An
Act to establish the National Drug Law Enforcement Agency to enforce laws
against the cultivation, Processing, sale, trafficking and use of hard drugs
and to empower the Agency to investigate persons suspected to have dealings in drugs and other related
matter.
(1989
No. 48, 1990 No. 33, 1992, No. 15, 1995, No. 3 1999, No. 62)
(29th
December, 1989)
(Commencement)
PART
I
Establishment of National
Drug Law Enforcement Agency Act
ARRANGEMENT
OF SECTIONS
1.
Establishment of the National Drug Law Enforcement Agency
2.
Composition and proceedings etc., of the Agency
3.
Functions of the Agency
4.
Special powers of the Agency
5.
The secretariat, appointment of secretary and other staff of the Agency
6.
Application of the Pensions Acts.
7.
Establishment of special units etc.
8.
Special duties of the units
9.
Training programme.
10.
Power of the Attorney – General of the Federation to give directives to the
Agency.
PART
II
Offences
11.
Importation, etc., of cocaine, heroin or similar drugs, etc.
12.
Occupier unlawfully permitting use of premises.
13.
Offender being armed
14.
Conspiracy, etc.
15.
Unlawful assumption of character of officer of the Agency
16.
Tampering with drug
17.
Escape or permitting escape
18.
Preventing a person from attending as a witness.
19.
Unlawful possession of cocaine, etc.
20
Offences in relation to drug abuse and penalties .
21.
What constitutes exportation etc.
22.
Offence of exportation of narcotic, drugs, etc
23.
Attempts
24.
Offences by bodies corporate
25.
Commercial carrier
26.
Jurisdiction, etc.
27.
Forfeiture after conviction in certain cases
28.
Forfeited property
29.
Foreign assets
30.
Forfeiture of passport
31.
Property subject to forfeiture
32.
Further provisions as to forfeiture
33.
Seizure of property
PART
III
Forfeiture
of assets of persons arrested for offences under this Acts
34.
Investigation of assets and properties of persons arrested for an offence under
this Act
35.
Disclosure of assets and properties by an arrested person, etc.
36.
Interim forfeiture order.
37.
Final order
38.
Final disposal of forfeited property
39.
Offences in relation to forfeiture orders
40.
Consequence of an acquittal in respect of assets and properties
41.
Power to search, seize and arrest
42.
Freezing order on banks
43.
Application of Act to certain persons.
PARTIV
Application
of certain enactments
44.
Application of certain enactments
45.
Information to be supplied by Nigerian diplomatic mission
PART
V
Miscellaneous
and supplemental provisions
46.
Fund
47.
Accounts and audit
48.
Annual report
49.
Obstruction of Agency or authorized officers
50.
Regulations
51.
Repeal
52.
Interpretation
53.
Short title
SCHEDULES
FIRST
Supplementary SCHEDULE
Second
scheduleThird Schedule
Assets
Declaration Form
Functions / Purposes of the
National Drug Law Enforcement Agency Act are subsumed;
The
Agency has the responsibility for:-
a. The enforcement and the due administration of
the provisions of this Act;
b. The coordination of all drug laws and
enforcement functions conferred on any person or authority, including Ministers
in the Government of the Federation, by any such law:
c.
Adoption of measures to identify, trace,
freeze, confiscate or seize proceeds derived from drug-related offences or
property whose value corresponds to such proceeds;
d.
Adoption of measures to eradicate
illicit cultivation of narcotic plants and to eliminate illicit demand for
narcotic drugs and psychotropic substances with a view to reducing human
suffering and eliminating financial incentives for illicit traffic in narcotic
drugs and psychotropic substances.
e.
Taking such measures which might require
the taking of reasonable precautions to prevent the use of ordinary means of
transport for illicit traffic in narcotic drugs including making special
arrangements with transport owners;
f.
Adoption of measures which shall
include coordinated preventive and repressive action. Introduction and
maintenance of investigative and control techniques.
g. Adoption of measures to increase the
effectiveness of eradication efforts.
h.
