the federal government won’t be pursuing pot users in these two states. The move is in line with attempts to decriminalize and/or legalize drug use that is gaining traction in South American countries like Uruguay.

Uruguay opened a pandora's box by legalizing cannabis use against UN Conventions

Uruguay opened a pandora’s box by legalizing cannabis use against UN Conventions (image c/o slate.com)

The legalization of previously banned substances is also bound to have other implications such as revenue generation for the particular counties as the substances would now be taxed. Such a paradigm shift might also spawn the emergence of ‘drug tourism’ where residents of different counties travel to a particular county to partake in substances that would otherwise have them arrested in their home counties. Netherlands has been doing this for decades with Amsterdam famed for its liberal stance on drug use.

Moving forward, it will be interesting to see how the drug control authority NACADA deals with the devolution of drug control what with Counties likely to challenge what has been exclusively its core mandate.

About the Author

Galimo Askumo
An explorer, an infomaniac and a hippie. I got tired of wanting to read detailed, long form articles on various topics that interest me so I decided to write about them. My username is an ode to the last two known members of my family tree which goes back 11 generations.

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15 Comments

  1. solo

    Great read. Like the fact that you can diversify your writing. I am very sure u can write about anything. This is truly a newspaper articles. Keep it up….Gode will never be legalized in any county for sure

  2. Mwanake wa 90 (@Kimjobil)

    i didnt know that drug control was the preserve of counties….this was an extremely stupid law to make in my opinion! counties have shown they are not capable of regulating waste disposal, and now they are in control of such a monumental policy?? thanks for the read man, this was extremely educative.

    • panoramicdon

      Thanks for your comment Job. As indicated in the post, functions were distributed before the Constitution was passed and can be found in Schedule 4 of the Constitution. (Click on the link) The functions were distributed based on who was thought to be best placed to perform them. I’m sure the Committee of Experts had valid reasons to devolve this function. At present, counties are collecting money for liquor licenses and approving opening of liquor joints. Don’t you think they are best placed to decide where a bar can/can’t be opened since they are on the ground as opposed to having such a decision made in Nairobi?

  3. Loso

    I agree with mwanamke wa 90,i think devolution has failed to take of so why devolve such laws?
    I also like the fact that in portugal drug abuse is not a criminal offence thus reduced drug abuse.

    • Loso

      *off

    • panoramicdon

      Loso, functions were devolved the moment the constitution was passed. This is not a recent occurrence. As for Portugal’s laws, yes it’s good that they approach it as a health issue as they should. Much more effective than criminalization

      • Loso

        Devolution on paper,still yet to take effect man.

        • panoramicdon

          Working in the governance sector, I can tell you that devolution is taking shape. Challenges abound but structures slowly being set up

  4. Arnold

    Keep it up .wonderful writing . As one experiencing devolution first hand , the County Assembly is powerful. With all due respect ,most of MCAs levels of education are wanting and they don’t even understand some bills hence may end up [assing them blindly

    • panoramicdon

      Thanks Arno. The last parliament messed up this country by diluting educational provisions in the Elections Act but slowly we’ll get there.

  5. Mwanake wa 90 (@Kimjobil)

    it is not the bars i am afraid of man,though i am sure liqour prices will shoot up soon as these people milk us dry of every rate and levy they can dream of…i am more concerned about the hard drugs and illegal substances.do counties have capacity to regulate and pass laws on these substances?

    • panoramicdon

      While MCA’s may have limited educational capacity, they have competent researchers and legislative drafters to translate their legislative proposal into tangible laws. Whether such legislative proposals may be sound is another question. But don’t forget that it takes one Member who is informed to come up with a good proposal that is translated into a bill and with some lobbying in the Assembly, the bill is passed into law.

  6. Wailingsoul

    We all know what this means. We are getting ever closer to legalization of pot. Soon you will hear debates as to whether it has any financial benefits. I wonder if Nairobi county can step up and get high!

    • panoramicdon

      Legalization is a long shot. Probably decriminalization by some county which might open the conversation on whether the current model is sustainable.

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