Weeding Out Legislative Hypocrisy; I believe the hesitance for dagga law reform in South Africa is also because the government feels obligated to uphold international sanctions. They are forgetting that the South African Constitution is above US policies and UN treaties. ~ MickeyD
In light of Dr. Mario Oriani-Ambrosini’s recent submissions in Parliament and the The Dagga Couple’s forthcoming (https://www.daggacouple.co.za/) litigious push for broad-based marijuana decriminalization, the following legal opinion should be publicly noted and/or debated and/or supported, for it forms one of the dominant bases upon which The Dagga Couple will be challenging marijuana prohibition through our courts.
Whilst the landmark Constitutional Court (“CC”) judgment of Prince v President of the Law Society, Cape of Good Hope 1998 (8) BCLR 796 (C) (“Prince”) has led many (including prosecutors and state attorneys) to conclude that the door has been closed on marijuana decriminalisation in South Africa, the writer would submit otherwise: that there are still good constitutional points to be raised, such as were never raised and were not, therefore, open for judicial consideration in Prince. The judgment is publicly available online. Therefore, it would not serve any purpose to herein repeat the facts of Prince, suffice it to say that various points ought to be highlighted.
Firstly, Mr. Prince challenged our applicable prohibitory laws on the basis (amongst numerous alternative arguments) of his status as a practicing Rastafari. His challenge was too narrow, being based on S15 of the Constitution (Freedom of Religion etc.) and asking for a legal exemption/exception for a small section of South Africa’s population.
Secondly, the CC accepted the unchallenged state submission that prohibition served a ‘legitimate governmental objective’. It is on this point that the writer would submit prohibition to be open to scrutiny. The governmental objective (repeatedly stated as being to prevent or minimise the ‘menaces’ of marijuana use) is not legitimate and, even if one presumes the aforesaid objective as being legitimate, is not served by prohibition. The following discussion seeks to expand on this point.
S9(1) of the Constitution states that “[e]veryone is equal before the law and has the right to equal protection and benefit of the law.” The ‘Harksen Test’ (one developed through our Courts in relation to S9) involves a two-fold enquiry. An Applicant must first show that, either individually or as a group of persons, he/she is being treated differently (thus there is need for a comparator). Secondly, it must be shown that such differential treatment is not rationally connected to a legitimate governmental objective. In summary, S9(1) requires the state to act in a rational, non-arbitrary, non-hypocritical manner.
As was mentioned above, it has been stated that the governmental objective of marijuana prohibition is to prevent the menaces associated with its use. In a vacuum (without context), this appears to be a legitimate objective. However, our constitutional jurisprudence requires that we do not assess such questions in isolation, but, rather, within an appropriate context. This is acknowledged by the CC’s continuous use of a comparator in equality/discrimination cases. Thus, as a hypothetical example, one could, in a vacuum, justify prohibiting the carrying of a stick, having identified it as a potentially dangerous weapon. However, given context, if one allows the carrying of a gun, but then seeks to prevent the carrying of a stick, one can no longer call on “it is dangerous” as a legitimate objective to justify a prohibition on sticks. Once the state draws a legislative line in the sand, that has to be taken to be the line in all cases, i.e. if it allows guns (more dangerous than sticks), then it has to allow sticks (if it wishes to avoid the accusation of arbitrariness and/or hypocrisy).
If one accepts the above hypothetical exercise in rationality, then it would follow that marijuana need not be shown to be harmless or ‘menace-less’. In order to argue for decriminalisation, one (should) need only scientifically establish marijuana as falling within the established legislative line in the sand. What, then, would one use as a comparator, or, what is the metaphorical gun within the marijuana context? The writer submits the most appropriate platform to constitute a comparison between those individuals (treated as “criminals”) who would use and/or possess marijuana for recreational purposes and those (treated as “functional people”) who, for the same purposes, possess and/or use tobacco and alcohol, alone or in combination. If marijuana can be shown to be as, or less, harmful (‘menace-ful’) than these two substances, then it can be said to fall within the legislative line in the sand and, accordingly, preventing the associated menaces can no longer be argued to be a legitimate governmental objective. Put differently, prohibition would fail the Harksen Test. Furthermore, if one can justify recreational use, then it is submitted that religious, medicinal and industrial use automatically follow.
Having undertaken the theoretical overview, what are the scientific facts surrounding the perceived marijuana menace? At this juncture, the writer must state that everything that follows would be open to scientific debate and/or contradiction and is based on various sources that, due to the vast nature of the research that is required, might not constitute a full or thorough picture. However, what is hoped to be taken from it is that properly-conducted scientific studies are increasingly challenging the popular and legal ‘understanding’ of marijuana as a ‘harmful drug’.
Proponents of prohibition would point out that marijuana has an intoxicating effect, which might endanger the wellbeing of users and innocent third parties. The answer to this is that our legal history has seen an individual become so intoxicated on alcohol that they were absolved of criminal capacity for the deaths that they had caused under its influence. The state did/does not, however, prohibit alcohol. Instead, it prohibits one from driving under its influence and provides justification, in appropriate cases, for an employer to dismiss an employee who arrives at work drunk etc.
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