1. Introduction

This chapter examines the inclusion of trafficking in drugs within the transnational crimes jurisdiction of the Criminal Chamber of the African Court of Justice Peoples and Human Rights (hereinafter the Criminal Chamber) established under article 28(1) of the amended Statute of the Court. Drug trafficking is not a crime within the jurisdiction of any other international or regional tribunal and there is thus no practice yet to draw on for interpretive purposes.Footnote ¹ For this reason, in addition to an orthodox textual analysis, given that the complementarity provision article 46H (1) states that ‘the jurisdiction of the Court shall be complementary to that of the national courts, and to that of regional economic communities where specifically provided for by the Communities’, the Criminal Chamber can seek guidance in the interpretation of article 28K in the UN drug control conventionsFootnote ² and the practice of AU member States in the implementation of these treaties. This chapter follows suit and resorts for interpretive guidance to the amended Statute of the Court, the terms of the international drug conventions to which AU members are party and selected examples of state practice from AU member States, as well as to regional arrangements made by AU members.

2. Rationale for Including Drug Trafficking in the Jurisdiction of the Criminal Chamber

Freedom from the social ill-effects of non-medical and non-scientific drug use falls within the general goal of promotion of ‘development of the Continent’ articulated in the Preamble of the amended Statute.Footnote ³ Although data is limited,Footnote ⁴ the AU’s rolling Action Plan on Drug ControlFootnote ⁵ notes that the production, trafficking and use of illicit drugs is a growing challenge in Africa.Footnote ⁶ Similar sentiments have been articulated at a sub-regional level in the ECOWAS Political Declaration on Drug Trafficking and Other Organised Crimes in West Africa and the ECOWAS Regional Action Plan to Address the Growing Problem of Illicit Drug Trafficking, Organised Crimes and Drug Abuse in West Africa.Footnote ⁷ A particular concern is the use by South American drug traffickers of West Africa for transhipment of Cocaine. Tamfuh records:

S v Archula,Footnote ⁹ a case involving the trial in Sierra Leone of 18 accused including a number of Colombians for smuggling more than a tonne of cocaine on an Antonov aircraft disguised as a Red Cross plane through Sierra Leone, is a graphic illustration of the complexity of these operations. West Africa is also a source of methamphetamine smuggled into East and South-East Asia, while East Africa is growing in importance as a transit area for Afghan heroin bound for Europe and elsewhere.Footnote ¹⁰

A key priority of the AU’s Action Plan is improved criminal justice capacity in the investigation and prosecution of drug-related organised crime.Footnote ¹¹ The Criminal Chamber can provide some capacity regarding large-scale drug trafficking offences, but there is a danger that it will be swamped under the potentially huge number of offences, which necessitates caution in selecting cases. In the International Law Commission’s scheme for inclusion of the treaty crimes within the jurisdiction of the then proposed ICC, it was recommended that they had to reach a threshold of seriousness in order to fall under the ICC’s jurisdiction, a measure designed to prevent the ICC from being overwhelmed by minor cases.Footnote ¹² There is nothing in article 28K or the drug conventions that serves as a threshold to sift out those cases worth prosecuting from the potentially thousands of cases of no individual moment. Given the Criminal Chamber’s potentially enormous jurisdiction it will be necessary to filter out all but the most serious cases. The Court must rely on State authorities exercising a degree of self-discipline in these cases by not submitting cases to the court that are trivial simply because they do not have the wherewithal to prosecute themselves. At the Court itself, the exercise of prosecutorial discretion to screen potential cases will be the main mechanism for doing so (whether cases are taken up by the prosecutor, by authorised AU organs or submitted by AU member states or individuals or NGOS within those states).Footnote ¹³ The Rome Statute’sFootnote ¹⁴ guidance regarding gravity of offences may prove of some use regarding the necessity to prosecute only offences of regional concern and not to overburden the court.Footnote ¹⁵ The gravity threshold in article 17(1)(d) is undefined, but in relation to situations the ICC in the KenyaFootnote ¹⁶ and the Ivory CoastFootnote ¹⁷ decisions has held that the role and position (high rank) of the alleged offenders is a crucial factor when assessing gravity. In the GazaFootnote ¹⁸ case the court felt that that the gravity requirement may be judged in relation to the crime itself or its alleged perpetrators, meaning that the status of the accused could transform a non-serious crime into a grave crime. However, while in LubangaFootnote ¹⁹ the ICC based admissibility of specific cases on (1) seniority and (2) the systematic or large-scale nature of the conduct, later cases such as Ntaganda,Footnote ²⁰ Abu GardaFootnote ²¹ and MuthauraFootnote ²² have rejected reliance on the perpetrator’s status and taken the view that gravity should involve a quantitative and qualitative assessment from the victim’s perspective. Given that in drug trafficking the notional victim is the African Union, State(s) and by extension society itself, some assessment of the scale and nature of the crime, the manner of its commission and its impact on the State and on the community, is indicated. Yardsticks for seriousness that provide a useful guide of scale and impact include the scale of the operation measured by transnationality,Footnote ²³ involvement of organised criminal groups, tenure of the operation, complexity of the operation, mass of drugs involved, size of profits, the potential number of users, presence of violence, corruption or abuse of public office. The status of individuals whether as key members of the drug trafficking network or as senior officials (given the potential for corruption) and influential members of the community must also be potential indicators of seriousness. These criteria should not be cumulative; a nuanced assessment of the case may require only one or a selection to exist before prosecution is justified. The governing principle should be that it is the illicit drug traffic that is the Chamber’s target (something implicitly recognised in the fact that all of the offences within the Criminal Chamber’s jurisdiction are supply side offences).

