Campaigns for cannabis heat up

THE world-wide trend to decriminalise cannabis has given a boost to campaigners in South Africa as mainstream medical opinion now favours the use of cannabis products by patients suffering from a range of illnesses.

Buoyed by the fact that more and more countries are decriminalising the herb, two separate campaigns have emerged and are gaining momentum: one in Parliament for legislative change and another in the courts — another stab at having the ban on possession of cannabis being declared unconstitutional.

A lot has changed since Rastafarian would-be lawyer Garreth Prince lost his Constitutional Court case — by the narrowest majority — to decriminalise the use of cannabis by Rastafarians.

More and more countries are decriminalising and last year Uruguay was the first country to completely legalise cannabis.

The policy arguments in favour of decriminalisation are strong: the medical benefits; the absurdity of a ban on cannabis while the more harmful alcohol and tobacco are tolerated; the racist history of how cannabis came to be banned in SA — academics have argued that preventing inter-racial contact was at the heart of the ban; the potential of hemp for industrial purposes; the tax potential; the prohibitive cost of policing and prosecuting cannabis offences; the ineffectiveness of banning in the war on drugs.

These arguments have gained traction and the idea of decriminalisation is not as outlandish as it was 15 years ago. Earlier this year, the issue took centre stage in Parliament with an impassioned plea for decriminalisation by Inkatha Freedom Party MP Mario Oriano-Ambrosini, who has cancer and has been relying on cannabis for pain relief. President Jacob Zuma said he would ask Health Minister Aaron Motsoaledi to look into it.

However, policy arguments are irrelevant in a court.

As the majority judgment in Mr Prince’s case explicitly says: the case is not about whether criminalisation is good or bad, it is about whether it is constitutional or unconstitutional.

And what has not changed since Mr Prince’s case is the law. The Drugs and Drug Trafficking Act still classifies “cannabis (dagga)” (sic) as a part III, schedule 2 undesirable, dependence-producing substance and makes its possession an offence.

But the “Dagga Couple” — life partners Julian Stobbs and Myrtle Clarke — hope to succeed where Mr Prince failed by relying on entirely different grounds.

While Mr Prince’s case was decided on the right to freedom of religion, Mr Stobbs and Ms Clarke freely say that they — just like a third of middle-class South Africans — use cannabis recreationally.

In their pleadings, they refer to a host of constitutional rights they think are infringed by the law on cannabis, including the right to dignity, the right to freedom and security of the person, the right to freedom of association and the right of access to healthcare services. They even refer to the right to have the environment protected.

However, a recent article by one of their lawyers suggests that, since the pleadings were first drafted, they have narrowed their case and plan to base it predominantly on the right to equality before the law (section 9(1) of the constitution).

The couple’s attorney says in a recent article that the criminal prohibition of cannabis breaches the right to equality before the law because it irrationally differentiates between cannabis users and alcohol and tobacco users.

Alcohol and tobacco are more dangerous than cannabis but cannabis users are the ones treated as criminals, they say.

While laymen may think “of course it’s irrational”, the challenge for the Dagga Couple’s legal team is that, in law, it takes very little to show a rational connection.

The legal test for rationality is that the law in issue must be connected to a legitimate government objective — in this case to prevent or mitigate the harm associated with cannabis.

The Constitutional Court has said: “The question is not whether the government could have achieved its purpose in a manner the court feels is better or more effective or more closely connected to that purpose. The question is whether the means the government chose are rationally connected to the purpose, as opposed to being arbitrary or capricious.”

In this case, once you accept that there is some kind of harm in using cannabis, then you may have to accept that the government has a legitimate objective in preventing its use. Whether banning it is the best way to prevent the harm is a policy, not a legal, question.

As the University of Cape Town’s Prof Pierre de Vos said in a blog post on a different matter: “Anyone who has read the Constitutional Court judgments on equality will know that if one wants to win one’s case with an equality argument, one will have to argue that the law differentiates on the basis of race, sex, gender, sexual orientation or a similar ground and thus constitutes unfair discrimination in terms of section 9(3).”

The section 9(1) route is a difficult one.

However, the everything-but-the-kitchen-sink approach to the pleadings means the couple could still explore other constitutional routes more fully. The right of access to healthcare especially might be a safer tree to bark up.

The Dagga Couple are also not putting all their eggs in one court case basket and are just as active in campaigning for policy change. Other cannabis smokers might do well to do the same.

Picture: THINKSTOCK

THE world-wide trend to decriminalise cannabis has given a boost to campaigners in South Africa as mainstream medical opinion now favours the use of cannabis products by patients suffering from a range of illnesses.

Buoyed by the fact that more and more countries are decriminalising the herb, two separate campaigns have emerged and are gaining momentum: one in Parliament for legislative change and another in the courts — another stab at having the ban on possession of cannabis being declared unconstitutional.

A lot has changed since Rastafarian would-be lawyer Garreth Prince lost his Constitutional Court case — by the narrowest majority — to decriminalise the use of cannabis by Rastafarians.

More and more countries are decriminalising and last year Uruguay was the first country to completely legalise cannabis.

The policy arguments in favour of decriminalisation are strong: the medical benefits; the absurdity of a ban on cannabis while the more harmful alcohol and tobacco are tolerated; the racist history of how cannabis came to be banned in SA — academics have argued that preventing inter-racial contact was at the heart of the ban; the potential of hemp for industrial purposes; the tax potential; the prohibitive cost of policing and prosecuting cannabis offences; the ineffectiveness of banning in the war on drugs.

These arguments have gained traction and the idea of decriminalisation is not as outlandish as it was 15 years ago. Earlier this year, the issue took centre stage in Parliament with an impassioned plea for decriminalisation by Inkatha Freedom Party MP Mario Oriano-Ambrosini, who has cancer and has been relying on cannabis for pain relief. President Jacob Zuma said he would ask Health Minister Aaron Motsoaledi to look into it.

However, policy arguments are irrelevant in a court.

As the majority judgment in Mr Prince’s case explicitly says: the case is not about whether criminalisation is good or bad, it is about whether it is constitutional or unconstitutional.

And what has not changed since Mr Prince’s case is the law. The Drugs and Drug Trafficking Act still classifies “cannabis (dagga)” (sic) as a part III, schedule 2 undesirable, dependence-producing substance and makes its possession an offence.

But the “Dagga Couple” — life partners Julian Stobbs and Myrtle Clarke — hope to succeed where Mr Prince failed by relying on entirely different grounds.

While Mr Prince’s case was decided on the right to freedom of religion, Mr Stobbs and Ms Clarke freely say that they — just like a third of middle-class South Africans — use cannabis recreationally.

In their pleadings, they refer to a host of constitutional rights they think are infringed by the law on cannabis, including the right to dignity, the right to freedom and security of the person, the right to freedom of association and the right of access to healthcare services. They even refer to the right to have the environment protected.

However, a recent article by one of their lawyers suggests that, since the pleadings were first drafted, they have narrowed their case and plan to base it predominantly on the right to equality before the law (section 9(1) of the constitution).

The couple’s attorney says in a recent article that the criminal prohibition of cannabis breaches the right to equality before the law because it irrationally differentiates between cannabis users and alcohol and tobacco users.

Alcohol and tobacco are more dangerous than cannabis but cannabis users are the ones treated as criminals, they say.

While laymen may think “of course it’s irrational”, the challenge for the Dagga Couple’s legal team is that, in law, it takes very little to show a rational connection.

The legal test for rationality is that the law in issue must be connected to a legitimate government objective — in this case to prevent or mitigate the harm associated with cannabis.

The Constitutional Court has said: “The question is not whether the government could have achieved its purpose in a manner the court feels is better or more effective or more closely connected to that purpose. The question is whether the means the government chose are rationally connected to the purpose, as opposed to being arbitrary or capricious.”

In this case, once you accept that there is some kind of harm in using cannabis, then you may have to accept that the government has a legitimate objective in preventing its use. Whether banning it is the best way to prevent the harm is a policy, not a legal, question.

As the University of Cape Town’s Prof Pierre de Vos said in a blog post on a different matter: “Anyone who has read the Constitutional Court judgments on equality will know that if one wants to win one’s case with an equality argument, one will have to argue that the law differentiates on the basis of race, sex, gender, sexual orientation or a similar ground and thus constitutes unfair discrimination in terms of section 9(3).”

The section 9(1) route is a difficult one.

However, the everything-but-the-kitchen-sink approach to the pleadings means the couple could still explore other constitutional routes more fully. The right of access to healthcare especially might be a safer tree to bark up.

The Dagga Couple are also not putting all their eggs in one court case basket and are just as active in campaigning for policy change. Other cannabis smokers might do well to do the same.

Source

Campaigns for cannabis heat up