On 15th March 2011, one Ifeanyi Blessing was arrested at a motor park in the village of Ojo- gbonro Kanbi in Ilorin East Local Government Area of Kwara State with a bag containing dried weed suspected to be Cannabis sativa. On 21st March 2011, Ifeanyi Blessing was arraigned before the Federal High Court, Ilorin on a three-count charge for unlawfully dealing with 2.4 kilograms of Indian Hemp and unlawful possession of 15.4 kilograms of Indian Hemp. She pleaded not guilty to each count. The Trial Court, in its judgment, discharged and acquitted Ifeanyi Blessing on Counts 1 and 3 which bordered on unlawfully dealing in Indian Hemp but was found guilty on Count 2 which bordered on unlawful possession of the substance and sentenced to fifteen (15) years imprisonment. This decision was upheld by both the Court of Appeal and the Supreme Court.[1]
- INTRODUCTION
The presence of the British in Nigeria for centuries has left an indelible mark on our legislative and judicial system. Nigeria’s legal framework has a long history, dating back to the British colonization of the nation in the early 1900s when Nigeria became a British Protectorate. During this period, they promulgated laws and established correctional facilities and mediums based on their judicial system. The Received English law is made up of rules of Common Law, Doctrines of Equity and Statutes of General Application. Enactments, such as the Wills Act of 1837, Fatal Accident Act of 1864, among others, are examples of Statutes of General Application.
The British colonial administration did not consider the Nigerian social, cultural and economic background before imposing their laws on the Nation. After independence, the composition of the Nigerian legislature became fully indigenuous and the expectation was that the legislature would review received foreign laws and enact laws to reflect the realities of the Nigerian society.
It is worthy of note that one of the key attributes of a good law is that it must be dynamic and evolve to meet the growing and emerging curves in human civilization and cross-interaction. Hence, it is expected that Nigerian laws would similarly grow with time, and reflect international best practices. The United States of America for example, being a former colony of the United Kingdom themselves, has taken steps over the years to improve and change its laws to reflect its realities and represent international best practices.
In the 20th Century, it was believed that undesirable behaviours could be eliminated by rigorous law enforcement. This led to the criminalization of some personal behaviours including some sexual practices, gambling, gun possession, and the use of alcohol and drugs which were previously beyond the reach of the law; the most noteworthy example being the prohibition of alcoholic beverages in the United States from 1919 to 1933. However, starting from the 21st Century, the bans on these activities were lifted, and most of them were decriminalised.
In 1937, through the Marijuana Tax Act, Cannabis production was prohibited in the United States of America[2]. However, today, 16 States, including Washington D.C have legalised the use of Marijuana for adults, while 36 States have legalised its medical use[3]. This change was influenced by the prevalence of its use in America and globally.[4]
This article focuses on the laws regulating or rather, criminalising the cultivation and processing of Cannabis in Nigeria. It interrogates Nigeria’s legislative growth regarding drugs, particularly Cannabis, and questions whether there is need for a change in the way we approach the topic. It ends by highlighting the costs of these laws, considering the human capital and potential economic activities involved.
2.0 THE LEGAL FRAMEWORK FOR CANNABIS REGULATION IN NIGERIA
British colonial authorities engaged in small-scale Cannabis cultivation from as early as the 1930s[5] in their colonies, including Nigeria, whilst its cultivation, use, processing and importation had been banned in the United Kingdom by virtue of the Dangerous Drugs Act of 1926 that included Cannabis as a dangerous drug[6]. In 1935, the Dangerous Drugs Act came to force in Nigeria, criminalising the use of Cannabis in Nigeria.
Nigeria’s current laws, both received and enacted after independence, criminalize the possession, transaction, and use of Cannabis. Some of the laws expressly addressing this under Nigerian law include:
- The National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation, 2004. (“NDLEA Act”).
Section 11 of the NDLEA Act provides for the offence of production, processing, sale, and importation of hard drugs, which includes Cannabis. It also provides that upon conviction, the accused person is liable to be sentenced to life imprisonment.