3. The Sources of the Law

Although one of its goals is to strengthen legal frameworksFootnote ²⁴ the AU’s Plan of Action on Drug Control 2013–7 does not address the legal requirements on AU member states under the UN drug control conventions to take steps against the illicit manufacture and trafficking of drugs. Nor, in comparison to some of the other transnational offences in the protocol, is there an AU treaty regarding drug trafficking so the Criminal Chamber will not be enforcing a pre-existing AU definition of the offence. It is the Statute of the Court as amended by the Protocol, which establishes the crime of drug trafficking in the Criminal Chamber’s jurisdiction. Article 28K defines ‘trafficking in drugs’ as follows:

1. 1. For the purposes of this Statute, trafficking in drugs means:

   1. (a) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;

   2. (b) The cultivation of opium poppy, coca bush or cannabis plant;

   3. (c) The possession or purchase of drugs with a view to conducting one of the activities listed in (a);

   4. (d) The manufacture, transport or distribution of precursors knowing that they are to be used in or for the illicit production or manufacture of drugs.

2. 2. The conduct described in paragraph 1 shall not be included in the scope of this Statute when it is committed by perpetrators for their own personal consumption as defined by national law.

3. 3. For the purposes of this Article:

   1. (A) “Drugs” shall mean any of the substances covered by the following United Nations Conventions:

      1. (a) The 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961;

      2. (b) The 1971 Vienna Convention on Psychotropic Substances.

   2. (B). “Precursors” shall mean any substance scheduled pursuant to Article 12 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988.

The definition in article 28K reflects the text in selected parts of article 3(1) of the 1988 UN Drug Trafficking ConventionFootnote ²⁵ (although tailored to suit), which in turn originates in article 36(1) of the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol).Footnote ²⁶ The only African States that are not party to the 1988 Convention are South Sudan and Somalia. The fact that almost every AU member State has thus promised to enact these offences, makes the incorporation of the substance of these offences into the Protocol a plausible argument to defence challenges based on the principle of legality. This defence argument might gain some traction though where the State implementing the drug conventions has enacted an offence that bears little or no resemblance to the text of the treaties. The common objectives of these conventions are to specifically limit ‘the production, manufacture, export, import, distribution of, trade in, use and possession of’ the drugs scheduled under the treaties ‘to medical and scientific purposes’Footnote ²⁷ and to ‘suppress’ other illicit activities.Footnote ²⁸ The ultimate purpose is to benefit the ‘health and welfare of mankind’.Footnote ²⁹

4. The Substances under Control

The first condition for suppression of certain activities regarding drugs is listing (and chemically defining) the drugs regarding which the enumerated actions are illegal. The drug conventions provide a system for the scheduling of substances with dependence producing properties, and for the tabling of precursor substances (substances frequently used in the illicit production or manufacture of drugs).Footnote ³⁰ These schedules and tables are continually updated as new substances with similar properties are discovered or invented.

Scheduling identifies the substances subject to control and the appropriate level of control. Thus under the 1961 Convention, Schedule I drugs (more addictive narcotics such as opium) are subject to greater control than those in Schedule II (less addictive narcotics such as codeine). Inclusion in either schedule by the UN’s Commission on Narcotic Drugs) (the functional commission of ECOSOC which supervises the application of the international drug conventions) on the recommendation of a WHO Expert Committee in the first instance depends on whether the substance in question is liable to similar abuse to the substances already in that schedule. Schedule III is limited to preparations not liable to abuse, while Schedule IV contains a selection of Schedule I drugs considered particularly liable to abuse (such as heroin) not offset by therapeutic advantage and thus subject to special control measures. In similar manner, psychotropic substances are scheduled in four schedules under the 1971 Convention. Under the 1988 Drug Trafficking Convention, drug precursor substances are arranged in two different tables by the International Narcotics Control Board (the independent body which monitors implementation of the drug conventions). Article 28K (3) of the amended Statute of the Court incorporates by reference the scheduling/tabling system in the drug conventions. It provides that for the purposes of article 28K, ‘[d]rugs shall mean any of the substances covered by’ the Single Convention (as amended by its 1972 ProtocolFootnote ³¹) and the 1971 Convention on Psychotropic Substances,Footnote ³² while precursors are those ‘substances scheduled’Footnote ³³ pursuant to article 12 of the 1988 UN Drug Trafficking Convention.

