CHAPTER TWO

2.0       HISTORICAL DEVELOPMENT OF THE LAW REGULATING NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES IN NIGERIA, AND CONCEPT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, DEFINITIONS AND CLARIFICATION OF KEY TERMS.

2.1       Introduction

This chapter provides a historical development of the law regulating narcotic drugs and psychotropic substances in Nigeria and conceptual clarification of some key terms and concepts used in this study. These include terms and concepts such as International law, Nigerian law, Narcotic drugs, Psychotropic substances, Prevention, Control, etc. Unless where the context suggests otherwise, the meaning of each term or phrase used in this research shall assume the meaning ascribed to them in this chapter.

2.2       Historical Development of the Law Regulating Narcotic Drugs and Psychotropic Substances in Nigeria.

In the era before the establishment of the League of Nations (i.e., pre-1945), individual nation states took unilateral effort aimed at curtailing the ill effects of drug abuse.  The most important example of a unilateral effort by an individual nation state was the case of Imperial China. In 1796 the authorities of Imperial China (as it then was) promulgated a law prohibiting trade in Opium within its territorial jurisdiction[1].

Following this, in 1839, the Chinese authorities seized and destroyed a large stock of Opium brought into China by American and British merchants[2]. This was done to enforce the ban placed earlier by the Chinese authorities. Consequently, the British colonial regime in the Indian sub-continent declared war on China in 1840[3]. The war declared by Britain was supposedly justified upon the lawful presumption that the conduct of the Chinese authorities was hostile, unfriendly and a pretext to suppress the lucrative Opium trade engaged by European merchants without due and proper warning[4]. This armed confrontation, later known as the Opium War, ended in 1842 with Imperial China losing to Britain. Part of the terms of surrender was the handing over of Hong Kong to Britain in perpetuity, while Opium trade within mainland China remained illegal[5]. Although this event was tragic, it laid the foundation for the evolution and development of international law action in the area of global drug use regulation as it prompted the first ever, international conference to discuss international trade in opium[6]. Thirteen nations participated in the conference, paving the way for the introduction of the first international treaty (The Shanghai Conference of 1908) in modern history aimed at preventing and controlling drugs, which are considered harmful and declared as illicit drugs[7]. This treaty was later concluded in Hague, the Netherlands. The objective of this treaty was to prevent international trade in narcotic drugs of plant origin, notably Opium[8] by all signatory members. This marks the end of the pre-league of nations era.

During the League of Nations period, international law regulation was extended to cover more drugs, which are considered harmful to individuals and the society. A total number of three conventions and one agreement were adopted on prevention and control of illicit drugs[9]. The first convention during this period was concluded in 192591. This Convention aimed at introducing a system of import certificates and export authorizations for international trade in opium, coca bush and Indian hemp. The convention also introduced a statistical control system and established a permanent central board to supervise the statistical control system. This effort was to a large extent successful. Certificates authorizing export of drugs under international control such as the ones mentioned above were issued on good cause, usually on medical grounds and for scientific research. While data collected on the flow or movement of narcotic producing plants provided a reference point on who was involved, when imports were made, what narcotic plants or drug was involved and where the drugs came from or going to. 

The second international convention on narcotic drugs occurred in 193192. It was aimed at limiting the manufacturing and regulating the distribution of narcotic drugs. This convention therefore introduced a compulsory estimate system and it limited the world production of opium, coca bush and Indian hemp to what was needed for medical care and scientific pursuits. A drug supervising body was established to monitor the estimate system. Yet again in 1931, another International Agreement on the Control of Opium Abuse in the Far East was concluded in Bangkok, Thailand93. This Agreement introduced measures such as enhanced policing and law enforcement capabilities for preventing and controlling the smoking of Opium. By 1936, the third International Convention on Narcotic Drugs was concluded with a view to suppress the illicit traffic in dangerous drugs, i.e., those drugs that are seen to cause serious health hazards94. This convention was additionally backed by severe legal penalties such as extended prison sentence for illicit traffic in illicit drugs which were mainly of narcotic plant origin.

91   The International Convention on Narcotic Drugs of 1925.

92   0p. cit.