The facilitation of rapid exchange of
scientific and technical information and the conduct of research geared towards
eradication of illicit use of narcotic drugs and psychotropic substances.
i.
Taking measures for the early
destruction or disposal of the narcotic drugs and psychotropic substances which
have been seized, confiscated or forfeited
j.
Facilitation or encouragement of the
presence or availability of persons, including persons in custody who consent
to assist in investigations or participate in proceedings relating to narcotic
drugs and psychotropic substances:
k.
Enhancing the effectiveness of law
enforcement to suppress illicit traffic in narcotic drugs and psychotropic
substances.
l.
Establishing, maintaining and securing
communication to facilitate the rapid exchange of information concerning
offices and improving international co-operation in the suppression of illicit
traffic in narcotic drugs and psychotropic substance by road, sea and air
THE
FOLLOWING ARE THE OFFENCES ALONG SIDE
WITH THEIR PUNISHMENTS PROVIDED;
11.
Importation, etc., of cocaine, heroin, or similar drugs etc. Any person who, without lawful authority:-
a.
Imports, manufactures, produces,
processes, plants or grows the drugs popularly known as Cocaine. LSD, heroine
or any other similar drugs shall be guilty of an offence and liable on Conviction
to be sentenced to imprisonment for life: or
b.
Export, transports or otherwise traffics
in the drugs popularly known as cocaine, LSD heroine or any other similar drugs
shall be guilty of an offence and liable on conviction to be Sentenced to
imprisonment for life.
c.
Sells, buys, exposes or offers for sale
or otherwise deals in or with the drugs popularly known as cocaine. LSD heroine
or any other similar drugs shall be guilty of an offence and liable on conviction
to be sentenced to imprisonment for life: or
d.
Knowingly possesses or uses the drugs
popularly known as cocaine. LSD heroine or any other similar drugs by smoking
inhaling or injecting the said drugs shall be guilty of an offence on conviction
to imprisonment for a term not less than fifteen years but not exceeding 25
years.
12. Occupier unlawfully permitting use of
premises. Any person, who
being the occupier or is concerned in the management of any premises,
unlawfully permits or causes the premises to be used for the purpose of
storing, concealing processing or dealing in the drug popularly known as
cocaine. LSD, heroine or any other similar drug shall be guilty of an offence
under this Act and liable on conviction to be sentenced to imprisonment for a
term onto exceeding 25 years.
13.
Offender being armed. Any person who is unlawfully
concerned in the storage, custody, movement, carriage or concealment of the drug popularly known as
cocaine, LSD, heroine, or any other similar drug and who, while so concerned, is armed with any
offensive weapon or is disguised in any way, shall be guilty of an offence under this Act and liable on
conviction to be sentenced to imprisonment for life.
14.
Conspiracy, etc. Any person who:
a.
Incites, promises or induces any other
person by any means whatsoever to commit any of the offences referred to in
this Act: or
b.
Conspires with, aids, abets, counsels, attempts to commit or is an accessory to
any act or offence referred to in this Act shall be guilty of an offence under
this Act and liable on conviction to be sentenced to imprisonment for a term
not less than fifteen years and not exceeding 25 years.
15. Unlawful Assumption of Character of officer
of the Agency
Any
person who, with intent to deceive, unlawfully assumes the name, character, or
designation of an officer of the Agency shall be guilty of an offence under
this Act and liable on conviction to be sentenced to imprisonment for a term
not exceeding ten years.
16.
Tampering with drug
Any
person who unlawfully removes, conceals, destroys or in any way tampers with
the drug popularly known as cocaine, LSD, heroine or any other similar drug
seized from any person or otherwise in the possession of the Agency or any
authorized person shall be guilty of an offence under this Act and liable on
conviction to be sentenced to imprisonment for a term not exceeding 25 years.
17.
Escape or Permitting Escape
Any
person who
a.
Being in lawful custody, escapes or
b.
Aids any person in lawful custody to escape: Shall be guilty of an offence
under this Act and liable on conviction to be sentenced to imprisonment for a
term not exceeding seven years.
18.