Drug legislation in some AU members refers directly to the international classification system. For example, article 2 of Algeria’s 2004 drug lawFootnote ³⁴ defines ‘stupéfiant’ as the substances scheduled in the 1961 Convention but separates out ‘substances psychotrope’ as those substances scheduled under the 1971 Convention. Direct reference of this kind to the international schedules provides a more exact and up-to-date guide than legislation like Nigeria’s National Drug Law Enforcement Decree 48 of 1949, which in s10(a) defines the substances which cannot on pain of penalty be imported, manufactured, produced, processed planted or grown as ‘the drugs popularly known as cocaine, LSD, heroine or any other similar drugs’.

When it comes to identifying the substance(s) involved in a particular case before the Criminal Chamber, practical issues will abound. Scientific analysis of substances will be necessary to provide expert evidence in court, but can be provided by national drug analysis laboratories located in certain AU members such as the Forensic Science Laboratory of the South African Police Service. The UN Office of Drugs and Crime (the part of the UN Secretariat which administers all the UN’s efforts against transnational crime) can also provide guidance in this regard.Footnote ³⁵ Many drugs for illicit supply have been adulterated with other substances and while determining the exact amount of the prohibited substance involved is not critical for conviction, if not determined correctly it can raise issues about whether the substance before the court is the same as that originally seized. Moreover, the correct determination of the weight of the drugs may be important on sentence. Given the impossibility of transferring the substance in its entirety to the Criminal Chamber, it would be prudent for subordinate measures to be adopted that presumed that in any prosecution for one of the defined drug trafficking offences that a sample taken from any substance by means of or in respect of which the offence was allegedly committed possesses the same properties as the substanceFootnote ³⁶ and that a reasonable estimation of the weight of the drugs involved is permissible as evidence in the Criminal Chamber. Provision will also have to be made in subordinate measures for forfeiture, authorised safe-keeping during the chain of custody of the drugs before and prior to trialFootnote ³⁷ and supervised destruction of the substances involved thereafter as is required in article 4(2)(c) of the SADC Protocol on Combating Illicit Drug TraffickingFootnote ³⁸ and is the practice in AU member states.Footnote ³⁹

5. Lawful and Unlawful Actions Regarding Controlled Drugs

Under the conventions, scheduling does not prohibit scheduled drugs; it is the implementation at a national level of the penal provisions of the conventions that prohibits certain actions regarding these drugs. The convention obliges states to criminalise: the drug control scheme as laid down in the UN Conventions requires criminalisation at a national level of (i) a certain action such as ‘production’, (ii) regarding a certain scheduled substance such as heroin, (iii) so long as that action is not for ‘medical or scientific purposes’. The latter division between licit and illicit production of a scheduled drug arises from article 4(c) of the Single Convention’s general obligation on States parties ‘to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.’ Article 3(1) of the 1988 Drug Trafficking Convention recognises this by providing that the various enumerated actions must be ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’. This echoes the definition of the ‘illicit traffic’ in article 1(1)(1) of the 1961 Convention as ‘contrary to the provisions’ of that Convention. It implies that the offences only apply to actions for non-medical and non-scientific purposes. Article 28 K (1) does not explicitly recognise that some of the prohibited actions can be undertaken for licit medical and scientific purposes. It thus could be used to convict an individual pharmaceutical company of ‘manufacture’ of a scheduled substance even if it is for a ‘medical purpose’ recognised by the territorial state’s national law. This would be contrary to the position under the conventions and under the domestic law of AU members.Footnote ⁴⁰ This lacuna in the amended Statute of the Court can easily be remedied by a subordinate measure to the effect that actions recognised as having licit medical, scientific, and law enforcement purposes, in the drug conventions and in national law, do not fall within the scope of any of the offences in article 28K. This could be addressed through the proposed Elements of Crimes.

6. Supply Offences not Personal Use Offences

Drug trafficking as defined in article 28 K (1) is made up of a range of supply related offences.Footnote ⁴¹ Article 28 K (2) provides that ‘[t]he conduct described in paragraph 1 shall not be included in the scope of this Statute when it is committed by perpetrators for their own personal consumption as defined by national law.’ It thus excludes from the jurisdiction of the Criminal Chamber Court ‘use’ or ‘possession for use’, avoiding a potential deluge of cases and the controversy surrounding inroads into personal rights.Footnote ⁴² It might be argued by some that article 28K (2) goes too far. An individual accused could feasibly produce methamphetamine for example, for their own use, and under the exception it would not matter how much they produced, their action would not fall within the jurisdiction of the Court. Inferences from the evidence will, however, circumscribe this exception; the greater the volume of production or weight of the drugs involved the more likely the purpose was to supply.