The section also provides for the offence of possession and the use of Cannabis. The accused person upon conviction is liable to imprisonment for a term not less than fifteen years but not exceeding twenty-five years.
Furthermore, Section 19 of the NDLEA Act states that anybody in possession of Cannabis without valid permission is guilty of an offence under the Act and faces a penalty of imprisonment of not less than fifteen years and not more than twenty-five years, if convicted.
- Dangerous Drugs Act, Cap. D1, Laws of the Federation, 2004 (“DDA”).
Section 2 of the DDA defines Indian Hemp thus:
- Any plant or part of a plant of the genus cannabis; or
- The separate resin, whether crude or purified, obtained from any plant of the genus cannabis; or
- Any preparation containing any such resin, by whatever name that plant, part, resin, preparation may be called.
Section 10 of the DDA, includes Indian Hemp as a kind of dangerous drug.
The DDA, in general, governs and regulates the licensing and importation of drugs classified as dangerous under the Act. The Act also establishes penalties for violations or non-compliance with the regulations contained in the Act.
- Indian Hemp Act, Cap.I6, Laws of the Federation, 2004 (“IHA”).
According to Section 5 of the IHA, any person guilty of possessing and smoking Indian hemp shall be liable on conviction to imprisonment for a term of not less than four years without the option of fine.
Section 7 of the IHA makes it illegal to utilize a premises for the sale, procurement, processing, manufacturing, or smoking of Indian hemp. According to the section, anybody who occupies such premises and consents to the use of the premises for the sale, procurement, processing, cultivation, or smoking of Indian hemp is guilty of an offence and liable upon conviction to a ten-year sentence without the option of a fine.
There are also, a plethora of decided cases of the Supreme Court, convicting persons for the unlawful possession, transaction of, and use of Cannabis (Indian hemp). For instance, the case of Chukwudi Oyem v. the Federal Republic of Nigeria delivered in April 2019, and reported in [2019] 11 N.W.L.R Part 1683, where the appellant was charged at the lower court on one count charge, of transporting 103.1 kilograms of Indian hemp (Cannabis Sativa). After the trial at the trial court, he was convicted and sentenced to 5 years’ imprisonment. He appealed to the Court of Appeal, where his appeal failed, and thereafter to the Supreme Court which also dismissed his appeal. Also, in the case of Blessing v. FRN[7], the Court, per K.M. Kekere- Ekun JSC reiterated the ingredients for convicting a person under the NDLEA act thus:
“1. That the substance was in the possession of the accused;
2.That it was knowingly in his possession;
3.That the substance is proved to be Indian Hemp (cannabis sativa); and
4.That the accused was in possession of the substance without lawful authority.”
Similarly, in the cases of the Federal Republic of Nigeria v. Faith Iweka (2013) 3 N.W.L.R. Part 1341; Umar v. FRN (2018) LPELR-46336(SC); and Nwadiem v. FRN, (2018) LPELR-44506(CA), the Court convicted and sentenced the appellants for the offence of possession of Cannabis.
It was reported by the National Drug Law Enforcement Agency (NDLEA) that a total of 126 Nigerians across 14 states in Nigeria were sentenced to various jail terms for drug-related offences between January and February 2021.[8] Also on the 7th of February, 2021, the NDLEA reportedly intercepted marijuana worth an estimated N1.4billion. The question therefore is – “Could the country have properly injected the N1.4 billion worth of Cannabis in our own pharmaceutical industry?”
The above examples depict the cost of maintaining these Cannabis laws by the Government, and ensuring their efficacy. This is so as monies, time and labour expended in tracking, fighting and prosecuting Cannabis related crimes are enormous. The cost also continues when the government has to take care of these convicted persons using taxpayer money for long durations. In a 2011 report by the Transform Drug Policy Foundation , it was reported that an estimated $100 billion was spent globally on drug law enforcement[9]. Although there are no readily available estimates in Nigeria, it is obviously conceivable that the costs would run into billions of naira.
On the whole, this disquisition argues that the limited resources devoted to this system imposed on us by antiquated laws, either directly or indirectly, should be reallocated to the development of a viable Cannabis industry for the benefit of the nation, even if we are playing catch up.
