Meet the Tunisian lawyer fighting to legalize hashish

Tuesday 19 March 201907:03 am

The small North African state of Tunisia certainly seems to be a trend-setter. More than eight years after it gave birth to the Arab Spring, a new movement has sprung up in the country calling for the legalisation of Hashish.

“We have been calling since 2017 for the lifting of the punishment of imprisonment for the consumers of Hashish, and today we ask for the legalisation of its production, distribution and consumption.” Those were the bold words of Qays Bin Halima, a Tunisian legal researcher and rights activist. In an extensive interview with Raseef22, we talked at length with Bin Halima to learn more about his movement, its aims, and the reason it is undertaking this push at a still sensitive moment of the country’s history.

The pro-legalisation movement, “No to imprisonment”, is composed of 13 civil society activists who have put forward a draft proposal for the legalisation and consumption of Indian Hemp in Tunisia, Bin Halima told Raseef22. The group has adopted the slogan “replace Law 52” – a law passed in 1992 which forbids the consumption of drugs such as Hemp and Hashish. Yet Tunisia’s own drug epidemic is significant. Out of a population of 11.5 million, an estimated 3.4 million are consumers of Hasish, Bin Halima says, including 100,000 that he says the “state is incapable of treating.”

“The consumer is a victim of his society and the victim of an unjust law that considers him to be a criminal, which he isn’t, and yet despite this he is thrown in jail”.

“The consumer is a victim of his society and the victim of an unjust law that considers him to be a criminal, which he isn’t, and yet despite this he is thrown in jail”, Bin Halima says. And in prison, the consumer “learns true criminality” – a risk which leads to greater potential dangers when they are eventually released. Bin Halima offers as proof the now (in) famous example of Marwan Al-Dowairi (previously known as Emino), a former Tunisian rapper who eventually joined ISIS: a “victim of the law,” according to Bin Halima.

Far from ideological considerations, the choice of Tunisia’s prisons also makes them a poor rehabilitative tool in pragmatic terms, because often consumption is, as Bin Halima asserts, “greater inside than out.” “The consumer is jailed for a joint, but becomes addicted to it behind bars,” he says.

Bin Halima is not a typical supporter of legalisation. He does not support it out of a desire for “personal liberty”, or opposing government oppression. Quite the opposite: he opposes consumption and views it as a serious crisis facing Tunisian society. Nonetheless, his appraisal of the problem lies in considering it a health issue, rather than a criminal offence.

He draws analogies with suicidal patients. “Do we execute him because he tried to kill himself?,” he asks. “The treatment should be healthy and psychological and we should ask him, ‘what’s wrong?’ ‘What problem are you experiencing?’ ‘Are there family issues?’ ‘Social problems?’ An addict is ill and not a criminal, and the right place for him is a rehabilitation centre, not prison."

In 2016, Human Rights Watch (HRW) released a report titled “All this because of a joint”, where it collected testimonies from former prisoners convicted on drug charges. The prisoners reported that they suffered beatings and insults during their detention and interrogation, and suffered mistreatment during urine tests.

Furthermore, the report also added that consumers were subject to house inspections without court warrants. Most grievously perhaps, after committing the “crime” of smoking a joint, the organisation added, smokers found themselves imprisoned “alongside dangerous criminals in packed cells”.  

Human Rights Watch’s position towards the consumption of drugs such as Hemp and Hashish is consistent worldwide, condemning any government interference with the practice. According to the organisation, the decision to consume such drugs is a “matter of personal choice - subject to privacy rights which are guaranteed by international law - and forms an inseparable part of respecting personal independence.”

It adds that detention, imprisonment and criminal records “leave results that may never leave a person throughout their life” – which it claims is an inappropriate and excessive reaction by a government against someone who did nothing more than engage in consumption for recreational purposes.

The organisation’s director in Tunis, Amna Guellali, said that the country’s “harsh drug laws” have left disastrous consequences for thousands of its citizens. Furthermore, such an “oppressive policy”, she added, did not conform with the democratic trajectory that Tunis has undertaken – which remains the “only free Arab country,” according to Freedom House’s “Global Freedom Indicator.”

The “paper party”

Two years ago, Bin Halima launched what he called the “paper party” – which he describes as a “satirical undertaking that mocks the [political] parties and politicians.” He took the step of forming the party after he had grown exasperated, offering us his ‘assurance’ that his movement would win 217 seats in parliament. Such is his conviction that legalising weed would help undermine trafficking and reduce from its consumption, as was the experience in numerous European states (25% of the budget of the Netherlands, he notes, comes from selling Hemp).

Nonetheless, the “paper party” is not licensed by Tunisia’s Interior Ministry, and is instead a lobbying movement composed mainly of activists. Adopting the name “party” in its title was an attempt to gain the attention of parliamentarians, Bin Halima says, but “no one adopted the idea and there were those who refused to even sit with us”.

However, perhaps surprisingly, Bin Halima claims that the main obstacle was not a lack of conviction on the part of the parliamentarians (“there was no problem in convincing them of the benefit”, he says), but the lack of political courage necessary to adopt the idea and put forward the relevant legislation – which he attributed to the parliamentarians’ “fear of losing the support of their constituents”.

Thus, Bin Halima says he was left with no option but to set up the “paper party”, which he aims to take into the country’s next parliamentary elections. The significance of the “paper” segment of the title, meanwhile, lay in its multi-purpose utility - for he tells us that it could alternately refer to (and not exclusively): “the red paper [i.e. card] that we hold up in the face of the parties that have failed the revolution since its beginning and have led the country to the brink”; “the paper money that no longer has any value because of the abject economic failure of the current government”; “the white paper on which a new social contract will be written”, and finally “the paper which the voter will put in the ballot box to decide the fate of the nation”.

