Uganda, compared to its neighbouring countries, continues to have a harsh enforcement of drug prohibition. That is why news broke two weeks ago that the Controlled Substances Act was nullified, it reverberated across the international community.
This surprising decision came out after news in early May about a petition filed in 2017 by Wakiso Miraa Growers and Dealers Association Limited, a group of miraa (khat) Ugandan cultivators. This petition sought to repeal the Narcotic Drugs and Psychotropic Substances Control Act of 2016, challenging that there had been a lack of quorum by Parliament during its passing, meaning that there had not been enough parliamentarians present during its vote to qualify as a constitutional decision.
Understandably, the news that a Drug Control Act had been repealed led to pre-emptive celebrations from some, claiming that the drugs it controlled were now, somehow, legal. But the Judiciary Court quickly clarified, “the substances previously restricted under the National Drug Policy and Authority Act [2016] remain restricted… For now, it should be known that the Constitutional Court did not and has never legalised the use of the restricted drugs and/or substances under the impugned law.”
This is because the National Drug Policy and Authority Act of 1993 still remains in place; and while it is an antiquated document – still referring to cannabis as “Indian hemp” – that mostly served to implement the UN’s international control schedules in Uganda, it still prohibited the consumption, sale and production of controlled substances.
TalkingDrugs contacted Isaac Ssemakadde, a human rights lawyer that represented Wakiso, to understand the story behind the nullification, and what this means for drug control in Uganda. Behind the cannabis-focused headlines laid an incredulous story of political mishaps, erroneous enforcement of khat’s criminalisation, and the unjust arrest of hundreds of people using, growing and selling this plant across Uganda.
Khat creeps into legislation
Khat, ancestrally consumed in the Horn of Africa and the Middle East, has a long history of use, dating back almost eight centuries. It contains alkaloid cathinones, which are mild stimulants consumed mostly by chewing the plant’s leaves.
Although difficult to track the history of khat’s use in Uganda, some Western sources track its cultivation to the 1930s due to Ugandan interactions with Yemeni, Kenyan and Somali khat consumers. Efforts by then-President Yoweri Museveni to criminalise khat in the 1980s were stalled due to opposition from khat cultivators whose livelihood depended on its trade. Financially, the crop remains vital, as it grows year-round and can be intercropped with other produce, also serving as feed for poultry.
Interestingly, and crucial to Wakiso’s legal case, khat was never actually banned in Uganda. The 1993 Act generically banned “plants yielding narcotics”, explicitly outlawing Indian hemp (cannabis) and opium by name, with no mentions of khat or any of its psychoactive components.
Parliamentary debates during the discussion of the 2016 bill also highlighted some disagreement between parliamentarians on how to deal with it. On the 18th and 19th of November 2014, discussions about khat showed widespread opinions on its role in society: many saw it as a needed cash crop for exports, others as merely a vegetable; but some saw it as a danger to society, causing “rape, domestic violence etc.” as one member of Parliament put it.
It was agreed then that khat’s ban would be postponed, with the Minister of Internal Affairs given the responsibility to decide when its ban should commence. Until this decision was taken, there would be a grace period where no one would be arrested for its consumption, production or exportation. The November meeting concluded with MPs voting to agree on the bill.
What Ssemakadde and his khat cultivating clients would later uncover was that the vote in November was not only unconstitutional (not enough parliamentarians were present to establish quorum), but the decision to ban khat was never taken by the Minister of Internal Affairs. It was essentially a legal drug.
And while it may seem like a simple procedural omission, this mistake has led to the unfair imprisonment of hundreds of khat users and growers, some for sentences as long as 10 years.
The khat is out of the bag
Ssemakadde and Wakiso’s legal action in 2017 against the Ugandan government for their unfair persecution of khat growers forced a Government-wide, albeit incredibly slow, recognition of their mistake. Only when the Director of Public Prosecution (DPP) issued a statutory letter in 2018, conceding that they were not aware that khat had never been banned, did the wheels begin turning in Ssemakadde and Wakiso’s favour.
The lack of quorum, jointly with the DPP’s letter, meant that Wakiso’s petition to nullify the 2016 Act had a lot of legal backing. Surprisingly, the Ugandan Judiciary Court agreed with them.
Its nullification creates a fresh opportunity to protect those involved with khat, but also usher in a new era of drug control, hopefully one that does not perpetuate any further injustices.
“We have pierced the thick veil of taboo, myth and prejudice, for khat and cannabis, and everything else under restriction. We have turned the tables. The government must now start a fresh conversation. This verdict has sown the seed of hope and enlightenment in the people, now that they’re aware that the conversation around decriminalisation can go on,” Ssemakadde told TalkingDrugs.
However, many remain wrongly imprisoned across the country. There is no publicly available data on the number of people incarcerated for khat in Uganda; Ssemakadde shared that he was contacted during the trial by an anonymous source that knew of at least 210 people arrested in Northwestern Uganda for khat. Most will not be aware that they have been unfairly imprisoned; even less will know to reach out for legal aid to challenge their sentence.
“We are living under a military junta that has corrupted the rule of law. The government does not dispense justice, it dispenses injustice. This is clear, you just need to spend a day in court,” he added.
With the Act nullified, Ssemakadde will continue to advocate for khat growers across the country:
“Fighting stigma, myth and taboo is now my challenge. We are designing a programme of mass awareness to fight long held myths, stigma and taboo against khat. Why is our system of drug regulation so draconian, compared to South Africa, Kenya, and elsewhere? The Government now needs to answer these questions.”
And while a new drug control bill is rapidly being drafted to plug this legislative hole, Wakiso, on behalf of the khat community, have issued a request to Government: take your time to understand how to regulate khat; consult with the community when developing new legislation; and keep khat out of any future drug criminalisation efforts, as they have proven its medicinal, economic and cultural worth.