7. The Drug Supply Offence

The elements of the drug ‘supply’ offence in article 28(K)(1)(a) are as follows:

1. (a) The perpetrator produced, manufactured, extracted, prepared, offered, offered for sale, distributed, sold, delivered on any terms whatsoever, brokered, dispatched, dispatched in transit, transported, imported or exported. This list reproduces the forms of conduct listed in article 3(2) of the 1988 Drug Trafficking Convention. Any one or more of these forms of conduct will suffice. Each has its own specific meaning, although they may overlap. ‘Production’ is defined in the 1961 Convention as the agricultural ‘separation of opium, coca leaves, cannabis and cannabis resin from the plants from which they are obtained’.Footnote ⁴³ ‘Manufacture’ ‘means all processes, other than production, by which the drugs may be obtained and includes refining as well as the transformation of drugs into other drugs.’Footnote ⁴⁴ ‘Extraction’ is the physical or chemical means of separating and collecting substances from mixtures.Footnote ⁴⁵ ‘Preparation’ means mixing for use.Footnote ⁴⁶ Although undefined, ‘offering’ involves tendering a drug to a potential consumer for acceptance or refusal, including as a gift. ‘Offering for sale’ implies offering for purchase. ‘Distribution’ ensures that drugs move through the chain of supply from producer to consumer, and ‘sale’ the disposal of drugs for some consideration. The catchall ‘delivery on any terms whatsoever’ ensures the inclusion of any form of delivery including constructive delivery through, for example, the transfer of keys to a storage facility. In ‘brokerage’ agents negotiate on behalf of buyer or seller to facilitate the transaction. ‘Dispatch’ involves the sending of drugs to a specific destination while ‘dispatch in transit’ involves sending drugs to a destination outside that territory or to one of which the dispatcher or carrier are ignorant. ‘Transport’ involves the conveying of drugs from one place to another by any mode through any medium with the specific purpose of carrying to a specific place or person.Footnote ⁴⁷ The ‘import’ and ‘export’ of drugs is the ‘physical transfer of drugs from one State to another State, or from one territory to another territory of the same State.’Footnote ⁴⁸

   In some AU member states these actions are covered by fewer broader terms. Thus s1(1) of Ghana’s Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990, only specifically prohibits ‘import’ and ‘export’, while section 3(1) specifically prohibits ‘manufacture, produce or distribute’, and section 6(1) specifically prohibits ‘supply’. Kenya’s approach is even more concise with the generic term ‘trafficking’ used in s4 of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, but then in a common formula section 2 gives an expansive definition of ‘trafficking’ that specifies all of the forms spelled out in the drug conventions. In Kenyan practice there has been some dispute about whether it is necessary to specify in the indictment which specific mode of trafficking listed in that definition has been undertaken so long as one of these forms of action is actually undertaken on the evidence.Footnote ⁴⁹ The better view and the practice that should be followed in the Criminal Chamber is that the charge sheet must disclose the specific form of drug ‘supply’ alleged so as to guide the prosecution in the evidence they must lead to establish the charge and properly inform the accused of the particular conduct alleged against them.Footnote ⁵⁰

2. (b) Drugs (as scheduled under the 1961 and 1971 Conventions).

3. (c) Intentionally. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions from which it is derived provide that each of the proscribed acts must be ‘committed intentionally’.Footnote ⁵¹ Although most domestic legislation of AU member states does not specify the state of mind applicable to drug offences, the courts apply subjective mens rea to these offences in the absence of an express contrary statutory intention. While it has been held in Kenya that knowledge that someone is engaged in an act of trafficking is not a part of Kenyan law,Footnote ⁵² in other AU member states it is clear that mens rea is an ingredient of the offence and on the general principle actus non facit reum nisi mens sit rea the latter position must be the correct interpretation of the amended Statute. Intention suggests a purpose to engage or at least subjective foresight of a high probability of engaging in one of the listed actions with knowledge of the fact that one is supplying a drug;Footnote ⁵³ recklessness in the sense of foresight of a possibility and reconciliation to that possibility will not suffice. In practice evidence of mere possession will not be enough to establish an intent to supply without further additional evidence such as the weight of drugs possessed. The South African Constitutional Court has held that ‘If an accused is found to have been in possession of a large quantity of dagga, it might, depending on all the circumstances and in the absence of an explanation giving rise to a reasonable doubt, be sufficient circumstantial evidence of dealing…’.Footnote ⁵⁴ The jurisprudence from the AU member states on drug-related offences may prove to be a useful source of persuasive authority in the interpretation and application of the Malabo Protocol.

8. The Drug Cultivation Offence

The elements of the drug ‘cultivation’ offence in article 28(K)(1)(b) are as follows:

1. (a) The perpetrator cultivated. According to the 1961 Convention ‘cultivation’ includes within its scope the unregulated, illicit, prohibited cultivation of the opium poppy, coca bush or cannabis plant.Footnote ⁵⁵ Precisely what amounts to the action of cultivation is undefined, but it is usually taken to involve some deliberate fostering of the plant through objectively verifiable actions such as watering and weeding rather than simply witting or unwitting possession of property on which plants grow. In South African law, for example, it is taken to mean ‘to promote or stimulate the growth of any plant’.Footnote ⁵⁶

2. (b) The opium poppy, coca bush or cannabis plant. Following the definitions in the 1961 Convention, “Opium poppy” means the plant of the species Papaver somniferum L.Footnote ⁵⁷ “Coca bush” means the plant of any species of the genus Erythroxylon.Footnote ⁵⁸ “Cannabis plant” means any plant of the genus Cannabis.Footnote ⁵⁹ These are the definitions used in AU members.Footnote ⁶⁰ It follows that no person could be accused under this offence of cultivating cannabis resin or cannabis oil, which are derived from cannabis by ‘production’, an action within the scope of the supply offence.

