Drug policy reform in the Andean countries

By Ricardo Soberón Garrido*

Latin American countries have been receiving anti-drug policy models with open arms, policies based on a “war” that has been raging for close to 40 years now, with deplorable results. Throughout this war and in the spirit of cowboy movies, we have witnessed the appearance of emergency laws, elite police commandos, special courts, maximum security prisons, working groups and anti-drug czars. In the meanwhile the narco-traffickers evolve, continue to function and corrode our democracies.

Those most adversely affected by this war have been vulnerable social groups such as drug users (whether problematic or not), coca, heroin and cannabis producing peasants, whose crops have been eradicated or fumigated, not to mention law enforcement and the judiciary, forced to waste valuable resources and time in persecuting or even eradicating entire sectors of the population both urban and rural.

The greatest example of the failure of drug control policies is the corrections system, currently on the brink of disaster: over 1.7 billion people in Latin America have been deprived of their freedom; over 50% await sentencing and drug related crimes come in third place as main cause for detention and prison, among the nations most affected, are Brazil, Mexico and Argentina.

Oddly, there have been important changes in drug legislation this year in the Andean countries, and some reversals. Among the first, there is the notable example of the Bolivian government that has set into motion the rusty UN procedures to revise the current status of the coca bush.

Although the correlation of forces in the international scene is not at its most favorable for the Bolivian proposal, (the INCB, the WHO, the Commission on Narcotic Drugs, the UNDC, and the ECOSOC) we believe that it is important that we begin to correct the mistakes of the Peruvian and Bolivian governments that associated the coca leaf and the chewing of the coca leaf with addiction.

It is also essential to point out those articles of the 1961 Convention that have become obsolete, and to propose that the current prohibition against the use of the coca bush be withdrawn; which will not undermine balanced and realistic strategies to combat the drug trade. We understand that the Bolivian challenge now, after having included a constitutional clause on the cocaine bush, is to press congress to change the 1008 Narcotics Law.

Ecuador also poses an interesting case. Its newly instated article 364 of the 2008 Constitution was a great accomplishment, an article that states clearly that “addictions are a public health problem”, and that “under no circumstances will their criminalization be permitted, nor will constitutional rights be threatened.” Add to that the pardoning of “mules” (small drug sellers) -that freed 1500 people from jail for offenses judged to be of limited importance or gravity– and the possibility of promoting full-fledged legal reform, these are three important examples in a nation that exercises its sovereignty, that can count on political will and understands the need to overcome significant problems for law enforcement, the judicial and the prison system.

Regretfully, the governments of Colombia and Peru are an example of what not do in the field of drug policy. Averse to any reform that would enact more finely tuned regulations for drug offenses, both governments have moved towards criminalizing the possession of drugs for personal use and doing away altogether with established legal quantities for personal use. Happily, with respect to Colombia, President Álvaro Uribe’s proposal was gradually cut down and corrected in Congress. Thus bills instating sentencing for drugs offenses imposing therapy or jail terms were eliminated, although congress has yet to vote on a proposal that prohibits consumption.

As for Peru, the new minister of the interior Otavio Salazar recently launched a bold proposal to criminalize drug use although the 1991 Penal Code does not consider consumption a drug offense. This proposal was criticized by the media and pundits, and failed to garner support in congress. 20,000 people are detained yearly accused of drugs crimes in Peru, 12,000 of them for possession of drugs intended for personal consumption, they must be urgently freed.

The challenges that remain for the nations in the Andean region have to do with fostering open discussion and debate – in congress, in the press, in professional circles – on the convenience of adapting and correcting framework laws that impose prison sentences as a solution for the problems raised by the production, trade and the consumption of illegal substances. This is not a crusade for the ineptly named legalization, much to the contrary; the goal is to make penal legislation more effective, so that we can meet the challenges posed by organized crime squarely.

*The author is a researcher at the Centro de Investigación “Drogas y DD.HH” rsoberon@tni,.org

**In its original version Article 384 reads: “El Estado protege la coca originaria y ancestral como patrimonio cultural, recurso natural renovable de la biodiversidad de Bolivia y como factor de cohesión social; en su estado natural no es estupefaciente. La revalorización, producción, comercialización e industrialización se regirá mediante ley”.