Setting CAT amongst pigeons: Ruling exposes deficiencies of the law

 

In his classic novel, Cry the Beloved Country, Alan Paton writes: “The Judge does not make the Law. It is the People that make the Law. Therefore, if a Law is unjust, and if the Judge judges according to the Law, that is justice, even if it is not just. It is the duty of a Judge to do justice, but it is only the People who can be just.”

This is probably a befitting caption of what obtained in Maun High Court where Judge Godfrey Nthomiwa delivered a precedent-setting ruling that saw Newton Pelekekae, who was charged with unlawful possession of Methcathinone, commonly known as ‘CAT’, walk free. Judge Nthomiwa unambiguously stated that, under the current laws, possession of CAT is not a criminal offence. For all the evils we know CAT for, and unreasonable and demonic as the judgement may sound, it exposed deficiencies and inadequacies of our lawmakers and policy formulation.

This judgement come against the backdrop of growing concern of drug abuse, in particular, CAT in Botswana. CAT is an addictive psychoactive substance, and abuse of this drug is rapidly increasing world wide. The effects of CAT are said to be very similar to other stimulants such as cocaine and ecstasy. However, unlike cocaine, it is said the ‘high’ effect lasts longer, making it a very popular recreational drug. Available literature suggests that it can easily be made by individuals with little or no background in chemistry from a laboratory set-up that can fit into a cardboard box or car trunk.

Although CAT costs approximately the same as cocaine, it is much cheaper to produce, making it highly profitable. Most CAT producers have been relatively small-scale operators; however, its enormous profitability, its intense high, and its ease of production are beginning to attract larger scale distributors and criminal organizations as well. An increasing demand for the drug has caused an increase in its manufacturing, smuggling through ports of entry, and dealing in and consumption in it.

The illicit trade in psychoactive drugs and criminal enterprise is a threat to the safety and well-being of Batswana and poses a growing and significant hazard to national security, and economic growth. Various reports indicate that southern African countries including Botswana have become significant illicit drug transit hubs and destination markets for a diversity of illicit drugs. Growing consumer demand and improved infrastructure have shaped and facilitated the availability and accessibility of illicit drugs across the region. As a consequence, domestic and regional drug trade flows and user markets have become embedded features of the region’s domestic illicit economies.

It is generally acknowledged that many law enforcement and other government officers are corrupt, and are enablers of illicit drug markets, rather than disablers of them. Despite a strong law enforcement policy and programmatic approach to these illicit drug flows, the markets have continued to adapt and grow. Despite seizures and arrests appearing to increase in frequency and volume, illicit drug market retail prices have not decreased.

The diversity of substances available in local drug markets has increased, with new synthetic drugs beginning to challenge more traditional substances, such as cannabis. Markets for some drugs have emerged now in places where they were not previously available.

Rudimentary production has been supplanted by international industrial-based production and supply chains. The ‘commodity portfolios’ of the illicit drug distributors are more diverse in their selection of substances being supplied, and secure in their delivery. Multiple substances are moving through the same routings, vessels, ports, breakbulk points, storage facilities and transport vehicles. Urban and rural settlements now have their own vibrant retail drug markets, particularly for substances like CAT and cannabis.