Overcriminalisation occurs when a state passes vague, broadly worded and incredibly hard to enforce laws that create a plethora of criminal offences.
Due to the inherent deficiencies in these laws, when promulgated they lead to widespread criminalisation of citizens who inadvertently or unknowingly break the law.
I believe the term precisely illustrates what will happen should the Cannabis for Private Purposes Bill be signed into law by the President in its current form.
The very same custodian of the bill, the Department of Justice and Correctional Services, has recently admitted that “many aspects of the regulations in process are still unclear, including the permitted quantities involved and many definitions of the bill, at the foremost the question as to what constitutes a private space”.
The department has noted that regulations which will follow will clear up all ambiguities, however it remains concerning that the bill is still imprecise so late in the game. When it is eventually signed into law, one can expect a surfeit of legal challenges over interpretations of the bill and, in the worst cases, citizens getting punished for unintended or accidental transgressions of law.
Even more concerning, section 2.1(b) of the bill still incorrectly prohibits the sale of cannabis for private use. In an explanatory note following public comments on the bill at the National Council of Provinces, the Department of Justice made it clearly known that “cannabis cannot be bought or sold” and that cannabis can only “be acquired from someone else – but not by paying them for it”. Essentially then, the department foresees a context in which individuals who cultivate cannabis within the parameters of the law will freely give the produce to those who seek cannabis for private use – a kind of “cannabis-sharing community”.
I do not have to point out how improbable this is. In fact, such a prohibition is in stark contrast to emerging data regarding non-commercial cannabis cultivation behaviours. Research published in the International Journal of Drug Policy on non-commercial cannabis cultivation in Spain has found that many non-commercial growers cultivate cannabis to save money and as such, due to the time, effort, and resources that go into growing cannabis, are likely to engage in entrepreneurial behaviour with the additional produce they cultivate – ie, by selling the cannabis to willing buyers rather than simply giving it away.
Even more concerning, prohibitions on the sale of cannabis, when considering the socio-economic disparities in South Africa, can only be understood as prejudice, if not discriminatory.
Here, the department has seemingly forgotten that large sections of South Africa’s population live within poor and marginalised communities – the majority being black persons.
Many of these individuals seeking cannabis for private consumption do not have the necessary resources and knowledge to cultivate high-grade cannabis. It is inevitable that with no other option, these individuals are likely to purchase their cannabis from willing sellers – automatically criminalising their efforts to exercise cannabis consumption privately.
In stark contrast, members of more affluent communities will be able to cultivate high-grade cannabis for their own private use and will do so in their own private spaces.
Effectively then, if the government continues to place prohibitions on the sale of cannabis for private use, there will be no legal pathway to obtain cannabis for individuals who cannot cultivate their own cannabis, the majority of them in marginalised communities, or find someone who is willing to provide cannabis for free.
Not only does this represent discriminatory law making, but it also plants the seeds for the overcriminalisation of persons from less affluent and marginalised communities.
The government ought to reconsider its prohibition on the sale of cannabis for private use.
* Maposa is a political-economic writer and the director of Surgetower Associates, a specialist public policy, corporate and foreign affairs consultancy.