3. (c) Intentionally. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions from which it is derived provide that each of the proscribed acts must be ‘committed intentionally’.Footnote ⁶¹ It is necessary that the accused must have known the identity of the plant that they were cultivating. If they genuinely thought (which seems unlikely) that they were cultivating a tomato plant rather than cannabis they could not, for example, be found guilty. Finally, it has been pointed out in the South African case of S v MbathaFootnote ⁶² that the application of mens rea in this context entails more than just the intention to stimulate the growth of the plant (which is implicit in the act of cultivating) but in addition an ulterior purpose to sell or supply (deal in) the drug. Given that the cultivation offence in article 28(K)(1)(b) is not simply an analogue of possession and is a more serious offence involving participation in one aspect of the supply side of the drug traffic, it would be useful for subordinate measures to be adopted by the Criminal Chamber making it clear that such ulterior purpose is a necessary element of the mens rea for this offence.

9. Possession or Purchase for Trafficking

The elements of the possession or purchase for trafficking offence in article 28(K)(1)(c) are as follows:

1. (a) The perpetrator possessed or purchased. Although undefined, purchase usually involves buying the drugs for consideration, while possession (also a condition relevant to many of the forms of supply discussed above) involves both a physical element (detentio) of the drugs, and a mental element (animus possidendi), awareness that they are in one’s physical control.Footnote ⁶³

   The limits of the physical element are difficult to draw. A typical approach is that followed in Seychelles law where it may be established through a continuous act that involves either physical custody or the exercise of control.Footnote ⁶⁴ To put it another way, possession may be actual in the sense that the accused has it in their personal possession or constructive in the sense they knowingly have it in another place, room or conveyance, or in the possession of another person for their or another’s benefit.Footnote ⁶⁵ Seychelles’ jurisprudence suggests that control should be exclusive before one can be found to be in possession of the drug.Footnote ⁶⁶ But more expansive approaches are taken. In Sierra Leone, for example, proof of the finding of a drug within the immediate vicinity of the accused or on an animal, vehicle, vessel or aircraft that the accused was at the time in charge of or that he accompanied it leads to a presumption that the accused is in possession.Footnote ⁶⁷ It would not be advisable for the Criminal Chamber to take such a rigid position in this regard but to consider the evidence as a whole in deciding whether the accused enjoys effective control or not.

   The mental element is complicated because it doubles in function as both an element of the actus reus and of the mens rea. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions provide that each of the proscribed acts must be ‘committed intentionally’.Footnote ⁶⁸ The key issue is whether the accused must know they are in possession of a substance or in addition, know that it is prohibited or even further, know the identity and qualities of that substance. Practice differs. Under Seychelles law the court must be satisfied that the accused had knowledge of the drug they possessed.Footnote ⁶⁹ In Namibia the accused need not be fully aware of the name and nature of drug concerned; animus is satisfied by knowledge of the existence of the thing itself and not its qualities.Footnote ⁷⁰ This permits in principle a mistake of fact of a basic kind to negate a charge (for example, the accused thought cannabis seeds were tomato seeds) but not of a more refined kind (the accused thought it was pure cocaine not cocaine adulterated with washing powder). This is an approach the Criminal Chamber would be advised to take. A common question is how much knowledge is required to establish possession of drugs found within some conveyance that the accused owns or controls or in which they were being carried. A similar issue arises regarding possession of drugs found within a dwelling that the accused owns or controls, lives in or was present in. As Botswana’s Court of Appeal has pointed out, in a case involving the discovery of 7894 mandrax tablets secreted in compartments in the boot of a car, ‘[u]sing innocent people to transport habit-forming drugs is something which, no doubt, is not unknown in the underworld of drugs, but a plea by the driver of a vehicle caught in possession of drugs that he was unaware that they were there is also not unknown.’Footnote ⁷¹ The practice in some AU members tends to depend on the degree of knowledge that the accused has of the presence of the drugs within the conveyance or dwelling, rather than their degree of control they have over the vehicle. Kenyan law insists that a passenger in a vehicle is not in possession of any drugs found therein unless they enter the vehicle with the full knowledge it is being used to convey drugs.Footnote ⁷² In other AU members control is the issue. In Namibian law, possession of the motor vehicle leads to a strong inference that he or she is in possession of its contents, an inference that place an evidential burden on the accused to raise real doubt that they had no reason to suspect that its contents were illicit.Footnote ⁷³ One way of avoiding this problem is to adopt a presumption (rebuttable or irrebuttable) that the accused is aware that they are in possession of the drugs found in their possession, something common in domestic legislation.Footnote ⁷⁴ A more principled way of alleviating some of the burden on the prosecution is to take the view that once detentio is proved the necessary animus is presumed unless the accused can meet an evidential burden that raises some doubt about their awareness thus shifting the burden onto the prosecution to adduce evidence sufficient to establish beyond reasonable doubt that the mistake was not honest.

2. (b) Drugs (as scheduled under the 1961 and 1971 Conventions).

