I. The Question
This issue of the legalization of marijuana has braced the news for years now as different activists from researchers to celebrities to politicians have attempted to sway the masses to legalise the herb. The different activists have attempted to argue that marijuana is in fact more beneficial than harmful not only on an individual level but also on the society as a whole. This is the reason for the choosing of this topic, the fact that not only has the issue received much hype, but also the fact that citizens and the state could be missing out on a substance that has the potential of making their lives better.
II. Legislation, case-law and literature review
According to Mark A.R. Kleiman a drug is a substance which has a physiological effect when ingested or otherwise introduced into the body. Based on this definition, drug abuse is excessive or improper use of drugs especially through self-administration for non-medical purposes. The issue is therefore whether laws should be passed to legalise the use thereof for non-medical purposes. Books have been written talking about the same.
Kenya, due to the heavy influence of religion, culture and its own understanding of the effects of marijuana, that it is more harmful then beneficial, passed laws such as the Narcotic Drugs and Psychotropic Substances (Control) Act of which Section 3(1) as read with Section 3(2) making it an offence being in possession of marijuana while Section 4 of the same makes it an offence the trafficking of narcotic drugs of which marijuana has been interpreted to be. This can be illustrated by the case of R v Kavata Kioko where the accused person was charged and convicted of the offence of trafficking bhang under the act. Marijuana is to some extent allowed but only in medically prepared form. This law has been used to nab even users with little content which is inconsequential on the heavy fines without regard to the fact the accused person was simply using and thus reducing the fine. It also fails to consider the marijuana users might be using the substance due to chronic illnesses they may be suffering thus the need to reduce pain. Implementation has had its challenges as the users are nabbed when the marijuana has already reached its desired destinations. Suppliers are rarely caught as much as personal users this coupled with the fact that suppliers simply bribe themselves out of it.
At the height of the debate regarding the legalization of marijuana, the Late Hon. Ken Okoth the then Kibra Member of Parliament was at the helm of the activists pushing for legalization and introducing the Marijuana Control Bill 2018 in the National Assembly which was seeking to decriminalize the use of marijuana and control the growth and use of bhang in Kenya.
The issue of legalization continues to gather momentum as more and more research is done to show its benefits. The research and awareness about the Cannabis plant has proved that chemicals in cannabis, called Cannabinoids, are helpful in treating symptoms of chronic diseases and disorders.
Many consider that the state is missing out on a large source of revenue due to the ban on marijuana which could otherwise be exported. Niall McCarthy notes that the legalization of marijuana in several U.S. states has brought numerous economic benefits and job creation is certainly one of the more noticeable ones. He further notes that the states that have legalised marijuana report more revenue. The marijuana market is so large that according to research institute Prohibition Partners, the market for medicinal cannabis in Germany alone could swell to roughly €7.7 billion by 2028, and for the whole of Europe to €58 billion. The institute further found that statutory health insurance providers in Germany reported revenues to the tune of some €70 million last year for products containing cannabis. Mexico for example in 2018 had a revenue of $51.2 million from the sale of marijuana oil. Since Kenya has a perfect climate that has supported various plantations to a point of being the best coffee and tea producers, the same climate would be a conducive environment for marijuana to thrive turning Kenya to a major exporter. This is enhanced by the fact that in early March this year, a New York based firm claimed it had obtained a licence to cultivate marijuana on 500 acres of land in Kenya.
Activists have also argued that many communities, including here in Kenya such as the Kikuyus, have used marijuana to serve different purposes in their lives and the Indian communities that use it as food additives and in different rituals. The long term use has not produced any significant negative effects and in fact, the crime rate was lower and violence was at a minimum.
Activists also argue that cannabis, among others, has therapeutic and anti-inflammatory properties, it is an antioxidant, anti-bacterial, produces lipids and offers UV protection and as such use of a cannabis-based product can help in cell regeneration, protect from UV rays, heal skin conditions , treat acne, and regulate oil production by the sebaceous gland. They also argue that it plays an important role in medicine where its element, Tetrahydrocannabinol (THC), is promoted as a solution to nausea, physical pain and vomiting. It is responsible for the high feeling from consumption of marijuana products. This anti-nausea and anti-vomiting properties have been researched on cancer patients undergoing chemotherapy and has proven successful. Marijuana has been found to be a good pain reliever and thus the main medicinal use and as a consequence most people suffering from chronic illnesses tend to use it to ease the pain. Two Kenyan researchers, Simon Mwaura and Gwada Ogot, have been particularly vocal in the support of the legalization claiming that THC and other cannabinoids found in marijuana have been found to slow the growth and/or cause the death of certain cancer cells.
Perhaps the most controversial argument is that the criminalisation on use of cannabis by an adult in private and for personal use is in fact a violation of the right to privacy provided for under Article 31 of the Constitution of Kenya 2010 making invalid the criminalizing provisions. This has been used by some countries to legalise marijuana. In Mexico, private and personal use of marijuana in amounts of 5 grams or less was decriminalized. The same is true for Belize. Countries like Costa Rica make it illegal to smoke marijuana but the same carries no legal penalties. The argument is, not surprisingly, the same used by abortion activists that it is my own body to do to it whatever I want and the state has no business to interfere as long as I am not violating any other person’s rights which is where the state should come in. it should thus be decriminalized even if for private and personal use as in the countries mentioned above.
An argument by activists is that the criminalization of marijuana and the legalization of alcohol is in fact misplaced and it should be the other way round. As most argue, research has shown that marijuana has more benefit than harm while alcohol on the other hand has more harm than benefit. It is well-established that alcohol leads to illnesses such as liver cirrhosis. Alcohol, being more harmful, is also much more expensive than marijuana of which a pure high grade roll of marijuana will only set you back a mere 50 shillings which is affordable for most. Cheap liquor has been associated with problems such as loss of eyesight. A research found that alcohol use is a leading risk factor for global disease burden and causes substantial health loss. It also found that alcohol use was the seventh leading risk factor for death. A research by Nacada found that out of the 3 million Nairobi residents in 2009, 1.8 million were alcohol abuses. Marijuana users are also generally more peaceful than alcohol users. This this coupled with the comparison of the effects of marijuana and alcohol should necessitate the state to criminalise alcohol and legalise marijuana even if for private and personal use as alcohol abusers will get an alternative “better” drug and abandon alcohol which is also associated with violence, dangerous driving and public nuisance.
Opposers have however argued that marijuana is bad for the whole body impedes actions such as driving and operation of machinery. It is common belief that marijuana makes the users dumb and thus the name dope. They argue that marijuana users also run higher risks of developing mental health problems like schizophrenia and depression and that cannabis is highly addictive studies showing that one in ten users develop dependence over time while stopping the use thereof can lead to withdrawal symptoms like anxiety and irritability. It is also a common belief that states have in fact criminalized marijuana due to the fact that even if legalized for personal and private use, the state will have no means of ensuring that the drug does not fall into the hands which of minors who have no capacity to weigh the benefits and harm of marijuana and will use the substance considering the benefits while disregarding the harm
Based on the above facts, I can argue that the arguments for the legalization of marijuana have more weight than the ones against. The state should therefore legalize marijuana, both the farming, to ensure the state reaps the benefit of revenues and to ensure the control of quality, as well as for personal use.