3.0 LEGALIZATION OF CANNABIS AND THE INTERNATIONAL COMMUNITY
In reviewing a series of World Health Organization (WHO) recommendations on Cannabis and its derivatives, the WHO on Narcotic Drugs (CND) zeroed in on the decision to remove Cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs — where it was listed alongside specific deadly, addictive opioids, including heroin, recognized as having little to no therapeutic purposes.[10]
The 53 Member States of the Commission on Narcotic Drugs (the United Nation’s central drug policy-making body) voted to remove Cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs.
Thailand, a conservative nation like ours took a huge step by enacting the Narcotics Act 2019, which currently regularizes the use and purpose of Cannabis in Thailand. It has been forecasted that Cannabis could generate about 8 Billion Thai Bhat for the Pharmaceutical industry in Thailand.[11]
4.0 THE ECONOMIC IMPLICATIONS OF THE LEGALIZATION OF CANNABIS
The economic benefits of legalizing Cannabis are boundless. It is remarkable to state that the Cannabis industry in America made a whopping $13.6 billion in 2019, with at least 340,000 jobs across its value chain, while Cannabis companies have raised $118.6 billion in the same year[12]. This number has taken a hit, due to the coronavirus pandemic, with the industry managing only $20billion worth of business in 2020[13]. However, market analysts are projecting an upward spiral, with the US market expected to generate at least $85 billion by 2030.
Similarly, the Canadian Cannabis market is projected to soar, with the legalization of its recreational use vide the Federal Cannabis Act. Canada has expanded its horizons in this regard and Canadian licensed companies are now aggressively pursuing this business in a bid to dominate the space. This indeed shows potential for immense foreign direct investment coming into Nigeria, which will have a positive bearing on our GDP.[14]
The Cannabis market continues to grow past its conventional use. A lot of products have been developed and are being developed from Cannabis, from edibles including cookies, chocolates and gummies to beverages, and combustibles used for materials, all for recreational usage, to wellness products like oils, hair creams, capsules, cosmetics, beauty and skincare products, to the more regulated medical Cannabis industry, being a feature for drugs aimed at alleviating epilepsy, glaucoma, multiple sclerosis, chronic pain, depression, and for chemotherapy among others.
It is believed that the Cannabis industry would continue to grow tremendously and that through purposive legislative, regulatory support and control, Nigeria could be a world leader in that market. Nigeria has a fertile land for the cultivation of a variety of Cannabis and a budding unemployed youth to man the factories. This would, however, require the buy-in of all stakeholders in Nigeria, particularly the Government, being regulators. The first step to the realisation of this objective would be to finance top-end research into the Cannabis potentials of Nigeria and identify the products to be developed from Cannabis. There would be a need to enact a law in this regard or overhaul the extant Indian Hemp Act, Dangerous Drugs Act, the NDLEA Act and the NAFDAC Act to move from a criminalization-based approach, which is Colonial in nature, to that of a controlled economic perspective.
Therefore, the focus should be on standardization, licensing, the distinction between medical, recreational and other ancillary usages, and product streamlining; consumer centred compliance measures from the seed to sale chain by licensed companies, and the effect on public health. Policies should be based on wide research and evidenced clinical trials.
Away from revenue generation, the Cannabis industry has proven to be a viable labour and employment system. The Cannabis value chain involves large scale farming, factory settings, dispensaries and nurseries, all potentially serving as an employment net for the Nigerian youths, a lot of whom are languishing in prisons for Cannabis related offences, induced by lack of employment.
Hence, a reconsideration of the cultivation and commercialization of Cannabis in Nigeria will be a potentially economic-booming and poverty-alleviating measure.
5.0 CONCLUSION
Nigeria has great potential to dominate the Cannabis market continentally and amongst other countries outside Africa by growing with the trends. The world is changing, nations of the world are opting for clean energy, and over-reliance on oil in the nearest future could have a negative impact on the economy. Currently, the Nigerian Government expends a huge sums of money and resources to investigate, raid, arrest and prosecute persons associated with the cultivation, transaction or possession of Cannabis in Nigeria. According to the National Bureau of Statistics, a minimum of 9,284 persons were arrested in 2018 adding to the already brimming and chock-a-block correctional centres in Nigeria.
