Dr Letshwiti B. Tutwane
This past week, a full bench of the South African Constitutional Court (10 judges) unanimously agreed to legalise possession, use or cultivation of cannabis in private spaces such as the home.
Judging from the reactions on social media a lot of people did not expect this. But to me three factors made it very likely. Given the cogent reasoning of the High Court in Western Cape in the cases before it which gave rise to the Con Court decision this was anticipated. The state of use of marijuana around the world is evolving very fast. In many jurisdictions possession and consumption of the substance in small quantities at personal level has been decriminalised. At least 33 countries have done so including in USA (some states), Canada, Australia (some states), Switzerland, Czech Republic, Austria, Portugal, Chile and so on. Some of these countries have also allowed cultivation and sale of cannabis for medicinal purposes. Even closer home South Africa and Zimbabwe have also made the same pronouncements. As I have argued previously here, comparative international law plays a critical role in this respect. Thirdly, a careful reading of the laws that criminalised usage of cannabis such as the Drugs and Trafficking Act (1992) and the Medicines and Related Substances Act (1965), sections 22A (9) (a) (1) shows that they have many exceptions. In their present reading, these laws empower the relevant ministers to legalise usage of marijuana in certain circumstances. In this way, the ruling just pushes the boundaries a little. Finally, the test required for a law to limit a right such as privacy which is at the centre of this case (as per Section 14 of the South African Constitution) is a tall order. It is more onerous and detailed than in our own constitution. Section 36 of the South African Constitution requires limitations to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
A good number of factors must be satisfied to meet this threshold: the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and if there are less restrictive means of achieving the purpose. In comparative international law these are principles of legitimacy and necessity. And as the Acting Chief Justice Raymond Zondo said, the list is not exhaustive. However, the limitations must also be prescribed by law of general application which was not a big deal in this case. What I have observed is that the South African upper courts tend to be thorough in their interpretation of the law and their Con Court takes this to an even higher level. And they value comparative international law. They avoid dull black-letter law devoid of imagination or creativity.
On the whole the court reasoned that private use of marijuana in small quantities is fair game! But they extended the Western Cape decision a bit so that one could even use dagga outside the home. The Con Court held that there was no persuasive reason for the High Court to confine its declaration of invalidity to cannabis use in a home or private dwelling. As constitutional lawyer Dr Mary Nel put it, ‘The Constitutional Court envisages instead that, provided dagga is used “in private and not in public”, it is protected by the right to privacy, even if the adult in question is not at home or in a private dwelling. It uses the example of someone who has cannabis in their pocket for private consumption, and then steps outside their home or dwelling. Provided the cannabis remains in their pocket and is for personal use, it still falls within the constitutional protection’.
Another interesting factor that the court considered was the cultural aspect of the consumption of cannabis. It noted that in South Africa the drug has been racialized as a Black substance of nuisance. It was thus not surprising that though they did not succeed to be joined to the case owing to their late application and the fact that the cultural rights issue was not canvassed, the Griqua and San wanted to be part of the cases. Other parties came in as friends of court and intervening parties. The public face of this case was lawyer Garreth Prince and his fellow Rastafarians. He had on-going cases where he was caught in possession of dagga.
Another interesting feature of this case was that basing on a UN Report, the Court found that dagga was less dangerous to health than alcohol. At the initial hearing at the High Court Garreth had built a formidable casing pointing to the medicinal benefit of dagga as has indeed been confirmed elsewhere by doctors including CNN’s Dr Sanjay Gupta. The State and an NGO called Doctors For Life International had also brought their own scientific arguments to court to try to persuade it otherwise. In the end Garreth and company prevailed.
The Court in its judgment provided an interesting revelation of the African medicinal use of dagga. Dome tribes used the leaves as snake-bite remedy. The Xhosas have traditionally used it as part of treatment for bots in horses. In colonial Zimbabwe (Southern Rhodesia) the people there used the plant as a remedy for malaria, backwater fever, blood pressure, blood poisoning, anthrax, dysentery and as ‘war medicine’. The Sothos were known to grind the seeds and mix them with bread to feed children who were being weaned. During childbirth, the Sotho women would take it as a form of anaesthetic ‘to stupefy themselves’ during childbirth. In Europe dagga oil has been used to cure cancer, arthritis and many other diseases, Justice Zondo noted in his 74 page judgement. However the court acknowledged that consumed in high doses dagga could be dangerous. It is for that reason that the court did not authorise dealing in dagga, which means buying and selling dagga. However as Dr Nel has observed this poses practical problems. For instance, if you don’t want to grow cannabis but just want to consume it how are you going to get it without buying it? Or you want to plant. Surely somebody must sell you the seeds which is illegal.
‘The judgment’s implication seems to be that to exercise one’s (constitutionally-protected) right to use marijuana in private, one must inevitably act illegally since any purchase of marijuana and related products makes one an accomplice to dealing in cannabis’. I could not agree more with Dr Nel.
I think as a nation we should wake up to the reality that dagga is upon us. I personally don’t smoke or support its smoking but I can’t speak for everybody. I anticipate that soon we will have a case in our courts with somebody seeking an order like the one made by the Con Court in South Africa. I don’t see why the High Court or Court of Appeal should decline. Comparative international law is in favour of this sweeping tide. I am a strong proponent of medicinal use of marijuana. I think that is how father God intended the substance to be used! As a medicinal substance it will help many sick people and at the same time boost the economy.