Some say drug use should be a public health issue, not a criminal one. Is Decriminalisation the answer?

In late March, Malawi’s government legalised the production of a particular strain of cannabis for some industrial and medicinal purposes. The government plans to grant licences to cultivate and transport chamba, a local and potent variety of marijuana (also known as ganja). However, consuming cannabis for recreational purposes remains against the law. 

After the bill passed, House Leader Richard Chimwendo Banda stated: “Nowhere in the bill is it written that people will be allowed to use this chamba for recreational purposes, for smoking.”

But Malawi is not the only country to decriminalise drugs in recent years. How and why are some countries legalising drugs and what effects has that had?

Why has Malawi decriminalised some cannabis production?

The decriminalisation of cannabis is not a first for Malawi, where the growing and selling of cannabis for commercial use started in 2020 via the Cannabis Regulation Bill. At the time, Agriculture Minister Kondwani Nankhumwa stated: “Legalisation of this crop will contribute to economic growth as it will contribute in the diversification of the economy and boost the country’s exports, especially at this time when tobacco exports are dwindling.”

That vision of using cannabis to boost the Malawi economy remains intact. Malawi lawmaker Peter Dimba told parliament last week, “But as the industry grows to maturity, we will be able to earn as much as $700m. In fact, it is more than double what we are actually currently getting from the sale of tobacco.”

Why and how could drugs be decriminalised?

Some experts argue that to reduce the number of deaths caused by illegal drugs, the consumption of drugs should be treated as a public health issue rather than a criminal one.

One way to decriminalise drugs is to change the law to allow personal possession of small amounts of illegal drugs for specific purposes.

Another way is “de facto decriminalisation”, under which law enforcement and prosecutors can use their discretion in enforcing the law for small amounts of possession or use of the illicit drug. This may not lead to an arrest. For example, in Victoria, Australia, as of 2019, according to the Cannabis Cautioning Scheme, a person found with less than 50gm of an illegal drug receives a caution and a free educational session they can choose to attend.

Emily Kaltenbach, senior director of state advocacy and criminal legal reform for the Drug Policy Alliance (DPA), a US advocacy group, said: “This is just the next most logical step forward, to take it from a criminal offence to a civil offence and to treat it as a health issue, as it should be.”

Where has drug decriminalisation had a positive effect?

Portugal was one of the first countries to experiment with drug decriminalisation. In 2001, the country decriminalised all drugs and introduced robust drug treatment and harm reduction programmes instead.

Nuno Capaz, the Portuguese Ministry of Health official who runs the Commission for the Dissuasion of Drug Addiction, said being caught with illicit drugs meant for personal use should be treated “exactly the same as being caught driving without the seat belt, for example, or talking on a mobile phone while driving or riding a motorbike without a helmet … or riding the subway without a ticket”.

Statistics suggest that the programme has worked in Portugal. According to the Ministry of Health, overdose deaths fell from 300 in 2001 to 23 in 2022. By comparison, in 2022, there were 2,700 overdose deaths in Los Angeles County in the United States, where the production and use of drugs are mostly illegal and which has roughly the same population as Portugal.

Where has decriminalisation not worked so well?

In 2020, Oregon became the first state in the US to decriminalise possession of small amounts of cocaine, methamphetamine, opioids and LSD under the Oregon decriminalisation law, known as “Measure 110” or the Drug Addiction Treatment and Recovery Act. Decriminalisation has been less successful there, however.

In March, legislators in Oregon reviewed this following a surge in fatal overdoses and ultimately decided to reverse it. A new bill, which Democratic Governor Tina Kotek signed at the start of this month, will reinstate criminal penalties for the use and possession of hard drugs.

Experts say that other factors contributed to the rise in overdose deaths, however. Emily Kaltenbach said: “When Measure 110 was being implemented, fentanyl had really just reached the west coast. It really moved from the east coast to the west coast. We saw rising overdose deaths in lots of other states as a result of fentanyl that hadn’t decriminalised drugs. And then we had a pandemic.”

She added: “The overdose deaths in Oregon remain close to the national average and it’s far less than states like West Virginia or Tennessee, despite being the only state to decriminalise drugs.”

In addition, some health experts have suggested the Oregon decriminalisation law was not given enough time or resources to succeed, as stated by Tera Hurst, the executive director of Oregon’s Health Justice Recovery Alliance.

Which other countries are planning to decriminalise drugs?

Some countries have moved forward with substantial decriminalisation efforts while others have reinstated earlier legislation and are criminalising drugs again.

A new German law which took effect on April 1 has decriminalised possession of up to 25gm of cannabis for personal use and up to 50gm grown in the home for personal use. Legislation will allow individuals to cultivate a maximum of three cannabis plants in their homes for personal use. From July this year, the new law also allows for the creation of non-commercial “cannabis clubs” – groups of a maximum of 500 people who will be able to collectively cultivate cannabis for their own purchase and use.

Which other jurisdictions want to repeal the criminalisation of drugs?

In October, Governor Gavin Newsom of California vetoed a bill that would legalise cannabis cafes: dispensaries which also sell coffee or food.

In his statement, Newsom said while he appreciates the bill’s intention “to provide cannabis retailers with increased business opportunities and an avenue to attract new customers”, he is “concerned this bill could undermine California’s longstanding smoke-free workplace protections”.

In November last year, Ecuador’s President Daniel Noboa repealed legislation introduced by former President Rafael Correa that allowed possession of small amounts of illegal drugs such as cannabis, cocaine, heroin, and amphetamines. Noboa stated that he criminalised cannabis again because it “encourages micro-trafficking in schools and creates a whole generation of addicted children”.

By the end of this year, Thailand will again criminalise the recreational use of cannabis. Thailand was the first country in Asia to fully decriminalise cannabis in June 2022. However, after 18 months, Thailand is reversing this law. Health Minister Cholnan Srikaew said: “The misuse of cannabis has a negative impact on Thai children … In the long run, it could lead to [abuse of] other drugs.”