Internationally, Colombia has forged ahead with its agenda of drug policy change, openly criticising the UN’s drug control regime while condemning the damage that decades of prohibition have caused to its own people and ecosystems. However, the country must also focus its attention internally to ensure that its hard-earned successes are not undone by future policy-makers. It is within this spirit that research and advocacy organisation Dejusticia has published a report explaining how the nation can change its constitution to enable drug regulation.
Mostly through multiple Supreme Court rulings, Colombia has had drug decriminalisation in place for over 30 years. However, these piecemeal rulings have severely complicated the legal landscape: it remains unclear what quantities of cannabis are allowed for possession, and questions remain around the legality of production, distribution, and social sharing of substances.
Towards the end of 2023, Colombia had a series of public debates to discuss modifying article 49 of its constitution – which prohibits the possession and consumption of psychoactive substances – in order to create a regulated cannabis market. After eight intense and highly mediatised rounds of discussion, the vote failed to pass, narrowly missing the numbers needed to create a constitutional path for reform.
Dejusticia’s latest report “The Constitutional Blocks of Drug Market Regulation in Colombia” provides a timeline of all the relevant constitutional amendments and Supreme Court rulings, highlighting five potential paths forward for the legal regulation of any drug market. It is technical yet informative, designed to address questions from lawyers, regulators and policy-makers who fail to see a path towards greater control over drug markets, including cannabis.
“Two of these scenarios are unsafe from a legal perspective – as the next government could undo them – but the other three, where the constitution is reformed, there is legal access through social club exemptions, or access to self-cultivation, are much more realistic,” Isabel Pereira, Luis Felipe Cruz and Sergio Pérez, authors of the report, told TalkingDrugs.
After resolving the constitutional issues around regulation, Dejusticia proposes a model of regulation with five key principles, where it:
- Reduces people’s participation in the illegal cannabis market, and in organised crime;
- Promotes public health interventions, including strategies of prevention and harm reduction;
- Encourages reparations, with a specific focus on rural development and fair market standards for farmers and traditional cultivators;
- Enshrines the rights of the people and communities most impacted by decades of prohibition and a violent drug war;
- Creates a judicially secure system of regulation.
The devil is in the (constitutional) details
The report highlights that constitutional reform is needed to open and regulate the market of any psychoactive substance. While a market could be created through laws, it would be legally inefficient or vulnerable to constitutional challenges.
Dejusticia’s work emphasises that a judicially weak system of regulation could be just as disastrous to people’s drug-related rights as they are under a system of prohibition. As stated in their report: “faced with weak or judicially unstable regulation, historical cultivators or producers could see themselves locked out of legal markets”, which in turn would erode people’s trust in the legal market. Colombian citizens’ right to drug use as part of bodily autonomy could also be erased through future constitutional rulings, unless enshrined through legislation.
Avenue for social clubs
Dejusticia’s report underscores that constitutional reform is absolutely necessary to create a legal, for-profit industry for any psychoactive substance. However, they outline that such reforms should be minimalist and not drug-specific; the constitution should ideally be amended to eliminate the prohibition of the possession and consumption of all psychoactive substances, preserving people’s rights to health if they do consume them.
A model possible within the existing constitution is cannabis social clubs: spaces that enable non-profit private cultivation, consumption and sharing of cannabis. There is some precedent from Supreme Court rulings that protects the social sharing of cannabis, and the existing drug law allows for home cultivation of up to 20 plants of cannabis. Dejusticia highlights how social clubs are already constitutionally sound and could fit within their five principles for a fair and just regulated market.
“Prohibition has failed”
Ultimately, Dejusticia argues that the current system of prohibition, while intended to protect public health, has failed.
Pereira, Cruz and Pérez write in the report: “It’s necessary to adopt, through consensus and the constitution, the idea that regulation, unlike prohibition, is the ideal form to protect public health, security and human rights, while also promoting development and judicial security.”
“Colombia has a complex history with the war on drugs and its impacts. This is reflected in its legal landscape, with several tensions,” Pérez told TalkingDrugs.
“If we want to unmake and repair the damages caused by prohibition, we must do it well. We need a constitutional reform to regulate drug markets. Otherwise, we will face legal uncertainties that could compromise our conquests and progress. Our purpose is to ensure that changes in Colombia’s drug policy have a real and lasting impact,” he added.
While there is much work left to do to keep impacted communities safe from drug war violence, laying out the potential avenues for fairer and more equitable drug markets can help convince those who are unsure about the path to reform and radical change.
The report is available here.
