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.
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.