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Migrants and Traditional Use

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The coca leaf travels from the Andean Amazon to the European courts

25 April 2019
Authors
Pien Metaal, Constanza Sánchez, Natalia Rebollo

Coca leaves

Coca leaves / Photo credit Pien Metaal, TNI

For the past several years, Fundación ICEERS, with the support of allied organisations such as the Transnational Institute (TNI), has been assisting in the legal defense of people with a migrant background who are prosecuted in Spain (or other European countries) for the possession or importation of coca leaf for the purposes of traditional use. These people originate from countries with a legal framework allowing for licit traditional use of coca leaf, such as Colombia, Bolivia, Peru and Argentina. These cases have had different outcomes and, when people have been convicted, sentencing has not been uniform. In this sense, communities have struggled to exercise their basic rights to enjoy their own culture, illustrating new challenges for human rights and drug control. These challenges need to be met within the framework of the 2030 Agenda for Sustainable Development, a new reference for UN drug control mechanisms and the global drug policy debate at large.

Almost two years ago ICEERS celebrated the positive result of a court case related to coca leaf in Girona, Spain. After three years of uncertainty, the Public Prosecutor decided during trial to withdraw the charges of drug trafficking against a Colombian citizen residing in Catalonia for receiving by mail a 2 kilogram package of ground coca leaf. Although the withdrawal of charges against the accused, who had been charged with a crime against public health, was very welcome news to the person involved, to his family and friends, and to drug policy reformers, the prosecutor’s decision to withdraw charges, unlike an acquittal or a decision by the judge to reject the charges, does not result in any formal legal precedent which could be relied upon by others accused under similar circumstances.

Last November we also learned about the latest court decision from a case related to coca leaf possession in Spain, in which we had worked closely with the defense team for over two years.. This case relates to the broader issue of traditional use of this plant, beyond its local native contexts, and how migrants from the Andean Amazon region are deprived of a legitimate cultural practice, which is embedded in the places from which they come.

 Coca leaf: on trial again in Spain

A Bolivian citizen from Santa Cruz de la Sierra settled in Spain more than a decade ago. Returning from a visit to his family and his motherland, he was detained at Barcelona airport in possession of eleven bags of coca leaf: a total of 4.5 kilograms for chewing (a traditional habit known as “pijcheo” in the native language Aymara) and for brewing tea.

Selling of coca / Photo credit Flickr/Steve Willey/CC BY 2.0

According to the public prosecutor, 20 grams of cocaine could be extracted from this quantity of leaves (based on toxicological testing showing the presence of 0.4% of cocaine), adding up to an estimated value on the illicit Spanish cocaine market of 1,153 euros. Please do note the mathematical error here: given the quoted value of 0.4% the total should have been 18 grams, assuming perfect conversion. Based on these assumptions, however, the prosecution called for a four year prison sentence and a 2000 euro fine.

Up until this moment, the Provincial Court of Barcelona had been acquitting persons charged in similar cases. However, these judgments were overthrown by the Public prosecutors’ office in a challenge before the Supreme Court, resulting in sentences of 1.5 years in these cases. In Spain a sentence of less than two years does not result in actual jail time, but the person in question is left with a criminal record. In the Girona case, where charges were dropped, there was no possibility to acquit or to condemn, making that case an exception to this general rule. This case was also exceptional: the Bolivian citizen was ultimately condemned to 6 months of prison time with a fine of 30 euros (related to the price paid for the leaves in Bolivia); calls for his expulsion from Spain were dismissed.

How was this result achieved? From the outset ICEERS and allies have supported the defense, under the leadership of Ines Berman, by elaborating expert reports and sharing information with the lawyer in charge of the case. ICEERS also testified as an expert witness at the trial.

The defense strategy: claim the right to traditional use of coca and its benefits

Our strategy was based on two pillars: the lack of evidence of health harms, and the importance of traditional cultural use. In the first place, we argued that coca leaf is not listed within the Spanish jurisdiction as a substance that endangers human health. Moreover there exists, in fact, no evidence for negative health impacts of coca leaf consumption. We considered that if the coca leaf in the defendant’s possession was not destined for cocaine production, charges based on damage to public health would not hold. At the same time, until now no impartial, objective and exhaustive study on the health impact of coca leaf has been undertaken. A critical review by the WHO Expert Committee on Drug Dependence, the appropriate UN body to recommend changes in the current classification of coca in the international drug treaties, would be of fundamental importance to challenge the basis for including coca leaf on current international schedules of controlled substances (Peru and Bolivia tried, without success, to initiate such a review in 1992). Such a review is overdue, since much of the evidence used in 1950 to put coca leaf under international control through the 1961 Single Convention would today be considered racist, or failing to meet basic standards such as avoiding discrimination.

