INCONSISTENCIES IN THE LAW ON INDIAN HEMP IN NIGERIA VIZ A VIS THE SUPREMACY OF THE CONSTITUTION – IBRAHIM MOHAMMED MAJIDADI ESQ
INTRODUCTION
The Indian Hemp Act was passed into law in 1966 to prosecute cases relating to Cannabis cultivation, use, importation, exportation, and sale of Indian Hemp (Genus cannabis). Under the Act, no specific security agency was vested with the responsibility of Prosecuting the offences therein, so the Police basically have powers in handling such matters. The Act vested jurisdiction for prosecuting the offences with the Magistrate and High court, and also prescribed punishments for those offences as opposed to the Nigeria 1999 Constitution[CFRN] and the National Drug Law Enforcement Agency [NDLEA] Act which confers Jurisdiction on the Federal High Court [FHC] and also Makes NDLEA the prosecutorial Agency for such offences respectively.
This article highlights the areas in the Indian Hemp Act which are in conflict with the Nigerian Constitution which is the Supreme Law of the Land and also goes contrary to the NDLEA act which both are latter enactments.
THE INDIAN HEMP ACT, 1966
The Indian Hemp Act makes the planting, cultivation, importation, exportation, smoking or unlawful possession of Indian hemp, possession of utensils for use in smoking Indian Hemp and use of premises for sales and smoking of Indian Hemp an offence in NIgeria. Section 1 of the Act defines Indian Hemp as “any plant or part of a plant of the ‘genus cannabis’
By virtue of section 8 of the Act, the Magistrate Court is empowered to try offences under sections 4-7 of the Act. Section 8(1) provides:
“Every magistrate in any part of Nigeria shall, notwithstanding anything contained in any enactment, have jurisdiction for the summary trial of any offence under section 4 to 7 of this Act and may impose the punishment provided by this Act for such offence.”
The Act in Sections 2(2) and 3(2) also confer on the High Court the jurisdiction to try offences under Sections 2 and 3 of the Act which relates to planting and cultivation, and unlawful importation or sale of Indian Hemp respectively. Section 2[2] read thus:
“A person charged with an offence under this section shall be tried summarily by a single judge of the High Court within whose jurisdiction the offence was committed”
Section 3 of the act which criminalises Unlawful importation or sale of Indian Hemp under section 3 [2] provides thus;
“A person charged with an offence under this section shall be tried summarily by a single judge of the High Court within whose jurisdiction the offence was committed”
THE NATIONAL DRUG LAW ENFORCEMENT AGENCY (NDLEA) ACT
The NDLEA Act establishes the National Drug and Law Enforcement Agency whose role is to enforce laws against the cultivation, processing, sale, trafficking and use of hard drugs and to empower the agency to investigate persons suspected to have dealings in drugs, and other related matters.
Under the Act, drugs include cocaine, heroine, opium, opium poppy, cannabis plant, coca bush, LSD, narcotics and other psychotropic substances. By virtue of section 26 of the Act, it is the FHC that has jurisdiction to try offences under the Act.
SIMILARITIES IN THE PROVISIONS OF THE INDIAN HEMP ACT AND THE NDLEA ACT
- Planting or cultivating Indian hemp (genus cannabis)- section 2 of the Indian Hemp Act has the same effect with the provisions of section 11[a] of the NDLEA Act which also criminalises planting of similar drugs which Cannabis falls under as held in Ochala V F.R.N [2016] 17 NWLR 226 S.C
- Unlawful importation or sale of Indian hemp: Section 3 of the Indian Hemp Act has the same effect in part with section 11 [a]of the NDLEA act as they both border on importation of Indian Hemp.
- Exportation of Indian hemp: Section 4 of the Indian Hemp Act, prohibits the exportation of cannabis, an offence similar to what is contained in part under Section 11[b] of the NDLEA Act
- Smoking or unlawful possession of Indian hemp: Section 5 of the Indian Hemp Act uses the word “smoking”, whereas under the NDLEA Act the word ‘smoking ’ was not expressly used, however, it can also be construed to also have the same meaning as ‘úses’ (i.e. the implied usage) which is also used in the construction of section 11 [d] of the NDLEA Act. Thus a combined reading of the two sections highlighted above from the two Acts shows a duplication of contemplated elements of the offence envisaged.
