Cannabis is a plant that has only recently entered the process of decriminalisation through legalisation after decades of criminal prohibition. On 3 November 2020, a panel of experts participated in a webinar titled, “Legalising Cannabis in South Africa. Where are we at and where are we going?” which was hosted by UP’s Anthropology and Archaeology Department. This webinar highlighted several important issues surrounding the recent proposed Cannabis for Private Purposes Act of 2020. The current discussion and debate surrounding the legal position of cannabis is the culmination of a story that started centuries ago in colonial South Africa.
Origins of Cannabis Prohibition
Suresh Patel, the stakeholder manager of Fields of Green for ALL, explains that in the late 18th century Indian slaves were shipped to South Africa by British colonists to work in the sugarcane plantations. These Indian slaves brought with them a plant colloquially known as ‘bhang’ or ‘dagga’ which played a central role in the religious and cultural practices of the Indian slaves. Patel explains that the British administrators were opposed to the use of cannabis by these slaves, and as a result, he states, “the seeds of prohibition were planted in the late 18th century.”
During the League of Nations’ Geneva Opium convention in 1925, the “habit-forming” substances list was in the process of being drafted. This list included substances such as opium, cocaine and morphine. JC van Tyen, the Secretary of the Prime Minister of the Union of South Africa, sent a letter to the League of Nations insisting that cannabis, in its entirety, be included in this list. Patel continues to say that “South Africa had a fundamental role in the war on drugs, but specifically cannabis.” Subsequently, cannabis was prohibited internationally, and the ‘war against drugs’ intensified with time.
This sparked an international wave of prohibitionist legislation. In South Africa, Patel explains that “the Medicines and Related Substances Act 101 of 1965 and the Drugs and Drug Trafficking Act 140 of 1992 are the two main pieces of legislation blocking the legalisation of cannabis.” For decades, cannabis use, trade and control in South Africa was a serious criminal offence that had harsh punishments.
Cannabis Prohibition in a democracy
In 1994, South Africa adopted one of the most progressive constitutions globally. South African citizens were endowed with a new set of rights that included the right to privacy and freedom of practising one’s religion. These two constitutional rights are what has mainly been used to challenge cannabis prohibition in South Africa.
The first case of note involves Garreth Prince, who was not allowed to practice as a lawyer because of his open use of cannabis as a Rastafarian. He challenged the law based on his constitutional right to freedom of practising religion.
The next case of note involves Julian Stobbs and Myrtle Clarke, better known as the ‘Dagga Couple’. The first case they were involved with, as Patel explains, was the “Trial of the Plant” which took place in 2017. Patel explains that Fields of Green for ALL, “used [the case] to bring forth experts and evidence to dispel the so-called harms of the plant, and focus on the harms of prohibition that people often don’t talk about.”
This trial, coupled with the Davis Judgement in 2017, fast-tracked the Constitutional Court ruling on 18 September 2018. Patel says that in the court case, “the judges unanimously said they were decriminalising cannabis growth, possession and use in a private space – private space limited to a residential dwelling.” Although they did not make a judgement on selling or dealing cannabis.
After the Constitutional Court’s ruling, parliament was given two years to amend the appropriate legislation. In August 2020, Cabinet passed the Cannabis for Private purposes Act of 2020, which is open for public comment until 30 November 2020.
Yet according to the panel of experts in the webinar, there are numerous reasons as to why this bill can be considered problematic and discriminative.
The proposed Cannabis Bill
The Cannabis for Private Purposes Act of 2020 is an important first step in legalising the cannabis industry. It allows for cannabis use, possession and cultivation in a private area. It also proposes to expunge any prior criminal records and protect children. Yet according to the panel of experts in the webinar, there are numerous reasons as to why this bill can be considered problematic and discriminative.
The proposed bill is still in violation of South Africans’ right to privacy and freedom. Patel explains that the bill “speaks about plant counting as well as limits of how much dried cannabis can be held in your home.” This requires that state officials still enter citizens’ private space in order to enforce the law, by ensuring they do not exceed the prescribed quantities.
Patel further explains that the bill is based on the perceived harms of the plant rather than its potential benefits. Patel explains that “there is no empirical evidence to say where these perceived harms came from.” In addition, there is no evidence to suggest that going over the prescribed amount “is dangerous and therefore it deserves punishment by sending someone to prison.” Dr Tracy Muwanga, a trans-disciplinary post-doctoral fellow for the faculties of Law and Natural and Agricultural Sciences at UP, adds that it seems to be more focused on “creating a punitive bill rather than focussing on other aspects of the plant.”
Paul-Michael Keichel, a partner at Schindlers Attorneys, who worked on the Trial of the Plant and the Con Court case, emphasises that it cannot be “den[ied] that there are established harms associated with cannabis and cannabis use.” But the question becomes, “do we criminally prohibit something just because it is bad for somebody?” The harms associated with alcohol and tobacco use are also well-established , but the quantities you are allowed to possess and consume, in public or private, is not regulated to the same extent as cannabis would be.
