Colombia's drug debate

The Colombian Senate once again rejected a proposal to legalize marijuana. A look at Colombia's ambiguous laws on drug use and the current debates.

On December 12, the Colombian Senate voted 46 to 40 to reject a proposal to legalize and regulate cannabis, the second defeat for cannabis legalization in six months, after the Senate failed to approve a similar proposal in June. The vote came amidst controversy over a presidential decree which repealed fines imposed for drug use and possession.

Colombia’s ambiguous drug laws

Colombia’s drug policy is legally ambiguous. In 1994, the Constitutional Court decriminalized the use and possession of limited quantities of drugs for personal use—the so-called dosis mínima (minimum dose), which is 20 grams of marijuana, 5 grams of hashish marijuana, 1 gram of cocaine and 2 grams of methaqualone. Since then, the Constitutional Court has consistently protected the fundamental rights of drug users, as long as it does not affect the rights of other people; and has reiterated that drug use is a public health rather than a criminal issue. It has also ruled that legislators can ban drug use and possession in circumstances where it is inappropriate and socially harmful. On its side, the Supreme Court has ruled that regular users and addicts may carry with them drugs in quantities greater than the dosis mínima as long as it is for their own personal use. This de facto decriminalized dosis de aprovisionamiento (supply dose) has not been legally quantified, creating a legal grey area.

In contrast, successive governments have tended to favour more repressive approaches to drugs, in line with public opinion. In 2009, Congress adopted a constitutional amendment modifying article 49, introduced by President Álvaro Uribe’s administration, which prohibits the possession and use of narcotic or psychotropic substances without a medical prescription, and provides for preventive and rehabilitative measures and treatments for drug users, requiring their informed consent. In the Constitutional Court’s interpretation, this provision does not criminalize the dosis mínima but rather protects the right to health of drug users by ensuring access to the treatments they require. In 2011, a law removed the phrase “except for the provisions regarding the dose for personal use” from the penal code article on drug trafficking and possession (article 376). However, in 2012, the Constitutional Court reiterated the decriminalization of the dosis mínima and ruled that criminal sanctions do not apply for carrying a dosis mínima for personal use.

In 2016, the national police code (Law 1801 of 2016) banned the use of drugs and alcohol in public places, punishable by a fine and the destruction of the drugs. Fulfilling a campaign promise, in October 2018 President Iván Duque signed Decree 1844, regulating the police code, allowing the police to confiscate and destroy the dosis mínima of drugs carried by people in public places. The then-justice minister confusingly said that if a person questioned by the police could prove that they were an addict, like by calling their parents, the drugs would be returned to them (one can imagine how messy this would be in practice). Duque argued that his decree would fight micro-trafficking of drugs and go after low-level drug dealers (colloquially known as jíbaros) in the streets. Critics denounced the decree as unconstitutional and said it would punish low-level users rather than seriously tackle rising drug use and criminal trafficking. In the 2018 election, Duque had promised to ban, but not criminalize, the dosis mínima, arguing that drug dealers hid behind it to continue trafficking.

In 2019, the Constitutional Court struck down the ban on the use of drugs and alcohol in public places, ruling that this blanket ban was too unreasonable and disproportionate, violating the right to autonomy and “free development of personality.”

In 2019, Congress adopted a new law (Law 2000 of 2019) which banned the use and possession of drugs, including the dosis minima, in and around schools, parks, sports centres, common areas of residential buildings and condos and in other public places as defined by municipalities, punishable by a heavy fine and the destruction of the drugs. In May 2023, the Constitutional Court conditionally upheld the constitutionality of this law, with the restrictions on possession not applying when the drugs are for personal or medicinal use, and that restrictions on consumption must be regulated by authorities to protect children’s rights on the basis of reasonableness and proportionality. The Court ordered the government to issue a protocol for the application of its decision. In other words, the Court agreed that local authorities may ban drug use and possession in certain public places, to protect children’s rights, but these restrictions must be focused and consider circumstances of time, manner and place.

Petro’s paradigm shift, in rhetoric

The current administration wants to change the paradigm on drug policy. Gustavo Petro has repeatedly said that the ‘irrational’ war on drugs has failed and that the war on drugs has produced a ‘genocide’ in which Colombians and Latin Americans have been the main victims. He has criticized the hypocrisy of the United States (and the wealthy ‘global north’ in general) in leading the war on drugs while being the largest market for illegal drugs (Juan Manuel Santos, in 2016, had also voiced a similar view), claiming that the US’ drug policies have killed over a million Latin Americans and incarcerated millions of African-Americans and Hispanics in the US while never arresting ‘Manhattan yuppies’. Petro has tried to build a regional bloc to support his calls for a new global drug policy, and organized a regional conference on drugs in Cali in September, to mixed results. His main ally has been Mexican President Andrés Manuel López Obrador.