3. (c) With a view to production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation. The implication is that ‘possession’ or ‘purchase’ must be for the ulterior purpose of use in the chain of supply, not for personal use. Although offences of this type are common among AU members,Footnote ⁷⁵ such an ulterior purpose may be difficult to prove and for this reason the UN’s Official Commentary on the 1961 Convention suggests that states provide for a ‘legal presumption that any quantity exceeding a specified small amount is intended for distribution.’Footnote ⁷⁶ Presumptions of this kind are common in post-1961 domestic drug legislation but are vulnerable to constitutional challenges for breaching the presumption of innocence.Footnote ⁷⁷ The Statute does not provide for such a presumption, and it would be more principled to allow proof of evidence such as large quantities of drugs found in the accused’s possession as well as other circumstantial evidence to serve to shift an evidential burden onto the accused that they did not have such an ulterior purpose.

10. Precursor Offence

The elements of the ‘precursor’ offence in article 28(K)(1)(d) are as follows:

1. (a) The perpetrator manufactured, transported or distributed. ‘Manufacture’ of precursors involves all the processes by which these substances may be obtained including refinement and transformation, ‘transport’ means the conveying of precursors from one place to another by any mode or medium, and ‘distribution’ the movement of the substance through the chain of supply from producer to consumer. The practice in the AU in this regard is patchy. South Africa, for example, only penalises the manufacture or supply of a scheduled precursor substanceFootnote ⁷⁸ while regulating the import and export of these substances in the normal way.Footnote ⁷⁹

2. (b) Precursors (as defined in article 12 of the 1988 Drug Trafficking Convention and Tabled in Tables I or II).

3. (c) Intentionally. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions from which it is derived provide that each of the proscribed acts must be ‘committed intentionally’.Footnote ⁸⁰

4. (d) Knowing that they are to be used in or for the illicit production or manufacture of drugs. These offences must be carried out with specific knowledge of the illicit purpose to which these things are to be put in order to avoid extending their scope to innocent suppliers. Establishing knowledge – to know something as a fact – may be difficult and some States have lowered this threshold to suspicion.Footnote ⁸¹

11. Party liability and Inchoate offences

Article 28N expands the modes of responsibility for these offences to ‘any person who’:

1. i. Incites, instigates, organises, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;

2. ii. Aids or abets the commission of any of the offences set forth in the present Statute;

3. iii. Is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute;

4. iv. Attempts to commit any of the offences set forth in the present Statute.

Article 28N covers all of the inchoate and participatory actions provided for in the 1961 Convention and in the 1988 Convention and adds some of its own. The 1961 Convention obliges parties to criminalise ‘participation in, conspiracy to commit and attempts to commit’ its offences as well as, ‘preparatory acts and financial operations’ in connection with its offences (although this obligation is subject to any ‘constitutional limitations’ of the States parties, which indicates that some States parties would not be able to take it up through constitutional incompatibility).Footnote ⁸² The 1988 Convention obliges parties to criminalise the ‘organization, management and financing’ of the supply offences but without constitutional limitation.Footnote ⁸³ Its obligations to criminalise ‘public’ incitement (through the media),Footnote ⁸⁴ conspiracy and inchoate forms of article 3(1) offencesFootnote ⁸⁵ are, however, also subject to the constitutional limitation, as is criminalisation of ‘participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any’ article 3(1) offence.Footnote ⁸⁶ One difficulty may be that inchoate offences such as conspiracy (an agreement to commit an offence) are common in common law AU membersFootnote ⁸⁷ but not in civil law AU members where it may be unknown. It is unclear what the implication of this is for domestic jurisdictions, in civil law states, which would have the first responsibility to prosecute the crimes under the complementarity principle and the failure of which is required before the Criminal Chamber will have jurisdiction over the matter.

12. Punishment for drug trafficking offences

The amended Statute provides no guidance for the punishment of the offences defined in article 28K. The penal provisions in the drug conventions suggest proportionality is an overriding concern although the 1988 Convention emphasises that punishment should be at the severe end of the scale. Article 36(1) of the 1961 Convention provides (i) that all the forms of drug-related conduct enumerated in article 36(1) shall be ‘punishable offences’ and (ii) ‘serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.’ The 1971 Convention also adopts this dual punishment regime. Article 3(4)(a) of the 1988 Convention introduces a stronger normative element which can be interpreted as pointing to more severe penalties. It requires that parties must ensure that article 3(1) offences are punished by penalties that consider their ‘grave nature’, using punishments ‘such as’ ‘imprisonment or other forms of deprivation of liberty’, ‘pecuniary sanctions’ and ‘confiscation’. The 1988 Convention also provides a non-exhaustive list of aggravating factors,Footnote ⁸⁸ which may characterise an article 3(1) offence as ‘particularly serious’, and which parties must permit their courts to take into account. These include the involvement of an organised criminal group in the offence, the involvement of the offender in other international organised criminal activities, the involvement of the offender in other illegal activities facilitated by the offence, the use of violence or arms by the offender, the holding of public office by the offender, use of minors, commission of the offence in a prison, educational facility, social service facility, and previous convictions. The punitive tendency is sustained at a regional level. For example, article 4(2)(b) of the SADC Protocol provides that domestic legislation in SADC States shall provide for ‘maximum custodial sentencing which will serve both as punishment and deterrent and would include provision for rehabilitation.’

