The argument to decriminalise cannabis

By Myrtle Clarke and Julian Stobbs Time of article published Jun 8, 2016

Share this article:

The cracks in the policies that prohibit the use, cultivation and trade in cannabis in South Africa are beginning to show.

Fields of Green for ALL representatives attended the recent UN Special Session on Drugs in New York as civil society delegates. Minister of Police, Nkosinathi Nhleko, and Deputy Minister of Social Development, Hendrietta Bogopane-Zulu, were there in their official capacity.

But South Africa’s comments on the outcome document were as bland as the majority of other countries, and a report that described the whole special session as a “damp squib” was quite accurate.

However, it was inspiring and enlightening to be part of a gathering of so many movers and shakers in the drug policy world, rarely in one place at one time.

The time for using the UN as an excuse for not making significant changes in the cannabis policy is over. Legal research done at Radboud University in the Netherlands finds that “the regulated cultivation and trade of cannabis for recreational use is permissible on the basis of the state’s positive human rights obligations.

“Pleas for the regulated cultivation and trade of recreational cannabis are often based on arguments related to individual and public health, the safety of citizens and the fight against crime: the so-called positive human rights obligations.”

A number of countries, which are signatories to the UN conventions, have indicated their intention to follow a path of “principled non-compliance”. South Africa could join these countries in exposing the shortcomings of the conventions by deciding their own policies through strategic litigation and consultation with its citizens.

This will require our authorities to acknowledge the fact that the harms of prohibition far outweigh the perceived harms of the plant.

Hot on the tail of international developments comes a statement by the Central Drug Authority (CDA), published in the South African Medical Journal this month.

“There is an ongoing national debate around cannabis policy… These recommendations emphasise an integrated and evidence-based approach, the need for resources to implement harm reduction strategies against continued and chronic use of alcohol and cannabis, and the potential value of a focus on decriminalisation rather than the legalisation of cannabis.”

All progressive drug policy debates speak about “harm reduction”. There are many ways to achieve this, the most common being therapy, rehab, needle exchanges, etc, but a priority should be to get the harmful practice of cannabis prohibition out of the way first.

Decriminalisation of cannabis is just that, the first stage of a harm reduction approach.

For us, the first stage of any harm reduction programme must be to stop arresting South Africans for low-level personal cannabis use.

There are an estimated 1 000 arrests a day for cannabis. If you are arrested on a cannabis charge and you do not pay a bribe, you will spend time in jail before you have a chance to plead your case. You are considered a threat to society and guilty until you prove yourself innocent.

You will most probably be arrested on a Thursday or Friday so the police can have the satisfaction of keeping you in jail over the weekend.

Being arrested for cannabis and the threat of a criminal record will cost you dearly in time, money, stress, humiliation and frustration.

Keeping cannabis illegal costs taxpayers R3.5 billion a year.

If your relationship is not working out, your partner can use your cannabis use against you much easier than if you were a drinker. A significant number of parents face losing access to their children because of cannabis prohibition.

It is seldom, if ever, that the cannabis use is a problem, it is usually a personal vendetta and dagga is the easy scapegoat. Decriminalisation does not cover this aspect of the harmful laws.

If there are disputes or retrenchments looming at work, your boss can call in the drug test squad and fire you with no compensation if you test positive for cannabis. Decriminalisation does not stop this.

The South African police threaten to continue with their practise of spraying rural communities with glyphosate poison while the WHO warns that the poison is probably carcinogenic.

The SAPS uses international conventions as its main reason for continuing this nefarious practice.

Decriminalisation will not stop this harm.

Millions have been spent on industrial cannabis trials over the past 20 years, but there are still no permits available. Vested interests, gatekeepers and corruption make sure that, even when trials are conducted in an open and honest way, nobody gets to see the results.

Decriminalisation will not help the hemp industry as long as licences are inaccessible to ordinary farmers.

Tens of thousands of South Africans use cannabis as medicine. The benefits have been lauded on national radio and TV, to say nothing of a constant flow of information on social media.

The IFP has made noble statements about its Medical Innovation Bill, but is vehemently opposed to responsible adult use. So who is going to play God then? Are we going to leave it up to the IFP to decide whether you are sick enough to use this plant or is some government committee going to decide that a terminally ill person’s rights are more important than those of a healthy individual?

Decriminalisation will not allow you to grow your own medicine and affordable cannabis medicine will remain illegal.

We understand that legalisation is a big leap for the CDA right now. They speak of an evidence-based approach but to them, use of cannabis equals abuse of cannabis.

Cannabis and alcohol are always lumped together, when the evidence says that alcohol is far more dangerous.

Substance-abuse disorders relating to alcohol claim many lives each year. No one has ever died from ingesting cannabis, even large amounts over many years.

Yes, it is good news that the CDA is calling for the decriminalisation of cannabis but it does not address the issues of the “black market” and continues to criminalise growers for a crop that has been a useful resource for hundreds of years. Is it going to be okay to possess a small amount of cannabis while cultivation and trade remain illegal? Decriminalisation is an obsolete, 20th century paradigm.

Both sides of the legalisation argument will be heard in a rational way in South Africa.

During “The Trial of the Plant” in the Pretoria High Court in July and August next year, evidence will give citizens and politicians a solid foundation with which to decide future policy.

South Africa has a strong judiciary, a Bill of Rights and a liberal constitution. These democratic tools give us the right to make up our own minds about cannabis, despite our government’s Brics affiliations putting them in a drug policy bed with the patriarchs of prohibition, Russia and China.

By making a statement that moves in the right direction, the CDA has inadvertently published a call to action. Now there is little room for the “gateway theory” or its lame counterparts, as the bigger question of what legal cannabis will look like in South Africa takes centre stage.

Will other political parties join the EFF in the legalisation debate and will these parties follow through with their promises after elections? Will South Africans come out of the cannabis closet?

Once we win in court, we will use the massive public support gained to make sure Parliament changes the law for all South Africans for all uses of this plant.

More than 50% of South Africans want cannabis law reform. The time is right for South Africans to contribute to a mature debate that informs the undecided and leaves the naysayers arguing on the wrong side of history. (Until they get sick and want to try cannabis medicine as a last resort, of course!)

Questions remain but the debate has just moved up a notch. Is this the death knell of the last apartheid law?

* Myrtle Clarke and Julian Stobbs are also known as The Dagga Couple, and represent Fields of Green for ALL, a cannabis legislation NPC

Share this article: