Colombia is going through a political decisive moment, due to the draft constitutional amendment (02/22 Cámara – 033/22 Senado),[1] presented in the Lower House by Juan Carlos Losada, which seeks to modify the Political Constitution to allow adult-use of cannabis. The draft has passed four of eight debates, a political phenomenon never seen before.

Going back in time, in 2009 during the administration of former President Alvaro Uribe -a solid opponent of drug regulation-[2] the Congress of the Republic approved an amendment to article 49 of Magna Carta(Legislative Act 02 of 2009), which restricted the use of narcotic and psychotropic substances to medical purposes under medical prescription.[3] This was the last attempt to ban the drug use for non-medical purposes, even though the Colombian population had been able to non-medical consumption since 1986[4](with the Law 30).[5]

Notwithstanding, the government did not achieve its goal, because the Constitutional Court issued the Sentences C-491/2012 and C-574/2014, in which it made a constitutionality control of the Legislative Act 02 of 2009 and another law, and concluded that the ban in article 49 of Political Constitution is not against personal consumption (non-medical) of drugs, allowed in Colombia by Law 30 of 1986; but still the commercialization is prohibited.

Furthermore, in 2016, the Supreme Court of Justice decided that more than a personal dose, each person have the right to carry a supply dose of drugs for personal use,[6] depending on its needs.[7]

Returning to the draft constitutional amendment, it was proposed at the first regular session of 2022 at the Congress of the Republic. Draft constitutional amendments must be approved in two regular sessions (four debates in each one, two in the Lower House and two in the Upper House)[8] that make up a “legislature”. The first regular session of a legislature runs from July 20 to December 16, and the second from March 16 to June 20.

The draft has passed the first regular session, therefore it was published by the President of the Republic,[9]and will continue its second session in March 16, and must pass the last four debates before June 20 of 2023 to become a constitutional amendment (legislative act). This second regular session is harder since it requires, for the approbation of each debate, absolute majority, which means the vote of one-half plus one of the members of each of the House.

Instead, in the first regular session sole a simple majority is required, it means the vote of one-half plus one of the congressmen/women present at the time of the vote. For this reason, the attendance of participants is vital in the second regular session, also called “second round”.[10]

Moreover, if at the end of the eighth debate there is a difference in the articles between the Lower and Upper Houses, it is necessary to create an accidental commission to harmonize the final redaction, as was the case after the fourth debate.

However, why the Losadas’ draft has passed four debates, if previous projects did not go beyond the second one? The answer is elemental: all this due to political will. During Ivan Duque’s Administration, the government was an opponent of adult-use of cannabis because of its convictions and, according to them, it was contrary to national drug policy and to the Single Convention on Narcotic Drugs, 1961.

But now, with the new President, Gustavo Petro, Colombian “anti-drug policy” changed and became a “drug policy”, seeking the inclusion of vulnerable population and indigenous, and the substitution of illicit crops.

Considering the above mentioned, the National Government has been supporting the Losadas’ draft, and the Justice Minister is at every debate, making contribution and defending the project. Also, the government has made agreements with different political parties and hence, the last debate had a vote of 53 votes in favor and only 3 against. For this new year, the draft was included in government’s legislative agenda, and it will be supported by the Ministers of the Interior and Justice in the second round.

If by June 20 the draft has been approved, Colombia is not going to see neither coffee shops, dispensaries nor social cannabis clubs the next day, because a law to regulate the eventual legislative act shall be necessary and, perhaps, to regulate different issues of the law, a decree and resolutions may be required (as was the case with medical cannabis regulation: Legislative Act 02/2009, Law 1787/2016, Decree 811/2021 and Resolutions 227 and 539 of 2022). Possibly this draft constitutional amendment, if approved, will become effective within 2 or 3 years.

If the Losadas´ draft is approved, our country will take a big step in drug policy, becoming the second country in Latin America to have an adult-use of cannabis regulation, despite other tensions that will have to be resolved, such as compliance with the Single Narcotic Drug Convention, 1961 and likewise the regulatory model it will choose.

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[1] Draft constitutional amendment available on https://apicongresovisible.uniandes.edu.co/uploads/proyecto-ley/12370/855/22.pdf

[2] See Alvaro Uribe´s Twitter: https://twitter.com/alvarouribevel/status/1583945890753961986?s=46&t=pvg_0-0KdSMhDLtRurwSJw

[3] COLOMBIA. Political Constitution. ARTICLE 49. […]

[…]

The carrying and consumption of narcotic or psychotropic substances is prohibited, except by medical prescription. For preventive and rehabilitative purposes the law will establish measures and administrative treatments of pedagogical, prophylactic or therapeutic order for persons who consume such substances. Submission to such measures and treatment requires the informed consent of the addict.

[4] López Amarís, Efraín. Comentarios al Decreto 811 de 2021 sobre acceso seguro e informado al cannabis. Bogotá, 2022, Publisher Tirant Lo Blanch.Pages 63-66.

[5] COLOMBIA. Law 30 of 1986. ARTICLE 2o. (Definitions). For the purposes of this Law, the following definitions shall be adopted: […]

1. j) Dose for personal use: The amount of narcotic drugs that a person carries or keeps for its own consumption.

A dose for personal use is the amount of marijuana that does not exceed twenty (20) grams; of marijuana hashish that does not exceed five (5) grams; of cocaine or any cocaine-based substance that does not exceed one (1) gram; and of methaqualone that does not exceed two (2) grams.

It is not a dose for personal use, the narcotic drug that the person carries with him/her, when its purpose is its distribution or sale, whatever the amount is.

[6] “Dosis de aprovisionamiento”.

[7] Sentence SP2940-2016 of the Criminal Cassation Chamber of the Supreme Court of Justice:

Therefore, the personal dose that generates non-criminality of the conduct due to the circumstance of quantity is not only the one determined by literal j) of article 2 of Law 30 of 1986, as it has been understood by the jurisprudence until now, but also the one that is demonstrated in the process in an amount higher than that regulation but always when it is necessary for the consumption of the subject that is being prosecuted given his personal situation in the specific case, since the presumption established by the legislator about what should be understood by personal dose is legal and admits proof to the contrary.

Then, the atypical nature of the conduct for consumers or addicts will depend on the certain purpose (not supposed or feigned) of their personal consumption, which may be distorted in each case according to the modal, temporal or spatial circumstances, such as when the amount exceeds the amount required by the consumer, addict or sick person, or the intention is to take it out or introduce it into the country, transport it, carry it, store it, keep it, elaborate it, sell it, offer it, acquire it, finance it, supply it or carry it with a purpose other than personal consumption.

[8] In Colombia the Lower House is called “Chamber of Representatives” and the Upper House is known as “Senate”.

[9] It is a mandatory process according to articles 375 of Political Constitution and 225 of Law 5 of 1992.

[10] Segunda vuelta.