In addition, Keichel continues to explain that the proposed bill is not respecting the values upon which the constitution is based. The South African Constitution explicitly states that the Republic of South Africa is founded on the following values: “Human dignity, the achievement of equality and the advancement of human rights and freedoms.” Keichel argues that “this bill is not enhancing people’s freedoms if we tell them they are not free to grow or consume more than a certain amount of cannabis in the privacy of their own home.”
The panellists all warned against the proposed bill potentially disadvantaging and discriminating against certain individuals. Keichel elaborates that the constitution itself “mandates you to be very mindful of, [if] in trying to prevent those harms, you are inadvertently doing more harm, because then not only is your law unconstitutional, but your application of the law is unconstitutional.”
Socio-economic impact of the bill
Philasande Cele, an MSc student and researcher from Wits University, argues that the proposed bill criminalises poverty. There are over 900 000 existing black cannabis farmers that are excluded from participating in the economy, because of an inability to legally trade or sell cannabis. Cele therefore explains that the proposed bill “promotes the black market and we see it as a hindrance to economic participation of black people.”
In addition, Cele explains that the bill is potentially discriminatory against women and children. The vast majority of ‘illegal’ cannabis growers in South Africa are women, who use the cash crop to support their families. In addition, there are various child-headed families in which the child is not old enough to work legally, and simultaneously needs to go to school. Cannabis is a plant they can grow and sell, as a way of supporting themselves and their families financially.
Patel explains that the bill does not take into account that there are “high-density, low-income areas in South Africa” where there are often several adults residing within the same household.
The proposed bill allows a maximum of eight plants for a dwelling with two or more adults. As Dr Muwanga elaborates, “this already discriminates against larger families that are often found particularly in rural areas.”
Other ways in which the bill is potentially discriminatory involves those who use cannabis for religious and cultural purposes. Dr Muwanga explains that “these particular practices usually occur in public spaces for one and secondly, it usually involves the gathering of more than two adults.” In addition, individuals who own little to no private land will be forced to illegally farm on communal land, which leads to directly discriminating against “poorer people who live in rural areas.”
The UP and cannabis community is at the forefront of cutting-edge discussions and research in order to facilitate the emergence of the legal cannabis industry.
Stagnating commercial opportunities
Dr Muwanga explains that the bill does not cater to the commercial aspect of cannabis, which is problematic for two reasons. Firstly, “the bill ignores the fact that there is already a market for cannabis,” and Dr Muwanga suggests this market should be accommodated and – in turn – regulated. This is because “[if] you can’t purchase it [legally] […] you have to inevitably go the illegal route in order to get cannabis.”
A second problem that emerges from the lack of a commercial outlet is that “it is neglecting the potential economic opportunities […] that would include the potential for new revenue generation,” Dr Muwanga explains. Patel insists that “the government needs to focus on cannabis – especially post-this-COVID-19 pandemic, which has decimated the economy – and we really need to unleash this plant in its entirety.”
Academic and scientific research
Dr Muwanga explains that the bill does not make provision for scientific and academic research in higher education and research institutions. Accommodating research for academic and scientific purposes at these institutions is paramount “because we’re looking at the development of a wider strategy for legal cannabis moving forward […] so that should include different aspects and sectors as well.” In addition to this, South Africa will also meet several UN conventions South Africa is a party to.
Keichel also elaborates that the various cannabis users, traders and growers need to be involved when drafting this legislation, but “these people were not approached, and this legislation was put together by people who do not understand cannabis or cannabis-use, and this is why it is so easy to criticise.”
Investigating the role and meaning of cannabis in the lives of various actors is central to developing relevant and effective legislation. Keichel continues to explain that “ultimately what parliament should be doing […] is speaking to cannabis users. They should be looking at the scientifically established harms which might legitimately seek to be prevented,” instead of drafting a reactive piece of legislation to the 2018 Constitutional Court ruling.
Marc Wegerif, a lecturer in Development Studies at UP, elaborates on why exactly UP is interested in the development of this legislation. “We just believe that there is enormous opportunity in this in all sorts of ways. We know that cannabis has such a wide variety of applications, from the fibre for production of various goods through to recreational use, spiritual use, religious use, medicinal uses, and so on”, he explains.
The proposed Cannabis for Private purposes Act of 2020 is another step towards legitimising and legalising the South African cannabis industry. The proposed bill is also a good example of legislation that was not drafted based on empirical evidence nor the socio-economic significance it holds for South Africans. In order to ensure that the legislation being developed is effective and progressive, stimulating discussions amongst professionals in this area is essential.
In addition, being allowed a legal foundation on which to conduct scientific and academic research is necessary in order to produce empirical evidence of the impact and effects of cannabis on South Africans. The UP and cannabis community is at the forefront of cutting-edge discussions and research in order to facilitate the emergence of the legal cannabis industry.