By Dale T. McKinley · 11 Mar 2014
In the spirit of John Lennon, imagine this near-future scenario.
It is 2016, the 20th anniversary of South Africa’s Constitution. Alongside all sorts of official festivities, a sizeable portion of the population is celebrating the recent decision by the Constitutional Court to declare the Drugs and Drug Trafficking Act (No. 142 of 1992), a piece of legislation embedded in over a century of colonial, racist politics and wrapped in layers of ideologically and morally manipulated misinformation and ignorance, unconstitutional.
The celebrations are all the more special because the Court has ruled that the Act infringes on one of our most historically violated and now cherished constitutional rights; that everyone is “equal before the law and has the right to equal protection and benefit of the law”. For many of the celebrants, this is a particularly joyous occasion because the decision of the Court is based on a case for the decriminalisation of dagga.
Crazy, impossible, the product of a creative imagination fuelled by one too many puffs of the good stuff? Not quite and here’s why.
There is an increasingly enabling political and social environment in many parts of the world. Public attitudes and opinion about dagga, and thus associated national politics and legislation, are undergoing gradual but major shifts.
During the last few years there have been ever-expanding moves across the globe to legalise various uses of dagga. Uruguay has just become the first country to completely legalise both production and consumption while in many of the states in America dagga has been legalised in one form or another (with Colorado and Washington, including recreational use).
Various levels of decriminalisation have more recently taken hold in countries such as Croatia, Mexico, the Czech Republic, Belgium, Argentina, Spain and Jamaica. Meanwhile, Portugal enters its second successful decade as the only country in the world to have decriminalised all classified drugs.
On the home front, the national debate around legalisation and decriminalisation has begun to emerge from the shadows. Besides the voices and increasing socio-economic influence of South Africa’s millions of users and smaller but increasing numbers of growers, we now have South Africa’s first-ever officially recognised NGO (‘Fields of Green for All’ - FGA) dedicated to the struggle for legalised dagga, of which the legal case for decriminalisation is a crucial part.
And then there is the recently introduced ‘Medical Innovation Bill’ (submitted by IFP MP Mario Oriani-Ambrosini). The Bill, which aims to legalise dagga for medical, economic and industrial purposes, has elicited some sympathetic-sounding responses from the ruling party although it remains to be seen whether progressive sentiment translates into practical action.
It is not only this positive and more supportive macro-context that provides the pending constitutional rights case to decriminalise dagga, scheduled to be heard in the North Gauteng High Court just less than a year away on 7 March 2015, with added impetus. The case itself, which is being pursued by Julian Stobbs and Myrtle Clarke (a.k.a., the ‘Dagga Couple’) through FGA, is developing serious and convincing legal arguments for full decriminalisation that are focused on the equality clause [Section9(1)] of the Constitution.
The foundations of those arguments come from a 2009 paper written by former Rhodes Law School student and now practising attorney, Paul-Michael Keichel. In the paper Keichel uses as his point of departure, the unsuccessful 1998 case Prince v President of the Law Society, Cape of Good Hope, in which Rastafarian Gareth Prince challenged the prohibition laws based on Section15(1)2 of the Constitution which provides the right to freedom of conscience, religion, thought, belief and opinion.
His contention is that Section15 “was too narrow of a right for a successful challenge and that, two concessions should never have been made as they were based on insufficient evidence and misinformation”. These being that the objective, served by the prohibition of dagga, is legitimate; and that the limitation/prohibition actually serves its stated purpose.
Instead, Keichel argues that a much more solid basis for challenging the prohibition of dagga - contained in Section4 of the Drugs Act - is to apply the Harksen Test (emanating from a 1998 Constitutional Court case ruling) in relation to the equality clause in the Constitution. To satisfy the Harksen Test, an applicant “must first show that, either individually or as a group of persons, he is being treated differently (thus the need for a comparator)”. Additionally, “it must be shown that such differential treatment, or differentiation, is not rationally connected to a legitimate governmental objective”.
Using alcohol and tobacco (two legal drugs, whose distribution and use the state facilitates and regulates) as the comparators, Keichel applies the Harksen Test to the prohibition of the recreational use of dagga. Convincingly, he finds that at the first level “recreational [dagga] users are treated differently to recreational tobacco and alcohol users” since the former are criminalised for use, whereas the latter are not.
As such, prohibition of dagga would “only be legitimate if the state also prohibited tobacco and alcohol”. It thus follows that recreational use of dagga “should be decriminalised (i.e., that Section4 of the Drugs Act be declared unconstitutional), precisely because the prohibition objective is “illegitimate and, thus, at loggerheads with” the equality clause in the Constitution.
At the second level of the Test, Keichel argues that even if one assumes that there is a legitimate objective linked to prohibition, the question that must still be answered is, “does the law/differentiation achieve what is has been designed to achieve?” By contrasting “various statistics, medical evidence, histories and debates” a strong case is then made that in reality, dagga “is insufficiently legally and medically differentiable from tobacco and alcohol”. In other words, dagga is at the very least comparable to, if not less harmful than, these two other legal drugs. As such, the only logical and legal conclusion to draw is that dagga “should be classed accordingly and decriminalised”.
Giving even greater domestic political and legal space to the possible success of the decriminalisation challenge, as Keichel points out, are the South African government’s own arguments in the Prince case. Here, they argued that the complainant’s (Gareth Prince) case should be dismissed because he “did not seek … to have the prohibition [on dagga] declared unconstitutional and invalid, and to have such prohibitions removed from the respective act for the benefit of the whole population”.
This means that the door is opened further for a constitutionally-framed decriminalisation challenge and in particular, one that is framed as a benefit to all (i.e., an affirmation of the equality clause).
Now that’s something, regardless of whether you are a dagga user or not, not only worth imagining but fighting for.
Ambrosini is Correct
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