- Possession of utensils for use in smoking Indian hemp-Section 6 of the Indian Hemp Act criminalises possession of utensils used in smoking cannabis, even though no exact offence with same wordings exist under the NDLEA Act. However, Section 12 of the NDLEA Act contemplates the possibility of a suspect who volunteers their premises for the purpose of “… storing, concealing, processing or dealing…’ as being an offence liable to be prosecuted. This position in this writer’s humble opinion will give almost the same effect as section 6 of the Indian Hemp Act as Storing and concealing requires Utensils and infrastructure”.
- Use of premises for sales, smoking, etc., of Indian hemp: Section 7 of the Indian Hemp Act criminalizes use of premises for smoking and sales etc of Indian Hemp which is also the same offence as the one in Section 12 of the NDLEA Act.
- Forfeiture under section 12: This provides for the forfeiture of articles of a person convicted under the Act, this provision is similar to the provisions of section 27 of the NDLEA Act which also provides for forfeiture of asset, properties and instrumentalities of a convict to the Federal Government of Nigeria.
FUNDAMENTAL INCONSISTENCIES OF THE INDIAN HEMP ACT WITH THE NIGERIAN CONSTITUTION
It is clear from the above analysis that the provisions of the Indian Hemp Act conflicts with the provisions of the NDLEA Act and the Constitution, all of which are in pari materia in the area of which one of the courts holds exclusive jurisdiction to try offences stated within the respective laws.
Further conflict arises on the power to prosecute criminal matters relating to Infractions on possession, usage, export and sale of Cannabis and all related matters. Section 8(1) of the Indian Hemp Act confers jurisdiction on the Magistrate Court which contradicts the provisions of section 251 of the CFRN which further confers exclusive jurisdiction to try such offences and pronounce punishments on the Federal High Court. Section 251(1)(m) of the Constitution provides:
“251. Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any court in civil causes and matters-
(m) drugs and poisons”
Section 251 (3) of the Constitution further provides that the Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section.
In agreement, Section 26 (1) and (2) of the NDLEA Act further provides for the powers of the FHC to try offences under the Act.
“26(1) The Federal High Court shall have exclusive jurisdiction to try offenders under this Act.
(2)The Federal High Court shall have power to impose the penalties provided for in this Act’’
By virtue of Section 4 of the 1999 Nigerian Constitution, the National Assembly is empowered to make laws for the Federation of Nigeria. In view of this, the National Assembly passed the National Drug Law Enforcement Agency Act 1989 which established the National Drug Law Enforcement Agency in 1990 and vested in the agency among other things the sole power to prosecute illicit drug trafficking, use, sale, and possession. Despite its clear mandate, the Provisions of the Agency’s enabling act still co-exists with the provisions of the Indian Hemp Act, as the latter is still much alive under our laws and has not been repealed.
Fate of the Indian Hemp Act
The National Assembly in exercise of its Powers under section 251 [3] of the 1999 Constitution which vests upon the Federal High Court Exclusive jurisdiction in respect of Criminal matters relating to Drugs and poisons, has had this position strengthened by the Supreme Court in the Case of Mohammed v F.R.N[2018] 13 [NWLR] 229 S.C where it said;
“… the Constitution has made clear and copious provisions in allotting jurisdiction to the Federal High Court over Criminal Causes and matters touching on Indian Hemp. Thus the Federal High Court traces the Statutory paternity of its jurisdiction over Indian Hemp offences, allocated to it by section 26[1] of the National Drug Law Enforcement Agency Act to the Constitution.”
The Supreme Court in Ochala [Supra] held thus:
“the Constitution of the Federal Republic of Nigeria 1999 contains items in the exclusive legislative list in which only the Federal Government of Nigeria can legislate. These include Drugs and poisons listed in item 21. The Magistrates Courts that are under the powers of the state Governments cannot exercise or assume jurisdiction over those subjects in the exclusive legislative list and so their jurisdiction would be limited to matters within the state government legislations”.