Preventing a Person from
Attending as a Witness
Any
person who willfully prevents or attempts to prevent any person who has been
duly summoned to attend as a witness before the Federal High Court from
attending as a witness, or from producing anything in evidence pursuant to the
subpoena or summons served on him shall be guilty of an offence under this Act
and liable conviction to be sentenced to imprisonment for a term not exceeding
seven years
19.
Unlawful possession Cocaine, etc.
Any
person who, without lawful authority, knowingly possesses the drugs popularly
known as cocaine, LSD, heroine or any other similar drugs shall be guilty of an
offence under this Act and liable on conviction to be sentenced to imprisonment
for a term not less than fifteen years and not exceeding 25 year
20.
Offences in Relation to Drug
Abuse and Penalties
1.
Any person who, without lawful authority
(the proof of which shall lie on him) commits any of the following offences,
that is to say
a.
Engages in the production, manufacture,
extraction preparation, offering for sale, distribution, sale, delivery on any
terms whatsoever, brokerage, dispatch, dispatch in transit, transportation,
importation or exportation of any narcotic drug or any psychotropic substance
contrary to the provisions of the 1961 Convention and its Protocols, or the
1971 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
substances 1989.
b.
Engages in the cultivation of opium,
poppy, coca bush or cannabis plant for the purpose of the production of
narcotic drugs contrary to the 1961 convention.
c. Has in his possession or engages or
purchases any narcotic drug or psychotropic substance for the purpose of any of
the activities enumerated in paragraphs (a) of this subsection.
d. Engages in the acquisition, possession or
use of property knowing at the time of acquisition, possession or use that such
property was derived from any offence referred to in this section
e. Engages in the possession of equipment or
material or substance listed in the second schedule of this Act knowing that
such equipment, materials or sub-stance are to be used in or for the illicit
cultivation, production or manufacture of narcotic drugs or psychotropic
substances.
f. Engages in the manufacture, transportation
or distribution of equipment, materials or of any substance listed in the
Second Schedule to this Act knowing that such equipment, material or substance
are to be used in or for the illicit cultivation, production or manufacture of
narcotic drugs or psychotropic substances;
g.
Engages in the management, organization
or financing of any of the offences under paragraphs (a) to (f) of this
subsection
h.
Engages in the conversion or transfer to
property knowing that such property is derived from any offence under this
subsection
i.
Engages in the concealment or disguise
of the true nature, source, location, disposition, movement, rights with
respect to or ownership of property knowing that such property is derived from
any offence referred to in this section shall be guilty of an offence under
this Act and subject to the provisions of subsection (3) of this section, be
liable on conviction to the penalties provided in subsection (2) of this section.
2. The penalties for offences under subsection
(1) of this section shall
a. In respect of an offence under paragraphs
(a), (b), (d), (e), (f), and (h), be imprisonment for life
b.
In respect of offences under paragraphs
(c), (g) and (i) be imprisonment for a term not less than fifteen years and not
exceeding 25 years.
3.
The Federal High Court before whom an
accused in being convict may in addition to the punishment prescribed in
subsection (2) of this section, make an order requirement an offender to
undergo measures such as treatment, education, aftercare, rehabilitation or
social reintegration.
4.
Notwithstanding subsections (2) and (3)
of this section, the Federal High court before whom a minor is being convicted
may, in an appropriate case, make an order as the circumstances may determine.
a.
Either as an alternative to conviction
or punishment: or
b. For treatment, education, aftercare,
rehabilitation, social integration of the offender
21. What constitutes exportation, etc.
1. A person shall be deemed to have exported a
narcotic drug or psychotropic substance under this Act. If he brings to or
deposits the narcotic drug or psychotropic substance concerned at any time at
any customs area, customs station. Customs airports customs station, customs
airports customs port or any other customs point generally.
2.
A person shall be deemed to commit an
offence under this Act if;
a.
He actually does the act which constitutes the offence; or
b.
He does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence; or
c.
He aids another person in committing the offence; or
d.
He counsels or procures any other person in committing the offence; or
e.
