In Legal Clutches! The “Wee” Farmer Versus The “Wee” Smoker; Who Goes Scot-free Under The New Narcotics Legal Regime In Ghana?

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INTRODUCTION


Following the introduction of cannabis in our part of the world, the subject of legalization has always been met with harsh criticisms due to the firm belief by many that the plant is responsible for most mental-health conditions plaguing the country – a connection which is still highly debatable. Nonetheless, draconian laws have regulated the use of cannabis in the country. These laws were so strict such that the simple use of cannabis could result in a prison term of five years or more under the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236).1

Despite these measures, the use of cannabis has been prevalent in the country. A report by the United Nations in 2014 listed Ghana as the number one cannabis consumer in the world; though in 2016 it dropped to the third position, it remained number one in Africa. Aside from the high consumption rate, the illegal cultivation of cannabis which is gradually replacing traditional crops on farms in the remote areas of the country continues to hinder progress in curtailing the widespread use of cannabis in the country. Seen as it is that the country was already failing to control the use of cannabis, arguments advocating for the decriminalization of the use of cannabis were strongly rebutted in the past until recently. After many efforts by advocates, a new narcotic control Act was enacted dubbed the Narcotics Control Commission Act, 2020 (Act 1019). Act 1019 sparked major excitement particularly amongst pro-cannabis advocates as it recognized the production and use of cannabis in the country.

Nonetheless, many Ghanaians seem to have misconstrued the basis for which Act 1019 was passed as many interpret the legalization of cannabis as the limitless use and cultivation of the plant. However, this assertion by Ghanaians especially pro-cannabis advocates seems to contradict the provisions of Act 1019. On this basis, this article seeks to examine the scope of the provisions of the Narcotics Control Commission Act 2020 (Act 1019) as far as the legalization of cannabis is concerned, the right to cultivate cannabis, and the right to smoke cannabis in Ghana.


THE CANNABIS PLANT


Cannabis is a genus of flowering plants in the family Cannabaceae. It has different varieties but the most common are the Cannabis sativa and Cannabis indica. Each is characterized by the difference in their Tetrahydrocannabinol (THC) and Cannabidiol (CBD) contents. The Cannabis sativa which grows in hotter climates like Africa, Central America, and Southeast Asia is very high in THC content. The THC content is primarily responsible for the psychoactive effect of cannabis, specifically the feeling of being ‘high’ and produces an energizing and anxiety-reducing effect, as well as enhancing productivity and creativity. It is the predominant variety in Ghana which is locally refer to as wee, ganja, bonsam tawa or marijuana. Cannabis indica, on the other hand, has a higher CBD content as opposed to a lower THC content. It produces a more calming and relaxing effect when ingested.

It is responsible for the majority of the medicinal properties of cannabis. Though THC plays some medicinal role aside from its predominantly psychoactive physical effects, much of the medicinal attributes of cannabis are credited to the CBD content. As such, the varieties legalized for medicinal use in other countries like Canada and Europe are hybrids or crossbreeds of the C. sativa and C. indica which have a lower THC content of not more than 0.3% by dry weight of the plant and a higher CBD content. It must be noted that a THC content not exceeding 0.3% does not get users high. These factors were considered in the legalization process in Ghana.


SCOPE OF THE NARCOTICS CONTROL COMMISSION ACT, 2020 (ACT 1019) AND NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTIONS) ACT, 1990 (P.N.D.C.L. 236) ABOUT CANNABIS


Before the Narcotics Control Commission Act, 2020 (Act 1019), the Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (P.N.D.C.L. 236) had a blanket prohibition on the importation, exportation, cultivation, and possession of any narcotic drugs or plants for narcotic purposes. The exceptions, classified as “Part II-Class A Drugs”, are narcotics listed as medicinal narcotic drugs by the Food and Drugs Authority which Pharmaceutical companies are by law licensed to import or export,2 and for medicinal use strictly under the prescription of a medical practitioner. Cannabis was never considered as one of the medicinal narcotic drug products, and was thus not on this list, probably due to the absence of any, or sufficient, scientific data on its medicinal usefulness, while its psychotic effects (the feeling of being “high”) had continually been highlighted and linked to innumerable vices.

But with the passage of Act 1019, a special provision for cannabis was included in the Act which recognized its industrial and medicinal purposes. Section 43 of Act 1019, titled ‘Special provisions relating to cannabis’ states that “…the Minister, on the recommendation of the Commission, may grant a licence for the cultivation of cannabis which has not more than 0.3% THC content on a dry weight basis for industrial purposes for obtaining fibre or seed or for medicinal purposes.” From the provision, the use of cannabis is still, to a large extent, very strictly controlled as opposed to the media frenzy suggesting a limitless use of the plant. Particularly, as the law remains that cannabis has not been legalized for recreational use or, as it were, for ‘smoking at will’. Subsection 2 of Section 43 of the Act makes this clear in the following terms, that: “For the avoidance of doubt, a licence granted under subsection (1) shall not be for the cultivation of cannabis for recreational use.” These conditions and limitations placed on eligibility for a licence to cultivate cannabis are grounded in the policy rationale for the ‘legalization’ which is for medicinal and industrial purposes.

