By Michael Gwarisa
Zimbabwe is experiencing a Drug and Substance abuse crisis. The drug epidemic is mainly affecting young people mostly males, even though the prevalence of females who use drugs is also rising. According to the 2022 Situation Assessment report of drug use in Zimbabwe, 58.47 percent of males use drugs in Zimbabwe, while females account for 40.59 percent.
One drug that has wreaked havoc in Zimbabwe is Crystal meth, a common name for crystal methamphetamine, a strong and highly addictive drug that affects the central nervous system. There is no legal use for the drug the world over. The illegal drug resembles shiny “rocks,” crystals, or fragments of glass of varying sizes and is both odorless and colorless. Since it is illegal in most parts of the world, it is manufactured in illegal laboratories often by combining ingredients derived from over-the-counter drugs with toxic substances, the drug can be smoked in pipes, snorted, injected, swallowed, or ingested rectally.
The drug is known to cause serious mental health illnesses such as anxiety, and in some cases, Psychosis and Schizophrenia. Methamphetamine can severely damage one’s mental health through a process called meth-induced psychosis. Meth psychosis can eventually lead to schizophrenia. In Zimbabwe, Official Psychiatric facilities admission statistics show that bed occupancy as a result of drug and substance abuse is hovering around 75 and 80 percent. The Zimbabwe Republic Police (ZRP) estimates that in 2022, 30 percent of youths in Zimbabwe were hooked on Crystal Methamphetamine.
Even though there are no official statistics as to how many people have died due to Crystal Meth or Guka use in Zimbabwe, deaths due to overdose of the drug in other parts of the world such as the United States of America nearly tripled between 2015 and 2019 among people aged 18 to 64.
From a legal point of view, once someone starts to use, administer, inject, or self-prescribe any drug or substance that is not allowed, that becomes drug and substance abuse. Alternatively, one could be using or taking a drug or substance that would have been prescribed by a doctor but then taking it beyond the prescribed dose. This also becomes drug and substance abuse.
Zimbabwe is however embroiled in a legal lacuna of elephantine proportions regarding convicting Crystal Methamephetime or Guka possession. Despite the overwhelming evidence of trade, use as well as the negative health effects Crystal Methamphetamine is having on users and society in general, a few convictions linked to crystal meth possession have been made in Zimbabwe to date. Drug and substance use in Zimbabwe is regulated through the Dangerous Drugs Act which categorises drugs according to Schedules. These include Dangerous drugs and Prohibited drugs. Dangerous drugs are those drugs pharmacies cannot dispense over the counter unless someone produces a prescription from a medical doctor. Prohibited drugs are those that are prohibited.
Speaking in interview with HealthTimes on the side-lines of an Editors Media Sensitisation workshop organised by the National AIDS Council (NAC), Mr Aleck Chimhofu, a renowned Legal Practitioner said convicting Crystal Meth possession in Zimbabwe at the moment was difficult as the drug is not listed as a Scheduled Drug in terms of the Dangerous Drugs Act in Zimbabwe.
For the past few months, there have been a push and hype around the subject of whether or not Crystal Meth should be penalised if one is found in possession, whether it’s a dangerous drug whether it’s a prohibited drug. The Criminal Code describes dangerous drugs as those drugs which fall into the category of dangerous or prohibited drugs category or should be scheduled drugs,” said Mr Chimhofu.
“If we get to the court now, we look at the schedule of the dangerous drugs act and if we do not find this drug, Methylenedioxymethamphetamine even if someone agrees to be in possession, there is no clear law to warrant a conviction regarding Crystal Meth as a drug.”
Section 70 of the Zimbabwean Constitution stipulates that one can only be convicted if the act committed was a crime at the time of the commission of the offense. If it is no longer or it was never an offense, then no conviction will take place.
The Constitution of Zimbabwe has several sections that speak to drug and substance abuse and Section 2 says anything that is done contrary to what is stipulated in the constitution is inconsistent and is as good as if it never happened. Section 70(1)(k) and (i) of Zimbabwe’s constitution stipulates that any person accused of an offense has the right not to be convicted of an act or omission that was not an offense when it took place or that is no longer an offense. Section 327 – International Treaties ratified by Parliament and Incorporated into our laws become binding and part of Zimbabwean Laws.
“Now this becomes an issue. The other statutes will fall on the basis that the Constitution becomes superior over all the other statutes. The evidence can be there, I can be in possession, and I can have the intention to sell and be in the business of selling Crystal Meth but where is the law? The foundation of this argument usually emanates from the defense. The lawyers who represent the other side, not those that represent the state,” said Mr Chimhofu.
He added that the Law should be clear and should be for everyone to know. The Dangerous Drugs Act of Zimbabwe lists Methylenedioxymethamphetamine which has been confused with crystal methylene- dioxymethamphetamine as a dangerous and prohibited drug. However, Crystal Meth in its form is not listed as a scheduled drug under the current law.
