With the support of Deputy Speaker, Lenox Shuman, the lone opposition member in parliament, Government on Monday night passed a bill which removes custodial sentences for possession of less than 30 grammes of cannabis.
The bill tabled by Minister of Legal Affairs and Attorney General, Anil Nandlall, was first read in the House in January 2021. The bill was then sent to a select committee for further discussion and input from civil society.
“We are removing custodial sentence from 1 to 30 grams but it still remains a criminal offence. In respect, to 1-to 30 grams, the penalty is counselling – mandatory counselling and from 15-30 grams, the penalty is community service, under the extra-mural work act,” the Attorney General said.
Nandlall, who spoke at length on the bill, told the House there were petitions from different groups on how to best address any decriminalisation. Accord-ing to Nandlall, the position arrived at, accommodates in the most balanced way the competing views and opinions within the four corners of society.
“What you see here Mr Speaker, is a position that reflects our attempt at finding a compromise on a very contentious question.”
In his address, he was also quick to highlight that by passing the bill, his government is delivering on one of their campaign promises.
“We never promised decriminalisation, we promised removing custodial sentences for up to 30 grammes and that is what we are delivering today” he added.
The AG slammed the David Granger-APNU+AFC administration for its failure to deliver on its promise of decriminalising the possession of narcotics. He recalled that there was little support from the opposition side of the House while the bill was in the committee stage.
The only contribution made by the opposition during that time was a proposal on the amount of cannabis an individual could have in their position.
Strong views were presented during the consultation period by the Guyana Rastafarian Council, Twelve Tribes of Israel, Healing the Nation Democracy Party, Roger Edmondson Foundation for Herbal Life, Assemblies of God Guyana, the Guyana Hindu Dharmic Sabha, the Guyana Bar Association, the Central Islamic Organization of Guyana, and the Guyana Islamic Forum, among others.
Additionally, the Minister of Legal Affairs stated that although the rest of the world was moving towards the decriminalization of marijuana, the Caribbean is moving along the route to remove custodial sentencing for small quantities of cannabis.
Prior to the changes in the law, those caught with less than 16 grammes of cannabis in their possession could have been penalized for trafficking and face a three to five-year jail sentence with a fine up to $30,000.
Nandlall stated that this move also works in favour of reducing the prison population.
“We thought it was simply wrong to condemn our young people in particular and our citizens across the board to such a harsh and potentially destructive penalty of three to five years in prison for the use of small quantities of marijuana,” the Attorney General said.
Deputy Speaker and Leader of the Liberty and Justice Party, Shuman, in his contribution which supported the bill, said having gone into communities, he has heard of the effects and impacts marijuana has on communities. He noted that while there are still many concerns about the decriminalisation of possession, this approach is a right step.
He alluded to the fact that many youths had to face jail time because of being in possession of small amounts of cannabis. Shuman stated that without a second thought youths were sent to jail with hardened criminals.
“What this bill does it balances societal views. It is not perfect for people who smoke… It is my sincere hope that people who consume, who smoke, that they don’t look at this as the final step,” he added.
Michael Carrington
Since 2016, the APNU+AFC was proposing the decriminalisation of the small amounts of marijuana but that bill was never passed. It was first tabled by AFC Member of Parliament, Michael Carrington.
Last year, an APNU+AFC motion which was presented by Sherod Duncan was thrown out after several hours of debate at the Arthur Chung Conference Centre.
Duncan’s bill sought to increase the amount of cannabis which constitutes a trafficking offence from the existing quantity of 15 grammes to 500 grammes. The motion was submitted to the National Assembly in December, 2020.
The opposition motion had come although APNU+AFC failed in its five-year term in office to decriminalise small amounts of marijuana.
The coalition had said that the inactivity of the National Assembly in 2019 due to the passage of the no- confidence motion on December 21, 2018, prevented MPs from the Alliance for Change (AFC) segment of the governing coalition from being able to successfully pilot the amendment of the Narcotic Drugs and Psychotropic Substances (Control) Amendment Bill.
After the Opposition motion to introduce the bill was rejected by the house, Nandlall back in January 2021 stood and presented his bill for the first time to the House. He also asked that it be transmitted to a Special Select Committee for further consultation.
According to the Explanatory Memorandum of the bill, which was passed on Monday night, under the new subsection (2A) the possession of a quantity of cannabis or any substance held out to be cannabis which does not exceed fifteen grammes is punishable by mandatory counselling for a period to be determined by the counsellor. Under (2B) the possession of any quantity of cannabis or any substance held out to be cannabis which exceeds fifteen grammes but does not exceed thirty grammes is punishable by community service which includes employment in public work under the Extra-Mural Work Act, Cap. 11:02, for a period not exceeding six months.
Clause five seeks to amends section 5(2)(e) to increase the quantity of cannabis, in relation to the burden of proof being placed on a person to prove that the person is not in possession of cannabis for the purpose of trafficking, from more than fifteen grammes to more than thirty grammes.
Clause six seeks to amend Section 12 by removing the fine and term of imprisonment for the smoking, inhaling, sniffing, or otherwise using cannabis, being found in a place used for that purpose, or being the owner, occupier, or concerned in the management of any place used for preparation of cannabis for that purpose. The amendment also seeks to remove the penalty for the possession of any pipe or other utensil used in connection with the smoking, inhaling or sniffing or otherwise using of cannabis.
These offences are now punishable by community service for a period not exceeding six months. In addition, the offence of handling any package, container or other thing which contains a quantity of cannabis not exceeding fifteen grammes, is now punishable by mandatory counselling for a period determined by the counsellor. Where the package, container or thing has a quantity of cannabis or any substance held out to be cannabis which exceeds fifteen grammes but does not exceed thirty grammes the offence will now be punishable by community service which includes a public work under the Extra-Mural Work Act, Cap. 11:02, for a period not exceeding six months in relation to cannabis and a period not exceeding three months in respect of the substance.
Further, while the clause seeks to expunge the fine and term of imprisonment for smoking cannabis, it also prohibits the smoking of cannabis in certain places in line with the prohibition of smoking in public places provided for under Section 16 of the Tobacco Control Act, No. 17 of 2017, and is punishable by the same fines found in that Act in addition to the penalty herein.
Clause Seven seeks to amend Section 72 in relation to the discretion of the court to order a person convicted of an offence under Section 4, who is an addict and in possession of cannabis for personal consumption, to undergo rehabilitation where the court thinks fit, of the period of the community service.
Clause 8 also seeks to amend Section 73 in relation to the limitation on the power of the court to impose a lesser sentence to remove the special reason for the discretion of the court to reduce the term of imprisonment for the possession of five grammes for personal consumption as the provision is no longer necessary. The clause also seeks to substitute subsection (5) to provide for the court to make an order for mandatory counselling for a period within the period the person is performing community service where no order for care, treatment and rehabilitation of person addicted to a narcotic is made under Section 72.
The bill also inserts new subsections (6), (7), (8) and (9). Subsections (6) and (7) prescribe the hours and instances for the undergoing of mandatory counselling and the performance of community service. Subsections (8) and (9) cater for instances in which the offender does not consent to an order for mandatory counselling and community service to be granted and where the requirements of an order to undergo mandatory counselling or perform community service is breached by the offender to give the court the discretion to order the offender to pay a fine of two hundred and fifty thousand dollars, where the court sees fit.