RIGHT OF THE CANNABIS OR “WEE” FARMER


The Narcotics Control Commission Act, 2020 (Act 1019) indicates from section 43 that any person can engage in cannabis cultivation provided he or she has a license from the Narcotics Control Commission(NCC) by proving that his farm produce will be for industrial and medicinal purposes. Additionally, the farmer must cultivate cannabis plants with a THC content not more than 0.3% at the time of cultivation. Per the above, there is the legal right to engage in cannabis cultivation, the very reason for which the wee farmer is unlikely to face legal problems. However, without proof of permit or license from the licensing authority, it shall be considered illegal as indicated in Section 39 of the Act which states: “A person shall not, without lawful authority proof of which lies on that person, own, cultivate, grow or harvest a plant that can be used or consumed as a narcotic drug or plant, or from which a narcotic drug can be extracted or processed.” Thus the NCC with its current authority has the right to destroy cannabis farms without a permit even if they are plants with the approved THC levels. It was on this premise 67 acres of cannabis plants were destroyed in Boso in the Eastern Region after the legalization of cannabis cultivation.3 Additionally, farmers with license but growing cannabis without the approved THC content will equally be prosecuted. Nonetheless, there are more opportunities for wee farmers when the various facets of the legal framework are established. The Commission is working on a Legislative Instrument on these special provisions so prospective individual cannabis farmers can take advantage of this period to position themselves financially to invest in the sector which is almost certain to flourish commercially as the legal mandate has been granted.

RIGHT OF THE CANNABIS OR “WEE” SMOKER


Contrary to public perception, Act 1019 did not legalize the recreational use of cannabis as highlighted in Subsection 2 of Section 43. This means that aside from the medicinal and industrial use of cannabis, any other use is prohibited. Incidentally, the majority of cannabis consumers fall within the recreational boundaries where they either smoke cannabis or cannabis products for the high. Consequently, these smokers shall be prosecuted and punished accordingly. More so, people who engage in the use of cannabis whether by sniffing, injection, or any other form for recreational purposes are equally liable for criminal prosecution. The same applies to Rastafarians and other similar groups who claim to smoke cannabis for religious reasons unless they can prove it is for medicinal purposes.

Remarkably, there are almost no records of people who use cannabis for medicinal purposes currently as it was never permitted under P.N.D.C.L. 236. Furthermore, wee smokers must ensure that the cannabis they are smoking has a THC content of not more than 0.3% for their good. The wee smoker is saddled with this responsibility because if he or she is to be found with cannabis containing a higher THC content they shall be facing the repercussion regardless of their license. Consequently, recreational or religious smoking is not permitted under the Act. Hence, wee smokers who seem to be enthusiastic about the enactment of Act 1019 must rethink their stance as the Act clearly does not indulge them and are likely to face more criminal charges.

All offences involving the unlawful possession of narcotic drugs still subsist and judicial decisions pronouncing on them remain good law. A person would be found criminally liable if found in possession of cannabis without having the legal authority to so possess it.4 The burden would be on such a person to prove that he has the authority to possess it by reason of having a licence from the Commission to cultivate it or possessing it to smoke it under medical prescription or, to prove, rather more onerously, that the person did not know that the substance in his possession was cannabis.5

CONCLUSION


The legalization of cannabis does not in any way seek to promote smoking, rather to promote its industrial and medicinal use and in so doing create a new revenue stream for the government in terms of taxing from cultivation and exportation. Evidently, both the wee farmer and the wee smoker stand to face some legal constraints. However for the wee farmer, if he or she is able to meet all the requirements of the law he or she would be free to engage in the cultivation, export, and sale of cannabis under Act 1019.

The Act puts a ban on the recreational use of cannabis, thus the smoker for whatsoever reason cannot engage in the use of cannabis for the high or else faces severe legal consequences unless it falls within the tenets of medicinal use. Thus, in legal clutches, the wee farmer is likely to go scot-free as opposed to the wee smoker who may face jail even after the legalization of cannabis. Either way, Ghana’s rationale for legalizing Cannabis, within the limits provided in the Act, factors in the national health and drug policies of the country, and it is going to create businesses and legitimate products which can be taxed to generate revenue which is typical of a society that is rapidly liberalizing and more scientifically-oriented.

REFERENCES

  1. Section 5(3), Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (P.N.D.L. 236)
  2. Section 1, Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (P.N.D.L. 236); Section 126 of The Public Health Act 2012, (Act 851). Act 851 is still in force.
  3. Lawrence Markwei, “Ghana: It’s Illegal to Cultivate Cannabis in Ghana Without Licence – Narcotic Control Commission”, August 27, 2020, https://allafrica.com/stories/202008280441.html (accessed November 15, 2020)
  4. GEORGE BONSU @ BENJILLO VS. REPUBLIC [1999] DLSC6409; KEVIN DINSDALE GORMAN, MOHAMMED IBRAHIM KAMIL AND SVEN LEONARD HERB (APPELLANTS) VS. THE REPUBLIC [2009] DLCA7784;
  5. NYAMENEBA & OTHERS V THE STATE [1965]DLSC1835

BY DENNIS ADJEI DWOMOH, LLB, LLM, QCL
KOFI AGYENA AGYEMAN, BPHARM(HONS), LLB, QCL

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