“If you look at Methylenedioxymethamphetamine and crystal methylene–dioxymethamphetamine, there is a common denominator here which comes through this Methylenedioxymethamphetamine despite that the other drug does not have the Crystal component."
He added that the state was currently caught in a catch-22 situation whereby they need to go the extra mile of taking the Crystal Meth to the laboratory just to extract the Methylenedioxymethamphetamine residue from the Crystals to prove that indeed the crystals contain Methylenedioxymethamphetamine residue. However, the process is cumbersome and has not yielded successful convictions of late.
“The Law should be clear and specific. The moment we start to argue and say let’s go to the laboratory that is not Law now, but rather justification. This is where we will then take and follow a collision path, the defense and state,” added Mr Chimhofu.
The Dangerous Drugs Act in Zimbabwe is responsible for controlling the importation, exportation, production, possession, sale, distribution and use of dangerous drugs; and to provide for matters incidental thereto. Popular Sections in this Act include Sections 14 (1) and (2). This section classifies what is terms Dangerous drugs under parts one and two, it then classifies what are called prohibited drugs. Section 14 A talks about the importation and exportation of dangerous Drugs. Section 155 of the Criminal Law Code defines dangerous drugs as any coca bush, coca leaf, raw opium or cannabis plant; prepared opium, prepared cannabis or cannabis resin or a scheduled drug. Scheduled drugs are those specific drugs classified under dangerous drugs and those listed under prohibited drugs and these include
In terms of the legal Framework for Drug and Substance Abuse in Zimbabwe, there are several laws and policies in place to regulate and manage the abuse of illegal drugs and substances in Zimbabwe. On top of the list of the primary legislation of Drug and Substance abuse in Zimbabwe is the 2013 Constitution as well as the Criminal Law Codification and Reform Act [Chapter 9:23] as amended, the Dangerous Drugs Act [Chapter 15:02], the Criminal Procedure and Evidence Act [Chapter 9:07], International Treaties and Conventions (Section 327 of the Constitution), Convention on Narcotic Drugs, 1961, Convention on Psychotropic Substances, 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs & Psychotropic Substances, 1988.
The Criminal Law Codification and Reform Act criminalises any act or omission in Zimbabwe primarily the Criminal Law Court. Section 157 (1) of the Criminal Law Codification and Reform ACT deals with the possession of dangerous drugs. According to the Law, any person who unlawfully acquires or possesses the dangerous drug or ingests or otherwise consumes a dangerous drug or cultivates, produces or manufactures for his own or consumption shall be guilty of unlawfully possessing or using a dangerous drug.
“This is the first step now, if we are to regulate the use or the illegal use or abuse of drugs in Zimbabwe, we go by Section 157 and everybody you will see arrested for either illegal possession of drugs, they will start by either Section 157 then you will get other complimentary statues. Section 9 deals with liability. A person can only be punished for a crime if it is defined by the court `or any other enactment. It’s either it’s listed in the Criminal Law Code. If you do not find it in the Criminal Law code, you should find it specifically mentioned of provided in any other enactment or statutes.”
Section 18 then places an obligation upon the prosecution to prove the commission of the offense beyond reasonable doubt. However, in most cases which go to court where the offenders are being charged with either possession, sale or consumption of dangerous drugs, the cases usually fail on the basis that the State would have failed to prove the commission of the offense beyond reasonable doubt.
“When we say a commission of the offense has to be established beyond reasonable doubt, we are saying if we go to trail, you are charging me for possession, but during the trial, judging by the evidence that would been presented, if there is a slight possibility that i could be innocent, or the prosecution could be wrong in their conclusion that I was caught in actual possession of the drug, if there is that slight possibility, what it means is the state has failed to prove their case beyond reasonable doubt. At that stage, I am then entitled to be acquitted. This is the standard of proof which is required in Criminal proceedings,” said Mr Chimhofu.
The rationale behind the requirement of proof beyond reasonable doubt is to explore all avenues in the case and avoid sending innocent people to jail. Section 161 lists the people who can possess, acquire and supply certain drugs even those scheduled as dangerous drugs and these include medical doctors, pharmacists, laboratory officers, people licenced by the Medicines and Allied Substance Control Act among other laws.
Meanwhile, the Criminal Procedure and Evidence Act is the first statute Zimbabwe has in the constitution. The Criminal Law Codification and Reform Act and the Dangerous Drugs Act are both known as substantive statutes. These make provision for substantive rights and remedies. The Criminal Procedure and Evidence Act is the gateway by which the criminal justice system is commenced. If one wants to secure a conviction for an offence that has been committed, but if it’s done in a manner which infringes the procedural rights that are given by the law in terms of the Criminal Procedure and Evidence Act, then the conviction is most likely going to be nullified.
Way Forward
According to Mr Chimhofu, Parliament has the power to change the law and ensure Crystal Meth is included under the dangerous drugs and prohibited drugs schedules.