He counsels or procures any other person to commit the offence in which case he
may himself be charged with committing the offence or with counseling or
procuring the commission of the offence.
CRITICS ON THE ACT
With
regards to the appointment of the chairman of this agency, in which the degree
of his qualification or proficiency is not always determined upon
recommendation by the attorney -General before the president does it, conscientious
effort should be taken to consolidate the position of the head of the agency
bearing in mind his onerous assignment through merit standard.
Thus
section 9, itemized the cardinal roles of which each special units is
responsible, the prosecution unit, often times are filled with ordinary
educated persons and half- baked lawyers who are not grounded in the proceedings
of litigations. Hence, this could warrant unscrupulous deviant to hook off in
spite of their misdeeds
In
relation to the general investigation
and asset unit as provided in section 9 The consideration of antics and pranks
exhibited by these ill-desired people, enough room are created which let
culprits hook off easily. this is so because of the lack of instruments that
could at ease detect law breakers under this Act .On the same vein, the issue
of in adequate training ground and facilities which the officers could use to
control and manage the modern challenges facing the agency. The uprising of
crimes in the society especially as regards to drugs mis –management needed a
radical sophiscated style so as to address the anomalies ravaging the agency.
APPRECIATION OF THE
ACT…
Basically,
it is not worthy to emphatically affirm that the Act has really done well
irrespective of the lacuna therein. It
has over the years fought to curb the menace of drug traffickers at the bud. In
August 2012, the chairman in his public statement aforesaid ‘ I commend the un-relentless
effort of the judiciary in ensuring the dispense of justice especially matters
of our concern. He further said “ we have prosecuted about 742 cases in
relation with the agency. Similarly, a case in point buttressed the unalloyed
effort of the agency in empowering a social order. JOHN TIMOTHY V.
FEDERAL REPUBLIC OF NIGERIA [SC. 129/2007] A judgment of the Nigerian Supreme
Court
CONSTITUTIONAL LAW – National Drug
Law Enforcement Act – measures up as an existing law which the National Assembly
could legislate and has co-oted as its enactment .
Précis
In
a summary trial after his plea of guilty the Appellant was tried, convicted and
sentenced by the Federal High Court to a jail term for the offence of importing
cocaine without lawful authority, contrary to and punishable under Section 10
(a) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation
1990.
The
appellant was apprehended at the Nnamdi Azikiwe International Airport by
National Drug Law Enforcement Agency on arrival from Amsterdam’s Schiphol
Airport. An initial search of his bag by NDLEA officials revealed nothing. He
was then taken into the NDLEA office and directed into the toilet, where he
moved his bowels and egested expertly enwrapped substances which were packaged
in his presence and sent to NDLEA Drug Laboratory for analysis. A Drug Analysis
Report was subsequently issued and the substance recovered from the appellant
was found to be cocaine. The appellant voluntarily wrote two confessional
statements confirming that the substances were cocaine.
At
his arraignment, the appellant pleaded not guilty, but changed his plea to
guilty on the subsequent adjourned date and was re-arraigned. In the light of
his plea of guilty, the exhibit tendered, the confessional statements and the
recovered drug, the trial court found the accused person guilty as charged and
convicted and sentenced him to a jail term.
The
appellant appealed to the court of appeal, which dismissed his appeal as
lacking in merit.
The
Appellant further appealed to the Supreme Court. His contention at the Supreme
Court was, inter alia, that the omission of the word ‘‘Act’’ from the
citation of the Law under which the appellant was charged made it non-existing
law. The citation of the Law in in the charge read ‘’National Drug Law
Enforcement Agency Cap 253 Laws of the Federation 1990’ when it ought to have
read ‘’National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation 1990.’’ It was also argued on
behalf of the appellant that the trial court ought not to have convicted the
appellant on his plea of guilty in the absence of an absolutely unambiguous
certitude that the cocaine tendered in court by the prosecution was the same as
was recovered from the appellant. He said a possibility exists that the cocaine
recovered from appellant was tampered with or substituted with something else,
and more so as there was a difference between the quantities of what was
recovered and what was tendered. Finally, appellant’s counsel argued that the
plea and trial of the appellant was a nullity by reason of non-compliance with
Section 218 of the Criminal Procedure Act because, according to him, there is
no record that the charge read and or explained to the accused person; and
that, hence as the charge is not shown to have been understood by the
appellant, a miscarriage of justice had been thereby occasioned. The Supreme Court
was urged to uphold the appeal.