Bin Halima believes that legalising Hemp would automatically reduce its consumption - since he follows the commonly-made argument on the subject, “everything forbidden is desired and vice versa” – and consumption would also be subject to greater societal monitoring as well as changes in treatment.

He rejects the fears that legalising drugs such as Hemp and Hashish would “destroy Tunisian youth,” arguing that “the state’s treatment of the phenomenon and its application of a penal deterrent policy, which was pushed since 1992 by former Tunisian President Ben Ali, is what has destroyed them.”

According to Bin Halima, legalisation would also effectively combat unlicensed production and trafficking - whilst simultaneously “bringing in huge financial returns which will cause a paradigm shift in Tunisia.” Such returns could be allocated to awareness campaigns launched in institutes and junior (middle) schools (with Hashish consumption in Tunisia sometimes beginning as early as the age of eleven).

The campaign also aims to launch sporting, cultural and recreational activities, not least since according to a study conducted by a campaign team, the absence of recreational avenues as well as excessive periods of empty leisure time constitute one of the key drivers of consumption. Ultimately, he concludes, “we will aim to end the factors that drive consumption.”

I was against legalisation

Bin Halima said he previously opposed legalisation. It was however after he embarked (along with his students) on an 18-month study of drug laws – examining them within the framework of penal law and the legal sciences in which he specialises - that he came to the conclusion that legalisation offered the most effective method for combatting drug consumption and ending trafficking, which he calls the “paramount goal”.

Nonetheless, if such a policy were to create an economic revolution, then in his words, “why not?” Bin Halima further points out that the Office of the United Nations has previously urged the signatories of the 1988 agreement to revise their criminalisation of hemp.

“Government incapacity requires civil society support”

According to Bin Halima, “If the government is unable to find solutions which can ameliorate the consumption phenomenon, then it is our duty as the civil society to help it find the best solution”. He points to the proposal of Siliana Bis, which was taken forward by his lobbying coalition, and which entails the creation of an exceptional legislative framework for the production of Indian Hemp in all its stages – growing the plant, collecting and converting the yield, and finally selling it for domestic consumption and/or exporting it from the province of Siliana (North West Tunisia).
“If the government is unable to find solutions which can ameliorate the consumption phenomenon, then it is our duty as the civil society to help it find the best solution”.

This he believes is a model template which would allow the drug’s deployment in medicine, production as well as recreation. Its medical uses have been demonstrated in “advanced countries such as the United States and Canada”, he notes, notably in pain-management, combatting depression and killing numerous forms of cancerous cells.

Explaining the choice of the province of Siliana specifically for Hemp farming, Bin Halima elaborates: “it is a marginalised and isolated province with few resources”. Such an experiment, if successful, would however be expanded to the entirety of Tunisia, he states.

Meanwhile, Bin Halima has a somewhat philosophical response to those who accuse his lobbying coalition of “insanity”: “Rationality and insanity are relative matters tied to the awareness of peoples and their time”. If someone in the stone age suggested the idea of flying, he says, they too would have been accused of “insanity” - but are undoubtedly the sanest today. He adds that there have always been individuals who have been ahead of their time, and it is their “crazy” ideas which drove their nations and peoples to advance and prosper.

Legalising hemp is a “reasonable idea” which would help reduce the gap with the “advanced” nations, he says. According to the Tunisian Justice Ministry, 7,452 individuals received drug-related prison sentences (From 1992 until December 2015) including 7,306 men and 145 women. Seventy percent of those were convicted – approximately 5,200 individuals – for consuming or possessing Indian Hemp or Hashish. Official statistics further showed that 28 percent of Tunisia’s total prison population were sentenced for drug offenses.

Tunisia’s Law No. 52 (passed in 1992) proscribes a compulsory minimum sentence of one year for consumption or possession of any illegal drug, including Indian Hemp. A second offence earns a further minimum of five years’ imprisonment (even if found in possession of a single joint). Furthermore, Tunisia’s courts do not have the authority to order alternatives to imprisonment – such as community service or other administrative punishments. However, following efforts by civil society and rights activists to repeal Article 52, the Tunisian government agreed to a modification of the law in December 2015, which eventually ratified the revised bill in April 2017. The revised law gave judges the discretion to order more lenient sentences, especially for first-time offenders. Nonetheless, the revised law has been heavily criticised as insufficient amongst various quarters, who have continued to call for the text’s entire elimination.

A study conducted in 2013 found that 50-70 percent of students between the ages of fifteen and seventeen had some form of experience with drugs, whilst 75-80 percent accepted the practice as “normal”.

Along with his students and a group of judges and lawyers, Bin Halima says that he was personally behind the efforts to amend the law in 2017 – formulating a draft bill which was eventually adopted by a parliamentary bloc. Whilst he concedes that they “weren’t able to reach the ceiling of our demands” at the time, Bin Halima nonetheless says that the revised law was the best solution at the time; furthermore, it has since not only resulted in lighter prison sentences (or even none in many cases), but helped to change mentalities and especially judicial attitudes towards dealing with the issue. 

Nonetheless, the scale of the challenge facing Bin Halima and others is substantial. A study conducted in 2013 by Munira Qarbuj, an administrative medical director for Tunisian schools and universities, found that 50-70 percent of students between the ages of fifteen and seventeen had some form of experience with drugs, whilst 75-80 percent accepted the practice as “normal”.

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