In the second place, we insisted that traditional use of coca plays a fundamental role in the societies and cultures of Andean Amazon communities; something that they bring with them when migrating abroad. Nonetheless, this fundamental right of indigenous people is not being reflected in the legal status of coca in places where these migrants settle. The connection of coca to the cocaine market, and its traditional meaning in places where the plant is not native, are some of the most challenging issues for the current international drug control system. In the defense we tried to contextualize the plant’s traditional use in Bolivia, explaining the social and legal control mechanisms at work in the country where the accused was born and raised.

The Tribunal’s arguments: Risk of supplying third parties and local coca leaf market

Much to our surprise, the main argument used to support the guilty verdict was that the circumstances constituted a “crime of abstract danger”, meaning that the mere possession of a substances considered to be toxic constitutes an alleged threat to public health, even if no damage is actually done. The accused, according to the charges, showed “a total contempt for the physical and mental health” of the people he would, supposedly, sell the coca leaf to.

Curiously, based on their legal knowledge and not hampered by any cultural sensitivity concerning the practice of coca chewing, the judges considered it to be “a well-known fact” that preparing coca tea would require 5 to 10 leaves. For this reason, the court considered that the quantity in the possession of the accused was too high to be destined for personal consumption, and thus was meant to be distributed to third parties. Not only that, the fact that the accused was unable to specify the exact number of coca leaves needed for a good chew, or for one liter of coca tea, combined with “the high amount of leaves” (sufficient for 440 days of consumption, based upon the metric of a handful of leaves) established, they argued, the clear risk of storage or distribution to third parties, putting collective health at severe risk.

Erradicación de coca

Eradication of coca fields / Photo credit Colombian National Army

The absence of cultural sensitivity in the interpretation of the norms made it impossible to establish a clear measure of traditional plant consumption. When we serve ourselves a coffee on a daily basis we do generally know exactly how many grams of coffee we use for each cup: “a handful” of coffee beans would be a sufficient indication.

The insistence of the defense that the accused was not planning to convert the leaves into cocaine, plus the mention of the existence of a “grey” market for coca in the substantial Andean community living in Spain, turned out to be a double-edged sword. This argument caused the court to consider that transformation into cocaine was not essential to establish a crime, but that the possibility of trading the coca leaf itself was sufficient. Although this constituted a new element not previously reflected in court decisions, it failed to take into account the reality that many migrants may be unable to visit their families, or purchase local products from their countries of origin, for many years at a time. This fact was strongly emphasized by the lawyer and the accused.

Taking all the arguments into account, the Court sentenced the accused to 6 months of prison and a fine of 30 Euros, half of what he allegedly paid for the coca products at a Bolivian market place. He was not expelled from the country, and can continue his professional and family life in Spain. However, the years of uncertainty and suffering while awaiting trial, and a permanent criminal record, are the heavy price he has had to pay for disproportionate and punitive drug laws.

At the international level: slowly but surely

A good example of recent incremental progress is a study currently underway at the UN office of the High Commissioner on Human Rights (OHCHR) on the repercussions of the Global Drug Problem for the full realization of Human Rights. Numerous organizations, such as the Transnational Institute1 and ICEERS, have published recommendations for the report, warning of the problematic effects when plants, such as coca leaf, are reduced in law and policy to pure molecules and active compounds. The tendency to isolate ancestral plants from their traditional and cultural use is a consistent factor in judicial trials. The report presented by ICEERS was taken into account for the elaboration of the OHCHR document, which included a special section on the rights of indigenous peoples and the religious and cultural use of ancestral plants. The inclusion of traditional coca use in the final report of the OHCHR, with reference to Article 18 of the International Covenant on Civil and Political Rights (freedom of thought, conscience, and religion), acknowledges the use of controlled substances in religious and ceremonial contexts when historic evidence for this use exists. Even though the Human Rights Council requested that the Commission on Narcotic Drugs (CND) take this document into account in its 62nd session, the Commission elected not to do so. During the CND session of 2019, at a dialogue between the Commissions’ Presidency and Civil Society Organizations, a representative from ICEERS asked how States could respect and guarantee the use of coca leaf by migrants, in terms of the 2030 Agenda for Sustainable Development. The Commissions’ Presidency deferred responsibility, arguing that States have flexibility to submit recommendations for reclassification of controlled substances.