Statutory schemes for the punishment of these offences among AU members vary widely, but imprisonment is common and potential punishments heavy. Some employ statutory minima,Footnote ⁸⁹ some statutory maxima,Footnote ⁹⁰ some a range between a minimum and a maximum,Footnote ⁹¹ and in rare instances penalties are stipulated.Footnote ⁹² The tariff range frequently extends to heavy punishments including life.Footnote ⁹³ The imposition of fines may be in additionFootnote ⁹⁴ or in the alternative to imprisonment but they are often relative to the value of local currencies and standard of living in local economies and do not provide an Africa-wide frame of reference.Footnote ⁹⁵ Some AU members apply the death penalty for drug trafficking.Footnote ⁹⁶ Although the drug conventions are silent in this regard, human rights bodies have criticised executions for drug offences as violations of international lawFootnote ⁹⁷ and the UNODC Executive Director has noted that the weight of opinion is that these offences do not reach the threshold of most serious crimes.Footnote ⁹⁸ Employment of aggravating factors is common and they may include previous convictions,Footnote ⁹⁹ holding public office, membership of a criminal organisation, resort to the use of violence or weapons, involvement of health personnelFootnote ¹⁰⁰ or even membership of a group organised extraterritorially for the purpose of committing the crime.Footnote ¹⁰¹

Practice in domestic courts differs widely. Considering factors like the volume of the substance involved (on the theory that greater quantity means greater profit deserves greater punishmentFootnote ¹⁰²) and the harmful potential of the particular class of drugs (revealed by its scheduling), supply is usually punished by periods of imprisonment, or fines, or combinations of the two. Courts have, however, emphasised that in drugs cases volume and type of drug are not the only factors to be considered and that other individuating factors must be taken into account when exercising the inherent sentencing discretion of the courts.Footnote ¹⁰³ Punishment of the organisers of the traffic is clearly the target, something colourfully illustrated in the judgment of the Swaziland Supreme Court in R v Iddi and Others:Footnote ¹⁰⁴

1. [35] The above dictum is authority for the proposition that the big kahunas who lead the networks described in (d) above should receive substantial custodial sentences. It is a notorious fact that these faceless bosses who head, control and direct wholesale distribution networks are rarely, if ever caught and brought to book by prosecuting authorities. The small fry, such as these three appellants, are the expendable couriers and mules, defined in the Concise Oxford Dictionary as a courier for illegal drugs, who knowingly, wittingly and willingly, undertake to transport illegal drugs in a number of ingenious ways across international frontiers.

In the final analysis, however, the Criminal Chamber enjoys a complete discretion to make the punishment fit the crime. It would be practical to support the articulation in a subordinate instrument of punishment maxima and aggravating factors, together with detailed guidance emphasising the importance of individuating factors and the overall goal of suppression of the organisation of the traffic. It should be noted, however, that many of these aggravating factors and punishments are apt for the punishment of individuals, but inappropriate to the punishment of corporate entities which is provided for in the Protocol under article 46C. Of course the imposition of penalties on corporate officers who engage in these offences is possible; the more taxing task will be develop a jurisprudence which makes it possible to impose appropriate financial penalties on these entities themselves or to be more adventurous and order the structural reform of these entities.

Finally, as part of the penalty process the Criminal Chamber will have to exercise the powers of confiscation provided under article 43A(5). Supporting provision will have to be made in subordinate instruments for effective measures for ordering AU members to trace, freeze, and seize the proceeds of crime and to request non-African States to do so.

13. Treatment and Rehabilitation of Drug Traffickers Who Are Themselves Users

On occasion alleged traffickers will also be users and will require treatment and rehabilitation during trial and on disposition. While the amended Statute provides no guidance for the treatment of suspects, accused persons and convicts who are themselves drug dependant, the drug conventions provide guidance in this regard. In terms of article 36(1)(b) of the 1961 Convention (inserted by article 14 of the 1972 Protocol) parties have the discretion to implement measures such as treatment, education, and rehabilitation as alternatives to conviction and punishment or in addition to conviction and punishment, no matter how serious the offence, when the offender is an abuser. Article 3(4)(c) of the 1988 Convention allows parties ‘in appropriate cases of a minor nature’ to provide as an alternative to punishment measures such as treatment and aftercare for drug users engaged in article 3(1) drug supply offences. Article 4(2)(b) of the SADC Protocol requires provision for rehabilitation. AU members have made provision at a legislative level for these services.Footnote ¹⁰⁵ These provisions suggest that the Criminal Chamber should ensure that it is in a position to provide accused persons and convicts through the agency of AU members a variety of therapeutic programmes to enable the amelioration of their dependence and their ‘social reintegration’.Footnote ¹⁰⁶ This should be either in addition to punishment or as an alternative (in those rare cases where relatively minor offenders such as drug couriers who are also users are before the court because they have been implicated in a major case).