It is thus our considered view that it is high time the government, through its legislative arm, reconsidered the costs of enforcing the laws which criminalise the possession and/or use of Cannabis (among others) in Nigeria against the potential benefits of Cannabis and its cultivation in Nigeria. Where it finds that the latter outweighs the former, after a holistic consideration, the government can develop and build a sustainable legal framework for the regularization of Cannabis usage in Nigeria. We believe that it is much more profitable for the Country as a whole to consider the issue of Cannabis from a commercial perspective than to be stuck in a Colonial state of mind and be left to catch up with the rest of the world.
[1] Blessing v. FRN [2015] 13 NWLR 5.
[2] Nick , J., ‘American Weed: A History of Cannabis Cultivation in the United States’ (2019) 48 EchoGeo < http://journals.openedition,org/echogeo/17650 > Accessed 22 October, 2021.
[3] Jeremy Berke , Shayanne Gal , and Yeji Jesse Lee, ‘ Marijuana Legalization Is Sweeping The US. See Every State Where Cannabis Is Legal’<https://www.businessinsider.com/legal-marijuana-states-2018-1?IR=T > Accessed 22 October, 2021.
[4] Saurav Bhola, ‘Sociological School of Jurisprudence’, <https://blog.ipleaders.in/sociological-school-of-jurisprudence/ > Accessed 28 July, 2021.
Sociological jurisprudence is a term coined by the August Comte (1798-1857) to describe his approach to the understanding of the law. This philosophical approach to law stresses the actual social effects of legal institutions, doctrines, and practices. It examines the actual effects of the law within society and the influence of social phenomena on the substantive and procedural aspects of law. This is also known as sociology of law
[5] “Assessing-Nigeria’s-Drug-Control-Policy” (PDF). Count the Costs. https://en.wikipedia.org/wiki/Cannabis_in_Nigeria#:~:text=Cannabis%20in%20Nigeria%20is%20illegal,Oyo%20State%20and%20Ogun%20State Accessed: 30th July 2021.
[6] Porter, Bernard. ‘Empire Ways: Aspects of British Imperialism’. I.B.Tauris. pp. 58–. ISBN 978-0-85773-959-9.
[7] (2015) 13 NWLR (PT. 1475) 1
[8] NAN, ‘NDLEA Secures 126 Convictions in 2 Months’ < http://www.guardian.ng/news/ndlea-secures-126-convictions-in-2-months-official/ > Accessed 27 July, 2021.
[9] Transform Drug Policy, ‘The Alternative World Drug Report’ < https://transformdrugs.org/assets/files/PDFs/alternative-world-drug-report-summary-2016.pdf > Accessed 27 October, 2021.
[10] David Gabrić ‘UN Commission Reclassifies Cannabis, Yet Still Considered Harmful’ <https://news.un.org/en/story/2020/12/1079132 > Accessed 2 December, 2021.
[11] Thai PBS World’s Business Desk, ‘ Multipurpose Marijuana Could Light Up Another Economic Engine For Thailand’ < https://www.thaipbsworld.com/multipurpose-marijuana-could-light-up-another-economic-engine-for-thailand/ > Accessed 5 May, 2021.
[12] Deborah D’Souza ‘The Future of the Marijuana Industry in America’ <https://www.investopedia.com/articles/investing/111015/future-marijuana-industry-america.asp > Accessed 7 December, 2021.
[13] George Mahaffey, ‘Why Banks are Finally Nearing a Green Light on Medical Cannabis’ < https://www.citybiz.co/article/47131/why-banks-are-finally-nearing-a-green-light-on-medical-cannabis/ > Accessed 7 December, 2021.
[14] Ibid.
(Author: O. M. Atoyebi S.A.N, Contributors: Ibrahim Wali, John Oladipo, Charles Ali).