Although legal incidents related to coca leaf possession are not frequent, they are also no longer isolated cases. ICEERS receives more and more petitions for legal advice on the matter from across Europe, where Andean Amazon descendent communities number in the hundreds of thousands. Current drug policies do not address this situation and result in disproportionate penalties, considering that these are traditional cultural practices that do not pose a threat to public health or safety. Migrant communities’ right to cultural life and their rights to use traditional plants should be reconciled with states’ obligations under the international drug control regime. The clash between human rights and drug control deserves our attention, and deeper understanding. The new framework for debates on international policies (The 2030 Agenda for Sustainable Development) must respond to the challenges generated by the globalization of traditional practices which are no longer are limited to a specific territory or population.

1 In the TNI report «Connecting the Dots…Human Rights, illicit crops and alternative development» it is recommended that “Countries truly committed to human rights protection in drugs policy must recognise that, when it comes to indigenous, cultural and religious rights, full compliance will require the amendment of, or derogation from, certain provisions in the drug control treaties.

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Right to Repair Bill Introduced in Congress

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Hot on the heels of last week’s victory in the New York state senate, the fight for Right to Repair comes to the US Congress. Today, Congressman Joe Morelle (D-NY) introduced the first broad federal Right to Repair bill: the Fair Repair Act.

“As electronics become integrated into more and more products in our lives, Right to Repair is increasingly important to all Americans,” said Kyle Wiens, iFixit CEO. Lawmakers everywhere are realizing the need to protect our Right to Repair—along with progress in the EU and Australia, 27 US states introduced Right to Repair legislation this year, a record number.

“Every year I’ve worked on Right to Repair, it’s gotten bigger, as more and more people want to see independent repair protected,” said Gay Gordon-Byrne, Executive Director of Repair.org. Rep. Joe Morelle has been a champion for much of that journey, sponsoring legislation while in the Statehouse in Albany starting in 2015. Everywhere you go, people just want to be able to choose for themselves how to fix their stuff. You’d think manufacturers would wise up.”

Congressman Joe Morelle’s federal bill would require manufacturers to provide device owners and independent repair businesses with access to the parts, tools, and information they need to fix electronic devices.

“For too long, large corporations have hindered the progress of small business owners and everyday Americans by preventing them from the right to repair their own equipment,” said Congressman Morelle. “It’s long past time to level the playing field, which is why I’m so proud to introduce the Fair Repair Act and put the power back in the hands of consumers. This common-sense legislation will help make technology repairs more accessible and affordable for items from cell phones to laptops to farm equipment, finally giving individuals the autonomy they deserve.”

“Right to Repair just makes sense,” said Nathan Proctor, U.S. PIRG Senior Right to Repair Campaign Director. “It saves money and it keeps electronics in use and off the scrap heap. It helps farmers keep equipment in the field and out of the dealership. No matter how many lobbyists Apple, Microsoft or John Deere and the rest of the manufacturers throw at us, Right to Repair keeps pushing ahead, thanks to champions like Rep. Joe Morelle.”

“At iFixit, we believe that big tech companies shouldn’t get to dictate how we use the things we own or keep us from fixing our stuff.” said iFixit’s US Policy Lead, Kerry Maeve Sheehan. “We applaud Congressman Morelle for taking the fight for Right to Repair to Congress and standing up for farmers, independent repair shops, and consumers nationwide.”

We’re pleased to see Congress taking these problems seriously. In addition to supporting Congressman Morelle’s Fair Repair Act, we urge Congress to pass much-needed reforms to Section 1201 of the Copyright Act, to clarify that circumventing software locks to repair devices is always legal, and to expressly support the Federal Trade Commission’s authority to tackle unfair, deceptive, and anti-competitive repair restrictions.