However, like on so many other issues, Petro has not really moved past the rhetoric and has few concrete proposals. The president has largely boasted the results of a tougher focus on interdiction and drug seizures, which has become the government’s main indicator in its drug strategy.

Only in September 2023 did the Ministry of Justice present a new drug policy, which seeks to focus on “life, the environment, health and wellbeing” and address the structural causes of the problem. The policy approaches drug use and addiction from a public health and human rights approach, with strategies including prevention, harm reduction, access to treatment, inclusion and social protection of drug users and reducing stigmas associated with drug use. The policy also makes clear that the government supports the regulation of adult-use cannabis. Actually implementing this policy will require legal changes, money, political will and competence at implementing policy on the ground.

The decree of discord

On December 7, Petro signed Decree 2114, which repealed Duque’s Decree 1844 of 2018. In other words, it repeals the police’s power to impose fines and sanctions on people carrying the dosis mínima. Duque’s decree was already legally wobbly following the Court’s 2019 and 2023 sentences. However, in 2020, the Council of State had upheld the validity of the decree, but conditioned its application to drug possession outside the intimate sphere (affecting others or when used for sale or distribution) and limited the police’s powers to cases in which they have evidence to suspect that the drugs are being used for purposes other than personal use. Therefore, Petro’s decree largely harmonizes regulations with current constitutional jurisprudence.

Petro’s decree created a huge furor, fed by a lot of misinformation (or disinformation) by the media and politicians.

Many news publications and politicians falsely claimed that the Petro’s decree had repealed all sanctions for sale and distribution of prohibited drugs. For example, right-wing Semana, in their classic sensationalist style (attention!), announced that the government had repealed a decree prohibiting the possession, exchange, sale and distribution of illegal drugs and that law enforcement therefore found itself ‘disarmed’. In another ‘article’, they claimed that Petro’s decree would favour “drug micro-trafficking in every city”, with no evidence to support such a bold prediction. Even more respectable publications like El Espectador initially misleadingly claimed that the decree repealed sanctions for sale and distribution. El Espectador’s publisher Fidel Cano apologized in a video for misunderstanding the decree (Semana has not corrected itself). Part of the confusion stems from the very long and legalistic title of Duque’s repealed decree, even though the text of the repealed decree only includes the words porte and tenencia (carrying and possession).

Opposition politicians jumped at the opportunity to attack the government with one of its best lines of attack: that it is weak on crime and friendly with criminals like drug dealers, leaving honest citizens vulnerable to criminality and the horrors of drugs. Iván Duque said that his decree sought to get drugs off the streets, make public places safe and attack jíbaros, not criminalize consumers, and did the media rounds to say that its repeal would benefit criminals and hinder the police’s ability to fight drug dealing. Álvaro Uribe claimed that legalizing recreational drug use and eliminating police controls was a step towards generalizing dysfunctional families and leading young people to anxiety and annihilation. The Conservative Party announced they would propose legislation to reinstate the repealed decree. Attorney general Francisco Barbosa, increasingly behaving like an opposition politician in his final weeks on the job, called on Petro to “stop offending” the people (Petro fired back telling him to arrest drug traffickers).

Mayors have also expressed concerns about Petro’s decree. The National Federation of Municipalities asked the government to clarify and modify the decree. The right-wing mayor-elect of Medellín, Fico Gutiérrez, claimed the decree was, in practice, a “legalization of micro-trafficking” and warned that mayors would need to face an increase in micro-trafficking and urban violence as families and children are left defenceless. Jaime Beltrán, the right-wing mayor-elect of Bucaramanga known for his hardline campaign against criminality, called Petro’s decision unacceptable and vowed to ensure that parks and public places don’t become marihuanódromos. While their concerns may be valid in this case, mayors like symbolic ‘victories’ and easy targets (low-level drug users, addicts and local drug dealers) to look tough on crime rather than target criminal structures and larger drug trafficking operations.

The Colombian right’s arguments against drugs are very moralistic, focused on the risks posed by drugs to children, teenagers and families. Punitive populist measures, like Duque’s decree, remain popular because public opinion is still quite conservative on drug-related issues: in the latest Invamer poll, 63% oppose legalizing recreational marijuana and 78% oppose legalizing drug use and trafficking.

On the defensive, Petro turned to his favourite outlet—Twitter—to attack his critics. He said that journalists and politicians should just open the internet and read to realize how much disinformation they’ve spread. In somewhat cruder terms, he told Fico the same thing and said that the Constitutional Court had said that local authorities may determine places in which drug use is banned. He repeated ad nauseam that decree 1844 was unconstitutional (which is not technically true).