It is evident from the foregoing that Magistrate Courts lack the jurisdictional power and mandate to try any offence that relates to illicit drugs either in its usage, sale, importation, possession, exportation or importation etc.
While it is glaringly clear as the sun that the Indian Hemp Act goes against the spirit and letters of the 1999 Nigeria Constitution as amended and the NDLEA Act, it still has not been repealed from our laws, despite the 1999 CFRN and NDLEA Act being of a latter period of enactment. It is trite in the Nigerian legal system that the Constitution is supreme and any other laws that are inconsistent with its provisions is void. The supremacy of the Constitution is encapsulated in Section 1(1)&(3) of the CFRN 1999, as amended. Section 1 (1) provides:
“This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”
Section 1(3) of the CFRN renders null and void the provisions of any other laws that are inconsistent with the provisions of the Constitution. The subsection states thus;
“If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The Nigerian Courts, in plethora of cases have amplified the supremacy of the Constitution as held in cases like Mohammed V F.R.N [Supra] where it was held that
“The Constitution is the Grundnorm and fundamental law of the law. It is supreme and prevails over any other legislation enacted by the National Assembly or any state house of assembly. Section 1[3] of the constitution provides that if any other law is inconsistent with the provision of the constitution, the constitution shall prevail and that other law, to the extent of the inconsistency, shall be void.”
Despite numerous pronouncements by our courts that Magistrate courts no longer have such jurisdiction to summarily try offences relating to selling, dealing in or with Indian hemp as held in cases like Okewu v F.R.N. [2012]9 [1305] 327 and Ochala V F.R.N [2013] LPELR 21386, drug issues are still prosecuted in Magistrate and shariah Courts by Police and other state prosecutors.
It is clear from the authorities cited that the constitution is supreme and any law that goes against the spirit and wordings of the CFRN is null and void to the extent of its inconsistency and based on that, the provisions of the Indian Hemp act are null and void..
CONCLUSION/RECOMMENDATIONS:
- The National assembly should repeal the Indian Hemp Act as sections 2-8 of the Act is in conflict with the NDLEA ACT and section 251 of the 1999 CFRN. The aim is to ensure that there is a uniform law on drugs and other related matters and the same court to try the same in line with the spirit of the Constitution which is the supreme law of the land. Currently there are two laws that criminalise use, storing, planting, cultivating, importing, exporting and other Illegal matters related to Cannabis in Nigeria but these two Acts confer jurisdictions on three different Courts to try the same and similar offences and also prescribes different punishments for the same offences. This may pose a jurisdictional problem and act as an obstacle to our Criminal justice System as it relates to prosecution of drug related cases.
- Stakeholders in the administration of criminal justice should engage in advocacy and campaign to enlighten the populace and actors involved in the administration of criminal justice about the oddity of the Indian Hemp Act because it prescribed different punishments for the same offences and also confers jurisdiction on court as against the provisions of the Constitution.
- Lawyers should endeavour to look out for this and raise this issue whenever they are appearing in inferior courts and they come across cases of this nature being tried and our Courts should make clear pronouncements on this issue to avoid and clear ambiguity.
- The General Public especially non-Lawyers, who most of the time are victims of abuse and forum shopping by some prosecutors, should have it at the back of their minds that any offence that relates to Cannabis [Indian Hemp] locally known as Igbo, Wiwi, Weed etc, the proper court to try such is the Federal High Court as most times Lawyers are not in matters like this and Suspects tend to be convicted under the Indian Hemp Act.
Ibrahim M. Majidadi Esq. is a Senior Associate at Path Solicitors Abuja and also a Member of the Legal Advocacy and Response to Drugs Initiative [LARDI]
REFERENCES
1999 Nigerian Constitution as Amended 2011
Indian Hemp Act Cap c14 LFN 2004
National Drug Law Enforcement Agency Act CAP N30 LFN 2004
Okewu v F.R.N. [2012]9 [1305] 327
Mohammed v F.R.N [2018] 13 [NWLR] 229 S.C
Ochala V F.R.N [2016] 17 NWLR 226 S.C/ [2013] LPELR 21386