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For a healthier planet, management must change

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Our environment sustains all life. Both human and wildlife. When habitat degrades, the lives of all that depend on it also deteriorate: poor land = poor people and social breakdown.By Sarah Savory, Zimbabwe

In Zimbabwe (like many other countries in arid areas with seasonal rainfall) we are facing the many symptoms and signs of our country’s advancing desertification: ever-increasing droughts, floods, wildfires, poverty, poaching, social breakdown, violence, mass emigration to cities, biodiversity loss and climate change. No economy can survive if we destroy our soil – the only economy that can ultimately sustain any community, or nation, is based on the photosynthetic process — green plants growing on regenerating soil.


So, if we wanted to find out the optimum way to manage our wildlife, people and economy, logically, shouldn’t we be looking at our National Parks for the best examples of what we can do for our environment? Because in national parks, we not only have the best management the world knows, we don’t have any of the issues that are normally blamed for causing desertification: ignorance, greed, corruption, corporations, livestock, coal, oil, etc. Let’s do that now…the following are all photos taken in our national parks (the first 3 were taken in May right after the rainy season when they should still be looking their best!)

As you can see from those photos, some of the worst biodiversity loss and land degradation we have in Zimbabwe is occurring IN our National Parks. But, as I pointed out, those have been run using the best management known to us and have been protected and conserved for decades. We’ve clearly been missing something…

The above 8 pictures are a mixture of National Parks and Communal Land…can you tell which is which?

We are seeing this land degradation both inside and out of our Parks because there is an over-arching and common cause of desertification that nobody has understood, or been able to successfully address, until recently.

We spend our lives blaming resources for causing the damage (coal, oil, livestock, elephants, etc) but resources are natural, so how could they possibly be to blame? Only our management of them can be causing the problem.

ALL tool using animals (including humans) automatically use a genetically embedded management framework…and every single management decision made is in order to meet an objective, a need, or to address a problem. And those decisions are made with exactly the same framework, or thought process and for exactly the same reasons, whether it is an animal or a human.

For example, a hungry otter has an objective: he wants to break open a clamshell because he needs to eat. He uses a simple tool (technology, in the form of a stone) to do so. He does this based on past experience or what he learned from his mother.

Or, the president of the United States has an objective: to put a man on the moon within a decade. He and his team use the same tool (technology, but various and more sophisticated forms of it) and base their choices on past experience, research, expert advice, and so on. It’s the same process, or framework, in both cases, only the degree of sophistication has varied.

A screen shot taken from a short video clip we took with a film crew last month, of 4 different areas, all near to each other: you will clearly see the terrible desertification in both National Parks and nearby Communal Land. In comparison, you will see a vast difference on Dibangombe, the Africa Centre For Holistic Management (our learning centre, which is only 30km from Victoria Falls.) This habitat is being regenerated for all life by simply managing holistically. Every year on this land, despite the worsening droughts, the biodiversity increases and the land and wildlife flourish.
All this footage was taken in the same area, at the same time, with the same climate, the same soils, the same wildlife and the same humans.
But different management.

To this day, this decision making process works just fine for the otter. But imagine that one day, the otter invents a machine that can crack open 1,000 clam shells a day and that all the other otters suddenly stop doing what otters are designed to do and just come to him to get their clams. They still use the decision making process but everything else has changed…that tiny advance in technology would have inadvertently set off a complex chain reaction through the whole ecosystem and there would soon be catastrophic environmental knock-on effects because the balance of the ecosystem has been upset. The ecosystem will keep trying to adjust to this change but eventually it will start to collapse. Imagine the otter started charging for the clams. Now, with every decision the otters make, in order to make sure their ecosystem didn’t collapse, they would need to be simultaneously addressing the social, environmental and economic aspects of their actions. Their management would have to evolve with the change.

This is exactly what happened to humans…As soon as our technology advanced, our management should have evolved to accommodate for it. But it didn’t.

Our natural world is rapidly collapsing all around us and we have ended up constantly chasing our tails and dealing with the symptoms and complications we’ve created. While there have been thousands of books written over the years on different types of management, if you dig a little deeper and ‘peel the onion’ the same genetically embedded framework is still inadvertently being used.