The government tried to make clear that the decree only repeals fines imposed for possession of the dosis mínima, and that all other legislation criminalizing the sale and distribution of drugs remains in place. Justice minister Néstor Osuna and defence minister Iván Velásquez said that the new decree seeks to adjust regulations to judicial decisions of the highest courts.

While its communication has been clumsy, the government is right. The repealed decree only adopted police sanctions for drug possession in public places. Some journalists and politicians are acting as if decree 1844 was the only legal tool to fight against drug trafficking, drug abuse and other drug-related crimes. Yet, laws banning drug use in certain places remain on the books, and the Constitutional Court’s 2023 sentence made clear that the national government and local governments may adopt regulations banning drug use in public places as long as they are reasonable and proportional. The sale, distribution and trafficking of drugs are criminal offences under the penal code, as the highest courts have reiterated countless times (they’ve also made clear that the dosis mínima is only decriminalized when it is for personal use). Unlike what some politicians have said, the police hasn’t lost its authority to impede the sale of drugs on the streets. Obviously, micro-trafficking is not legalized. If families are destroyed and young people are annihilated, as Uribe claimed, it won’t only be because of a single decree. The alarmist panic created by some journalists and politicians is irresponsible and not conducive to a mature debate about drug use.

Petro has defended his decision by saying that it will avoid the criminalization of drug users and reduce police arbitrariness. In a tweet, he said that it will end “the fines and racketeering it involves” and the “beatings, extortion and even abuse of women” by police. Petro accused the Duque and Uribe administrations of depicting the “neighborhood youth” as an internal enemy but that this “war against youth” is over and the police must regain the trust of young people.

Experts agree that repealing the decree will help limit police arbitrariness. The actual impact of decree 1844 was unclear, except (as was to be expected) the number of infractions imposed by police increased significantly. Neither the police nor the previous administration ever communicated any results from the application of the repealed decree. According to Temblores, a human rights NGO, in 2019 the police imposed over 165,000 unjustified infractions, 89% of which were for people carrying narcotics in public places (over 60% carried less than a gram). These police activities generated confrontations between police and drug users, even those who were not ‘problematic’ users or causing public disturbances. The allowed for profiling and police searches to seize even tiny quantities of drugs, in some cases leading to abuse and corruption. This diverted police attention and resources away from more important criminal activities like drug production and trafficking. Duque’s decree did little, if anything, to fight micro-trafficking, protect children or reduce drug use. Seizing a small quantity of drugs, even from a dealer, does little to reduce drug trafficking and may even have the adverse effect: if the risk for consuming and carrying drugs is higher, prices increase and criminal profits increase.

Legalizing marijuana

The legal status of recreational marijuana is ambiguous. It is, with all other drugs, prohibited by law and the constitution, but decriminalized for personal use in limited quantities since 1994.

Medical marijuana was legally regulated in 2015 and 2016. Although the use of cannabis for scientific or medical purposes had been allowed since 1986 (in the narcotics law), it was only regulated by a decree signed by Juan Manuel Santos in 2015, followed by a law adopted in 2016. The cultivation, production, manufacturing, acquisition, storage, import, export, commercialization, distribution, use and possession of medical marijuana is controlled and regulated by the government, which issues licenses. While medical marijuana was controversial a few years ago, today it’s largely uncontroversial, with many pointing to the economic benefits that can be had. Even Duque, whose government followed a classical prohibitionist drug policy, signed a decree in 2021 regulating the industrial uses of cannabis and allowing the export of dried cannabis flower. According to ProColombia, the government’s investment and export promotion agency, medical cannabis could generate up to $1,700 million in exports by 2030.

Liberal representative Juan Carlos Lozada (Bogotá) has been the leading proponent of marijuana legalization. He has presented constitutional amendments to legalize adult-use recreational cannabis at the start of each legislative year since July 2019. The first three proposals were approved in first debate in commission in the House, but died either for procedural reasons or because it was voted down. The fourth proposal, presented in July 2022, at the opening of the current Congress, fared better. It received the support of the new administration (unlike the previous proposals) was approved in seven debates in both houses—constitutional amendments must be approved twice by each house over two consecutive sessions. However, in its eighth and final debate in the plenary of the Senate in June 2023, it failed (47 in favour, 43 against), falling short of the absolute majority (54) required for constitutional amendments.