93   Ibid.

94   The International Convention on Narcotic Drugs of 1936.

The post League of Nations period, which started in 1946 and continues on till today[10] saw the formal transfer of functions carried out initially by the League of Nations, to the jurisdiction of the newly formed United Nations[11]. The United Nations (or U.N) also acquired the authority to control and regulate international drug activities[12] there under. Up till the formation of the United Nations, all international efforts aimed at preventing and controlling harmful drugs were generally restricted to drugs of narcotic plants origin. However, in 1948 the first U.N. Protocol On Illicit Drugs which exceeded those drugs of narcotic plant origin to include synthetic drugs was concluded.[13]This Protocol considered as illegal, those synthetic and semi-synthetic narcotic analgesics, which are not previously subject to international control.

In 1953, a U.N. Protocol On Illicit Drugs limited the continued production of Opium to countries considered to be original producers.[14] This makes it illegal under international law for any cultivation to occur in any other place. In 1958, members of the U.N. expressed the desire to codify all previous existing international law efforts aimed at prevention and control of harmful drugs[15]. In 1961, the U.N adopted a convention on drugs, which was a realization of the desire, 3 years earlier (1959) by the international community101, to address global illicit drugs activities.  This convention introduced a number of changes on measures and methods on preventing and controlling harmful drugs through the avenue of international law. These measures include establishing a Commission on Narcotic Drugs as one of the Commissions of the Economic and Social Council of the United Nations[16]. An obligation was placed on states signatories to the Convention to establish a special administration for coordinating drug control activities. The Convention also limited the production of narcotic drugs exclusively to what was needed for medical care and scientific pursuit. However, the Convention also retained many provisions from previous Conventions deemed adequate and sufficient by representatives of participating states. For instance, the estimate system was retained. The statistical return system was similarly retained. It is also important to note here that this was the first Convention which recognized that drug addicts were clinically sick people that needed rehabilitation and not criminals as such that should be incarcerated or severely punished.

In 1971, the Psychotropic Substances Convention was concluded[17]. At this convention, psychoactive drugs other than narcotic drugs were brought under international legal control. This includes drugs that have been synthesized by scientifically altering the chemical composition of plant resin to produce psychoactive drugs, for instance Fentanyl.[18]  Henceforth, advertisement for products of such drugs under international legal control was made illegal.  Signatory states to this Convention were required to restrict the import and export of all drugs under international legal control.

In 1972, a Protocol to the Single Convention on Narcotic drugs was adopted at the United Nations by states signatory to the 1961 Single Convention on Narcotic Drugs[19]. The Protocol was necessary in that it sort to breach a lacuna or gap which remained in the previous conventions namely; how to effectively enforce the ban placed on production of narcotic plants, except of course for medical care and scientific pursuit.

The means adopted to solve this problem was to form a major part of the 1972 Protocol. It required member states to strengthen law enforcement efforts and police powers to an extent that is capable of preventing illicit trafficking in those drugs and substances. The Protocol made provisions for preventing illicit cultivation, production, manufacture, illicit trafficking and use of narcotic drugs. Other provisions contained in the Protocol were grants of technical and financial assistance to governments in support of their efforts to enforce the provisions of the Single Convention by the United Nations. There were encouragements as well for states to enter bilateral and multilateral agreements on efforts to combat illicit drug abuse and traffic.

[1] op.cit.

[2] The merchants were the trading company of Messrs Jaden & Matheson Inc.

[3] Emafo, P. op.cit.

[4] Ibid.

[5] Ibid.

[6] The Shanghai Conference, 1908.

[7] The Hague Convention, 1912.

[8] Article 1, the Hague Convention, 1912.

[9] The International Convention on Narcotic Drugs of 1931.

[10] Emafo, P. op.cit.fn. 2. p. 3.

[11] Articles 1-7 of the League of Nations protocol of 1946 which transferred the functions of the League of Nations to the newly established United Nations.

[12] Ibid.

[13] Articles 1-3 of the United Nations Protocol on Drugs of 1948.

[14] Articles 3-5 of the United Nations Protocol on Drugs of 1958.

[15] Resolution 689 J (XXVI) of the Economic and Social Council of the United Nations of 1958.  101 The United Nations Convention on Narcotic Drugs of 1961.  

[16] The International Narcotic Control Board (INCB).

[17] The Single Convention on Psychotropic Substances of 1971. 

[18] Article 1-3 of the Single Convention on Psychotropic Substances of 1971.

[19] The United Nations Protocol to the Single Convention on Narcotic Drugs of 1972.