Drug Policy and its Impact on Human Rights in Nicaragua.
By Elvin Francisco Rodríguez Fabilena, chapter leader of EPSD (SSDP) Nicaragua
Nicaragua’s strategy to tackle drug trafficking and organized crime is a prohibitionist approach that could lead to prison overpopulation in the country and, in consequence, violate the human rights of people who use drugs.
According to the Annual Report on Human Rights of Nicaragua of the Nicaraguan Centre for Human Rights (CENIDH by its acronym in Spanish), the maximum capacity of the National Penitentiary System (SPN by its acronyms in Spanish) is 5,446 persons. Yet in 2014 there were 10,958 people in the penitentiary system. Also, according to the Annual Statistics Report 2015 of the Nicaraguan National Police (NNP), in that year there were 4,762 detainees because of drug offenses. Despite the fact that there is no data available to know how many of them were prosecuted and convicted, this amount of detainees could be explained, according to the 2016 International Narcotics Control Strategy Report (INCSR), “due to a shift in Nicaraguan counternarcotics strategy away from seizing drugs to disrupting and dismantling drug trafficking cells.”
The issue with focusing on dismantling drug trafficking cells is that there is a poor distinction between possession and trafficking because of thresholds. While in the legislation the possession of between five and 15 grams of marijuana is deemed a crime named “drug possession” (which is six months to three years of imprisonment and a fine, but if the marijuana seizure is more than 20 grams, is three to eight years of imprisonment and a fine), the crime named “drug trafficking” (which is five to fifteen years of imprisonment and a fine) does not have a specific threshold, which means many people who use drugs only for personal use, could be handed lengthy sentences on the false distinction that they’re trafficking. Moreover, according to the Report on the Drug Problem in the Americas by the Organization of American States (OAS), “the available evidence suggests that reducing penalties for possession of small quantities has little effect on the number of users but retains the benefit of reducing judicial caseloads and incarceration rates.”
In this sense, Article six of the American Convention on Human Rights, which is about the Right to Humane Treatment, says that “every person has the right to have his physical, mental, and moral integrity respected” and “punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners”. So, the nonviolent drug offenders who share cells with violent criminals have a difficult time seeking reform and social readaptation, while at the same time they may need to develop more violent behaviors in prison in order to survive.
This could be an issue because according to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), overcrowding, no separation of categories of prisoners such as untried and convicted, no clean water access, no adequate food, no conjugal visits, no minimum lighting and ventilation, and no clean and decent sanitary installations are all violations of the right to humane treatment. All of those negative conditions exist in Nicaraguan prisons and pretrial detention centres, where the detainees of nonviolent drug offenses usually share cells with violent convicted prisoners. The reason why this happens is that the SPN is overpopulated, so some convicted prisoners stay in those pretrial detention centres. Also, the Country Report on Human Rights Practice for 2015-Nicaragua (read here) says that “inmates [..] suffered from parasites, inadequate medical attention, frequent food shortages, contaminated water, and inadequate sanitation.”
In consequence, because of prohibitionist drug policy, prisons could be overpopulated with many convicts for nonviolent drug crimes. Therefore, maybe it is time to discuss different approaches towards drug trafficking and organized crime from a human rights and public health perspective instead of criminalizing nonviolent drug offenders.