A fifth proposal was presented in July 2023. The proposal would amend article 49 of the constitution (which currently prohibits drugs) to legalize the use, possession, production, distribution and sale of adult-use cannabis, with licenses required for the production, distribution or sale. It would have banned cannabis use and sale in and around schools and daycares and any other places where smoking is banned. The text provided for the establishment of measures to protect children, teenagers, pregnant and nursing mothers and the general public from harms associated with cannabis, as well as strategies to prevent the use of drugs, harm reduction strategies for drug users and support for those who quit drugs. Tax revenues from the distribution, sale and use of cannabis would have been collected and administered by local governments, and earmarked for education and healthcare spending.

The main arguments in favour of legalization were clarifying the legal status of cannabis, respecting fundamental rights identified by the Constitutional Court (free development of personality, equality, right to health), avoiding discriminatory or unequal treatment of drug users, strengthening the public health treatment of drug addiction, economic opportunities from a new legal market, new tax revenues, weakening illegal drug markets and reducing prison overcrowding. Proponents pointed to the examples of Uruguay, Colorado and Canada, and argued that cannabis was comparatively less harmful to health than alcohol, tobacco and hard drugs (cocaine, meth etc.). Not all arguments were particularly convincing: left-wing Green senator Inti Asprilla cited lyrics from Karol G, Maluma and Feid to defend legalization, earning him criticism and mockery from the opposition.

The arguments against were primarily moralistic, warning of the effects of recreational drug use on children and teenagers or arguing that cannabis is harmful for health and leads to increased crime. Opponents claimed, without much evidence, that legalization meant complacency with drug traffickers and jíbaros, or that it opened the door for the legalization or regulation of hard drugs like cocaine in the future. Centro Democrático (CD) senator María Fernanda Cabal claimed that legalization would lead to the ‘marihuanization’ of Colombia. Cambio Radical (CR) senator Carlos Fernando Motoa wanted an explicit constitutional ban on cannabis advertising, even though such a ban could have been part of a future law. Some CR congressmen had, in the past, supported legalizing marijuana, but, as part of their right-wing shift in opposition to Petro, the party now opposes it, earning it accusations of hypocrisy and opportunism.

Green senator ‘Jota Pe’ Hernández, the ‘YouTuber senator’ and populist firebreather, has stood out from his party for his vehement opposition to Petro and right-wing stances on many issues, including cannabis. In his histrionic (made-for-social media) speeches he said that legalizing ‘the business’ would allow people to buy weed at every corner and ‘destroy families’. He doesn’t mention that in July 2022, he co-sponsored (along other Green and centre-left congressmen) a proposal to legalize marijuana! Pacto senator María José Pizarro has called him an hypocrite for opposing it now when he supported it a year ago.

The current proposal was adopted in its first two debates (in commission and plenary) in the House, and adopted in third debate in the first commission of the Senate, in late November.

On December 12, the Senate adopted with 46 votes in favour and 40 against a motion to kill the proposal. The motion was proposed by Liberal senator Karina Espinosa, a social conservative best known for co-sponsoring a bill to educate children about principles and values and fight ‘immoral’ behaviours like infidelity (it was officially referred to as ley cero cacho, or zero cheating law).

The motion was adopted with the votes of the uribista CD, CR (except David Luna), the Conservatives, the Christian parties (MIRA and CJL), most of the Partido de la U (except for two senators), half of the Liberals in attendance, Green senator ‘Jota Pe’ Hernández and En Marcha senator Jairo Castellanos. The Conservatives remain bound by party discipline to vote against legalization, while a few Conservative senators had previously voted in favour of the previous proposal, in 2022.

The votes against came from the Pacto, the left, most of the Greens and other centrists, the other half of the Liberals and two from La U.

Compared to June, Liberal senators Alejandro Carlos Chacón and Juan Diego Echavarría and En Marcha senator Jairo Castellanos switched from voting in favour to voting against legalization. CR senator David Luna switched from being opposed to being in favour (he has tended to be more socially liberal than his party).

The president of the Senate, Iván Name (Green), surprised his colleagues by finally taking a stance and voting against the motion. He had been conspicuously absent for every debate in the past, and had been assumed to be tacitly against legalization. Nevertheless, despite voting against the motion, Name was still criticized by proponents of legalization because of the way he handled the debate and vote. He cut off María José Pizarro, the rapporteur, and didn’t let her finish. He acceded to the opposition’s request to close the vote after just a bit over 3 minutes, preventing government allies who had stepped out to come back in time to vote.

The timing played against legalization. Petro’s decree had turned the public mood against drug liberalization and was fresh in senators’ minds. Some also blamed the absence of several Pacto senators, but Green senator Angélica Lozano doesn’t think so: of the two absent senators, she says 13 would have voted against legalization and just 7 in favour, not changing the final outcome.

This fifth failed attempt is very frustrating to supporters of legalization, particularly just six months after they come so close. However, they have vowed to try again next year. The debate continues.