Ecuador has entered a new era in drug policy and legislation. Twenty-five years after the last major legal reform, brought about by the famed Narcotic and Psychotropic Substances Law (Ley de Sustancias Estupefacientes y Psicotrópicas, Law 108), which took effect on September 17, 1990, the National Assembly is about to debate—for the second and final time—the draft Law on Prevention of Drugs and Use or Consumption of Substances Classified as Subject to Oversight (Ley de Prevención de Drogas y Uso y Consumo de Sustancias Catalogadas Sujetas a Fiscalización.)

This legislation would complete seven significant steps in drug policy under the administration of President Rafael Correa. To understand the nature of the new draft legislation, it is important to examine it in light of Ecuador’s current drug policy.

The First Six Steps

After Rafael Correa won the presidency in 2006, a constituent assembly was formed to develop a new constitutional framework for the country. While that work was under way, the first step of drug policy reform was taken in July 2008, with the so-called pardon for drug trafficking “mules.” This marked a clear break with the pain caused by mass incarceration under Law 108, as more than 2,000 people regained their freedom. Shortly afterward, the second step came with Article 364 of the new Constitution (2008); this provision established as a principle, for the first time, an express prohibition against criminalizing consumers and shifted the focus on the social issue of drugs from a criminal approach to one of health policy. What other countries had accomplished through the courts or public policy, Ecuador achieved by modifying its Constitution.

A year later, the government decided not to renew the United States’ Forward Operating Location (FOL) in Ecuador, closing the so-called “Manta Base,” which dated back to a November 1999 agreement on the military interdiction of drug traffickers signed by then-President Jamil Mahuad. Besides posing dilemmas related to national sovereignty and meddling in Colombia’s armed conflict, the Manta Base was used to intercept dozens of boats carrying undocumented migrants northward. This was the third step.

The fourth step in drug policy reform came just days after the Organization of American States (OAS) published the report, “The Drug Problem in the Americas,” in May 2013. The National Council for Control of Narcotic and Psychotropic Substances (Consejo Nacional para el Control de las Sustancias Estupefacientes y Psicotrópicas, CONSEP), Ecuador’s national drug policy-making body, issued a decree that for the first time aimed to establish thresholds of tolerance to avoid criminalizing users of illicit drugs. The parameters included maximum allowable amounts of ten grams for cannabis and two grams for cocaine base paste, removing them from criminal prosecution under Article 62 of Law 108—in other words, away from the easiest and most ambiguous criminal category used by police agencies: “carrying or possession.”

In June 2013, the Correa Administration decided to withdraw unilaterally from the preferential tariffs granted by the United States as compensation for the “War on Drugs” in the Andean countries (Andean Trade Promotion and Drugs Eradication Act, ATPDEA). This marked the fifth step, amid rumors that involved Ecuador in the possible granting of political asylum to Edward Snowden, who was sought by the United States for having leaked classified information. With non-renewal of ATPDEA looming, the Ecuadorian government made public its decision to stop receiving financing in that form, and instead offered the United States a similar amount (US$23 million annually) to promote training in human rights and the elimination of torture.

The sixth step combined political and legislative measures, with the signing into law of the Organic Comprehensive Criminal Code (Código Orgánico Integral Penal, COIP) in February 2014. This code repealed the criminal provisions of Law 108, which amounted to more than 60 percent of its passages. COIP reformed all criminal categories of drugs to allow greater proportionality, considering that Ecuador had become one of the countries with the harshest sentences in the region. While possession used to carry a sentence of 12 to 16 years, up to a cumulative total of 25 (Art. 62 of Law 108), criteria are now established that divide the types of trafficking into four levels and impose a penalty of two to six months for small-scale cases (Art 220 of the COIP). Less than three months after it took effect, 2,000 people regained their freedom as a result of the implementation of the principle of favorability or the more benign subsequent law.

The Seventh Step

Despite significant advances in international and criminal drug policy, the social aspect of public policy has yet to be addressed. This depends largely on what remains of Law 108, which is inadequate and does not allow linkages under the new constitutional standards, at least regarding guidelines for prevention. In addition, responsibilities under the institutional structure established by Law 108 have gradually become blurred. Although CONSEP is responsible for overseeing social policy on drug prevention, in practice each ministry implements the policy it considers best. The education ministry has allowed police to enter schools to provide training and to arrest people it considers traffickers. The provincial government of Guayas launched its own drug policy, called “The Preventive Revolution,” with an ambitious program that included famed pianist Raúl di Blacio as a spokesman. The health sector, meanwhile, has worked with the Attorney General’s Office and the social inclusion sector to develop new forms of oversight for treatment and rehabilitation centers—most of which are privately operated—for people with alleged dependency problems.

Because of this lack of organization of responsibilities for drug-prevention policy, the president’s office drafted legislation that would create a new agency with full responsibility and power in the area of prevention. The draft “Law on the Prevention of Drugs and Use and Consumption of Substances Classified as Subject to Oversight” (“Ley de Prevención de Drogas y Uso y Consumo de Sustancias Catalogadas Sujetas a Fiscalización”) introduced by the executive office is reductionist for the following reasons: i) its 25 articles do not include guidelines or principles for development of a social or comprehensive drug prevention program; and ii) many of its articles are devoted to administrative matters, such as control of pharmacists who dispense controlled substances. The new institutional structure would consist of an Inter-Agency Committee to be managed by a Technical Secretariat reporting to the president’s office; unlike the current CONSEP, it would no longer handle property confiscated from drug traffickers, as that would fall under a different agency.

The National Assembly’s health commission improved on the initial draft of the law, including civil society groups that called for a broader approach to comprehensive drug prevention as a social issue. In that version, the prevention that is virtually absent from Law 108 would be implemented through communications, educational, and public health approaches, along with criteria—such as thresholds—for avoiding the de-facto criminalization of people who use illicit drugs. The challenge is to put human beings at the center, instead of focusing only on substances; this could be summed up simply in the name, “Drug Prevention Law.” This new dynamic in the legislative debate could also include regulation of the market for certain illicitly used substances, a matter that apparently has led to debate within the government.

The legislative process is just beginning, however, and there is no guarantee of the outcome of this draft legislation. The National Assembly must still hold the second debate, and farther down the road it will have to resolve the dilemmas that could arise depending on whether the president signs the bill into law or vetoes all or part of it. What is certain is that the government has not taken a unified position on this final step in drug policy. There are differing opinions, mainly in the ministries that are reluctant to take a harm reduction approach to drug policy, such as Interior (police), Education, and Security. The seventh step is still a battleground. The outcome could provide consistency to a dialectic that has gone in various directions, or it could constitute a contradictory denial by the government of Rafael Correa.

------

This blog was written for WOLA and TNI