Amid growing criticism of its self-declared “war on cannabis”, the Drug Enforcement Commission has failed to answer allegations that it is targeting children and vulnerable Zambians for arrest on cannabis offenses.
DEC has also failed to explain its mysterious “diversion programme”—which is meant to remove juveniles from the court process—and why commission prosecutors continue to remand and process juveniles in the adult criminal justice system contrary to the terms of the Juvenile Act.
According to DEC’s own statistics, 265 children as young as 11 years old were arrested in 2015 for drug offenses, while 206 have been caged so far in 2016. In numerous cases, these children were picked up inside or near school grounds and many could be found wearing their school uniforms while sitting in remand prison.
Sources within the justice system claim that children are routinely held for long periods while awaiting trial. Provided they “play along” by pleading guilty, they are then processed through the diversion programme, in direct contravention to how such programmes are meant to be used.
According to sources, juveniles caught by DEC appear to be coached into pleading guilty in court. If true, this raises serious moral and ethical questions about DEC prosecutions. Despite requests for comment, the commission has refused to answer these claims or clarify their use of diversion programmes.
Diversion is intended to remove juveniles from the formal court process and instead use informal or customary processes for correction and punishment. However, as observed by Saul Nyalugwe in his 2011 UNZA Law School dissertation, “the Zambian criminal justice system did not have supporting structures for a diversion programme as an alternative to reformatories and incarcerations”.
Furthermore, Nyalugwe pointed out that these diversion programmes are largely confined to urban institutions, leaving rural juveniles to be processed through adult courts. As a result, the dissertation noted, “such children end up being given custodial sentences if found guilty, because there are no alternatives available for them.”
On the question of the DEC diversion programme, Nyalugwe’s dissertation exposed the utter lack of transparency on the part of the commission. Despite the fact that DEC was one of the first organizations to implement diversion programmes, the commission has consistently refused to comment on such cases.
While Nyalugwe was able to access information and statistics from other diversion programmes, DEC refused to comment on its own programme. “The reasons given were that since DEC was a security wing, it would be inappropriate to conduct an interview on such a matter,” Nyalugwe stated in his dissertation.
DEC may be content to shield itself from public scrutiny, but members of the judiciary are more willing to discuss the issue of juveniles and diversion programmes. Two of the five magistrates who preside over the juvenile court, Magistrates Kenneth Mulife and Anna Holland, agreed to a joint interview earlier this year.
Neither Mr Mulife nor Ms Holland could speak to the charge of DEC interference with juvenile cases regarding coaching to plead guilty, nor what exactly happens within the diversion programme once the juvenile cases are processed through the court.
“I haven’t been to DEC to see what they do,” admits Magistrate Mulife, who is also chair of the Child Justice Forum. “Really it’s not my role… [But] when we talk about diversion in general terms, we mean the mechanism to divert children from the normal criminal justice system of incarceration, that is the biggest idea behind diversion.”
Both magistrates admitted that cases of cannabis trafficking had definitely increased in their courts. “I cannot speak to why [the increase],” says Magistrate Holland. “But we offer diversional programmes to help these children reform.”
Part of the problem, however, is that diversion programmes are not being used in their ideal form—to divert children away from the courts. And as the magistrates point out, diversion programmes are not written into the Juvenile Act and so are not as effective as they should be.
“As Child Justice Forum, we have been advocating for diversion to be put in the law,” explains Magistrate Mulife. “When you look at the real nature of diversion it is one that can be administered at any stage of the criminal justice process. Many times you may not even need the courts, you can allow the communities to solve their own problems.”
Currently the Child Justice Forum is working in partnership with UNICEF and the Department of Social Welfare to create a standardized manual for diversion programmes, an innovation that Magistrate Mulife suggests will help guide the conduct of diversion programmes across the country.
Another stumbling block in cases of juveniles accused of cannabis trafficking is the discrepancy between the Psychotropic Substances Act and the Juvenile Act. According to the former Act, trafficking is non-bailable; however, the latter Act expressly states that juveniles should be bailed unless in extreme aggravated cases such as homicide.
“The question which arises is should we take trafficking to be an aggravating crime,” Magistrate Mulife explains. “Personally, in some instances, I have granted bail to children in possession by interpreting liberally that provision.”
On this point, Magistrate Holland concurs. “I believe as a juvenile court we have a special court, and depending on how you interpret the Act itself you can grant bail depending on the circumstances. But I also feel in future perhaps things should change so that the law should be very clear.”
Ultimately, both magistrates emphasize that diversion programmes and alternatives to the criminal justice system should be rigorously employed when it comes to young offenders. “It’s for the best interests of the children that we try to see what’s best for them,” says Magistrate Holland. “We don’t want to punish them, we want to reform them to make them see there’s still light at the end of the tunnel.”
It is encouraging to know that there are such empathetic and conscientious magistrates presiding over the juvenile courts in Lusaka.
However, it remains to be seen if and when DEC will get the message that caging and prosecuting juveniles and vulnerable Zambians for cannabis offenses may not be the best use of their time or resources.