14. Practical Challenges in Prosecuting Drug Trafficking Offences

Positive complementarity with AU members regarding the drug trafficking offences is likely to be hampered by the uneven development of anti-drug trafficking legislation across the continent. Many African states retained colonial era cannabis laws at independence because of the low incidence of trafficking of other drugs. While some states have updated their laws others have not.

Operationalizing these offences will also face particular challenges. Regarding formal legal assistance, Article 46 L (1) of the Protocol provides for a general duty of States Parties to co-operate with the Court in the investigation of the crimes defined by the Protocol which thus includes drug trafficking and cultivation. Article 46L (2) provides for a standard list of specific forms of cooperation that can be sought from States Parties including identification of suspects and production of evidence. Importantly it includes an obligation to provide ‘any other type of assistance’ not prohibited by the law of the requested State. The mini-MLAT in article 7 of the 1988 Drug Trafficking Convention spells out in detail conditions for refusal, and the procedure to be adopted not mentioned in article 46L(2). In practice this has been overtaken at a multilateral level regarding cooperation against drug trafficking by the more complex provisions for assistance in article 18 of the UN Convention against Transnational Organised Crime.Footnote ¹⁰⁷ At a more practical level, the Criminal Chamber’s investigative and enforcement capacity will depend in part on the specialist drug units of AU member state police forces such as the National Drugs Enforcement Agency (NDEA) in the Seychelles. The Protocol does not provide for the kinds of law enforcement cooperation schemes now common in the large crime control conventions. They provide for police cooperation in the form for example, of direct exchange of information. Article 9(1)(a) of the 1988 Drug Trafficking Convention, for example, obliges parties to ‘establish channels of communication between competent agencies’ regarding article 3(1) drug trafficking offences. These systems are heavily conditioned by the interest of States. Their success is aligned to the enthusiasm (or lack thereof) regarding the particular transnational crime. The development of trust between different police forces is the other key condition to their success. In order to enjoy success the officials of the African court are going to have to insert themselves into this ‘transnational subculture of policing’Footnote ¹⁰⁸ while negotiating effectively with the interests of the large powers such as the United States that police drugs globally. Moreover, national police forces in African States have problems of their own: inadequate resourcing, training, weak law enforcement structures, shortage of detection and forensic capabilities, and corruption have, for example, all been identified by the ECOWAS Regional Action Plan as problems.Footnote ¹⁰⁹ Evidence in some cases implicates officials in drug trafficking in certain African countries and prosecutors before the Criminal Chamber may find themselves working in a hostile environment where cooperation from local officials is not forthcoming.Footnote ¹¹⁰ The Criminal Chamber will also have to rely on the legality within the domestic law of the AU members of specialist policing tactics like controlled delivery and undercover operations, surveillance, joint investigation teams, all of which are provided for in the UN Drug ConventionsFootnote ¹¹¹ and in some AU members.Footnote ¹¹² AU members have on occasion had difficulties in engaging in international cooperation in drug trafficking cases where much of the enforcement action has been undertaken by foreign law enforcement,Footnote ¹¹³ but they are becoming more adept at transnational policing of drug trafficking and the Criminal Chamber should be able to tap that expertise.Footnote ¹¹⁴ Protection of human rights during enforcement must also be guaranteed. The UN’s Commission on Narcotic Drugs notes that enforcement of drug offences must respect:

Many of these challenges could be addressed by provision at the AU level for a law enforcement cooperation scheme such as that envisaged in article 6 of the SADC Protocol and a more detailed scheme of legal assistance using the provisions in the UN Convention against Transnational Organised Crime as a guide, because they are not specific to any particular offence.

15. Changes in Global Drug Control

The final challenge for the Criminal Chamber is adapting to changes in international drug control itself. Drug laws have been subject to constitutional challenges at a national level although unsuccessfully,Footnote ¹¹⁶ and there is growing pressure to reform the UN Drug Conventions,Footnote ¹¹⁷ although it is uncertain how much support for reform there is in Africa itself. If, however, a substance was rescheduled or de-scheduled that would not require any further amendment of the amended Statute as the Criminal Chamber’s jurisdiction expands and contracts in material terms depending on what substances are scheduled in the existing schedules under the drug conventions.

16. Conclusion

The inclusion of drug trafficking and drug cultivation within the jurisdiction of the African court’s criminal chamber is an entirely novel development; these offences are not within the jurisdiction of any other international tribunal. This development is designed to respond to the dramatic increase in drug trafficking in parts of the continent, which presents a serious challenge for the AU and its member states. Developing the relationship between the court’s jurisdiction over this crime and the international drug control system based on the UN drug conventions will lead the African court into uncharted territory. The crimes in article 28(1) are not, however, conceptually challenging. Their elements are well known and understood in national jurisdictions throughout Africa. The Court faces two major difficulties: first, to ensure that only serious drug trafficking and serious drug cultivation offences are taken up into the jurisdiction of the court, and second, to articulate effectively with the existing specialist law enforcement procedures and institutions directed towards drug law enforcement. The challenge will be not to be overcome by trivial offences while at the same time being ineffective against the truly serious offences.