"Every person -

(1) growing opium poppy, Indian hemp or coca leaf, whether for private use or otherwise; or
(2) found in possession of or selling, or who has given or sold to any person any substance to which this Part applies, shall be guilty of an offence against this Act."

Section 41(2) of the Act provided:

"Every person guilty of an offence against this Act shall in respect of each offence for which no penalty is otherwise prescribed be liable upon conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding eight years or to both such fine and imprisonment, and shall in every case, on conviction for the offence, forfeit to the Crown, all articles in respect of which the offence was committed...."

In 1990 the Dangerous Drugs Act (Amendment) Decree 1990 was passed by the then President "acting in accordance with the advice of the Prime Minister and the Cabinet." Section 3 of the Decree provides:

"Section 8 of the principal Act is repealed and the following substituted -

8. Every person

(1) growing opium poppy, Indian hemp or coca leaf, whether for private use or otherwise; or
(2) found in possession of or sells or otherwise traffics or engages in the trafficking of any substance to which this part applies, shall be guilty of an offence and upon conviction shall be sentenced to imprisonment in accordance with the Third Schedule of this Act -

Provided that a sentence imposed under this section shall be custodial."

The Third Schedule of the Act provides inter alia, that a conviction under section 8(b) of the Act, if it relates to possession of Indian hemp not exceeding 10 grams, has a penalty of a maximum term of 24 months imprisonment and a minimum term of 3 months imprisonment. The Third Schedule provides for minimum mandatory sentences for a number of drug related offences, including a minimum of 5 years imprisonment for selling or trafficking Indian hemp in quantities exceeding 100 grams.

After the passing of this Decree, it was held by the High Court in State -v- Kishore Kumar HC Revision No. 5 of 1993 that a minimum mandatory sentence need only be imposed if the court proceeded to conviction after the plea or finding of guilt. In order therefore, to avoid imposing the mandatory minimum, the courts were preferring to discharge without conviction. The then President then passed another Decree, on the 1st of February 1991. It was the Dangerous Drugs Act (Amendment) (No. 1) Decree 1991. Section 2 of the Decree provides:

"Section 8(b) of the principal Act is amended

(1) by inserting the word "immediate" after the word "to" in the sixth line;

(2) by repealing the proviso to section 8(b) and replacing it by the following proviso -

"Provided that the provision of section 29 of the Penal Code and any other law shall not apply to any sentence to be imposed under this Act."

This last Decree removed all doubt as to the mandatory nature of the imprisonment for an offence under section 8(b) of the Drugs Act.

As Pain J said State -v- Alifereti Nakautogo Crim. App. No. HAA 130 of 1997 (at page 3):

"... the clear intention of section 8 (as substituted and amended by Decree) has been to provide for a mandatory immediate prison sentence as the penalty for the offence of possession of Indian hemp (and the other offences specified in the section), the term of such sentence to be within the minimum and maximum range stated in the Third Schedule."

The Decrees were of course, followed by the 1990 Constitution, and then by the 1997 Constitution. In the sessions of Parliament following the 1992 elections, no attempt was made by the legislature to repeal or amend the Dangerous Drugs Act in respect of the mandatory sentencing. Paragraph 8(1) of the 1990 Constitution (the Preamble) provided:

"All existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and this Decree."

Section 8 of the Constitution provided that:

"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."

On 27th July 1998, the Constitution Amendment Act 1997 came into effect. Section 2 provides:

"(1) This Constitution is the supreme law of the State.

(2) Any law inconsistent with this Constitution is invalid to the extent of the inconsistency."

Section 3 provides:

"In the interpretation of a provision of this Constitution:

(1) a construction that would promote the purpose or objective underlying the provision taking into account the spirit of this Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object; and

(2) regard must be had to the context in which the Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially:

(1) developments in the understanding of the content of particular human rights; and

(2) development in the promotion of particular human rights."

Section 25(1) of the Constitution provides:

"Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment." (My emphasis)

Section 43(2) of the Constitution states, in relation to the Bill of Rights:

"In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter."

Finally, section 195(e) of the Constitution Amendment Act provides:

"all written laws in force in the State .... continue in force as if enacted or made under or pursuant to this Constitution and all other law in the State continues in operation;"

and section 195(3) provides:

"Subject to section 2 written laws referred to in paragraph (2)(e) or (f) are to be construed on, and from the commencement of this Constitution, with such modifications and qualifications as are necessary to bring them into conformity with this Constitution."

Part Three: Mandatory Sentencing Generally
Part Four: Section 25 (1), (freedom from... disproportionately severe treatment or punishment)
Part Five: Section 25 (1) and the Dangerous Drug Decrees
Part Six: Audie Pickering, Conclusion

Return to Part One: Particulars, Background, The Submissions

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This page last updated 4th May 2004