The
apex court affirmed the Court of Appeal’s finding on the said omission that
same was an irregularity that is not fatal and did not prejudice the appellant
as to occasion a miscarriage of justice to the appellant or nullify his trial
and conviction.
ISSUES [as formulated by the Appellant
and adopted by the Supreme Court]
1. Whether the charge against the appellant was
based on an existing law and whether he can be convicted on such.
2.
Whether it can be said that the exhibit
tendered in court (cocaine) has been proved to be the same that was recovered
from the appellant
HELD,
dismissing the appeal
on the following basis;
1. An existing law is a law that has not been
repealed and has been adopted by the National Assembly as its own Act, or a
House of Assembly after necessary modifications, where necessary, to bring it
into conformity with the provisions of the constitution.
2. The National Drug Law Enforcement Act was
made by the Federal Military Government as a Decree. It came into force on the
29th day of December 1989. It has been modified by the National
Assembly for the purpose of bringing it into conformity with the provisions of
the Constitution. It is a law which the National Assembly could make, and it
has been accepted by the National as its Act. It is existing law.
3.
The charge against the appellant was
based on an existing law, and the conviction was very much in order, since he
was convicted under Section 10 of the NDLEA Act.
More
so, the agency had made a wave in the circumstances of nabbing drug
traffickers. In January 2012. The agency officially reported cases of drug
traffickers arrested and convicted for
the same reason of contravening the law..they had led how some were nabbed with
cannabis at airport, sea port and all
over the borders where they work in hand with the Nigeria custom service to salvage the malaise
. the chairman Gaide was stating how
they transferred 92 bn and 72 cases to the EFCC body as both in togetherness
promote free corrupt Nigeria state.
THE AGENCY EMPLOYS
THESE WAYS IN ACHIEVING THEIR GOALS…
Section
4 of the act empowers the agency to
cause investigation of any sort as to whether any person has infringe
any of the offences created by the act as relate either to the
person’s proceeds, properties or his life style if suspected of unable
to account for his source of income .Thus,
Attorney – General may give specific or general directive on any matter which
ought to be adhered.
Section
7 proviso made an explicit division of labour wherein :
a. General and Assets investigation unit
bases on their painstakingly
investigations
b.
Prosecution unit, they dwells
easily on litigation process and procedure to ensure smooth working of the
agency
c.
Counseling .focuses on rehabilitation, seminar and
symposium exercise to ensure its effectiveness.
Section
9 causes establishment, special programme to train officers as it regards
security challenges facing of the body, like the best tactics to fish out the perpetrators’
in order to realize the objective of the
act. However, the agency observes the directive s of the attorney- general
strictly in order to enthrone rule of law. Finally other relevant agencies like;
EFCC, Anti-graft laws, money laundering Act and others aid them in
stabilizing the system .Hence ,with
these stated , the agency could possibly realize it’s relevant things i
consider that the act should include or
do away with…are as stated.
In
my humble candid opinion, in considering the purpose of this Act, which is tend
to avoid hitch-free corrupt Nigeria society. In punishing offenders , the
concept of reform or rehabitation of offenders was not
considered, in that, wherein because of
the nature, background or impaired condition of the accused he did not know nor
had a reasonability of knowing the act
or the substance which he committed or is in possession of, at that period when the
offence was committed due to certain circumstances. I m of the opinion that, it
should be a punitive or deterrence measure in punishing offenders as regards
aforementioned offences. In addition to
that, punishments upon which offenders
in this act tend to be drastic and tend not to promote justice to the core for
the single reason of given culprits a second chance and most of it all a fair
trial in litigations.