In the last 400 years, our technology has advanced faster than in all of the two hundred thousand or so years of modern human existence. Over those same few centuries, you can now see why the health of our planet has entered a breathtaking decline.  We now have the knowledge to change that…

No matter what we are managing, we cannot ever escape an inevitable web of social, economic and environmental complexity, so, in order to truly address any issue, the people and the finances have to be addressed simultaneously, not just the land itself. Isolating one particular part of the problem, or singling out a species and trying to manage it successfully, is no different from trying to isolate and manage the hydrogen in water.

With this knowledge, the Holistic Management Framework was developed. And, incredibly, it all started here in Zimbabwe, by my father, Allan Savory, an independent Zimbabwean scientist. This new decision making process ensures that no matter what we are managing, we focus on the root cause of any problem. It also makes sure that all our decisions are socially or culturally sound, economically viable and ecologically regenerative by using 7 simple filtering checks. And, it introduces us to a new, biological tool: animal impact and movement, that can be used to help us reverse desertification and regenerate our land and rivers.

This framework has received world-wide acclaim and is now being mirrored in forty three Holistic Management hubs on six continents, including the first university-led hub in the USA.

Now we can begin to understand that most of the problems we are facing in Zimbabwe today are simply symptoms of reductionist management.

Imagine that one day, someone starts to beat you really hard over the head, once a day, every day, with a cricket bat. It really hurts, and instead of trying to take the bat away from them, you just take a dispirin to deal with the headache it’s caused and carry on.

After a week, the pain will be getting much worse and the dispirin will no longer be strong enough, so you’d need a new painkiller. The stopain comes out. After a while, stopain won’t be enough, so you turn to Brufen. And so it goes on. Yet the blows continue.

Eventually, your organs will be struggling from all the medication and you’ll end up in hospital with very serious complications. The best doctors and specialists in the world are called in at great expense and they rush around treating all your worsening, and now life-threatening, symptoms. None of them can understand why you aren’t getting better – they’ve used the best medicines and procedures known. It’s because everyone is so focused on your symptoms, that nobody has looked up and seen the person standing behind you with the cricket bat.

It sounds silly when I put it like that, doesn’t it? But that is exactly what we are doing.

Our planet is in that hospital with life threatening complications, with Governments, Organisations and individuals doing their best, spending millions of dollars, often using expert advice, to find out how to treat the patient, but nobody has realised that they are only treating symptoms. Nobody has noticed the guy standing there with the bat.

The holistic management framework stops the blows to the head. As soon as we do that and the cause is being treated, all the symptoms will automatically begin to heal and fall away.

I am going to show you a screen shot taken from a short video clip we took with a film crew last month, of 4 different areas, all near to each other: you will clearly see the terrible desertification in both National Parks and nearby Communal Land. In comparison, you will see a vast difference on Dibangombe, the Africa Centre For Holistic Management (our learning centre, which is only 30km from Victoria Falls.) This habitat is being regenerated for all life by simply managing holistically. Every year on this land, despite the worsening droughts, the biodiversity increases and the land and wildlife flourish.

All this footage was taken in the same area, at the same time, with the same climate, the same soils, the same wildlife and the same humans.

But different management.

These pictures were taken on the same day on land only 30km apart in February 2018, The 2 photos on the left are Zambezi National Park and the photo on the right is Africa Centre for Holistic Management (Dibangombe)

The great news is that we can turn it all around and we don’t have the thousands of different problems we all think we do. We only have to adjust one thing. Our management.

It’s time for us to evolve from using our outdated, reductionist management framework. We need to adapt to a new way of thinking and  apply this paradigm-shifting decision  making framework so that we can all work together towards regenerating our Zimbabwe.

Culturally. Socially. Economically. Environmentally. For for our people and for our wildlife.

Let’s start by stopping the blows to the head!

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Free to Download Fight the Fire: Green New Deals and Global Climate Jobs

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Fight the Fire

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OUT NOW!

“The most compelling and concise guide to averting climate breakdown.” – Brendan Montague, editor, The Ecologist.

Download Jonathan Neale’s Fight the Fire from The Ecologist for free now.

The Ecologist has published Fight the Fire for free so that it is accessible to all.

We would like to thank our readers for donating £1,000 to cover some of the costs of publishing and promoting this book.

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