A law that criminalises children who possess or use cannabis has been declared unconstitutional by Gauteng High Court (Johannesburg) Judge Ingrid Opperman, who said the way children were still being treated, two years after the Constitutional Court decriminalised cannabis possession and use for adults, was redolent of apartheid laws. In what a Sunday Times report describes as "a sweeping judgment" that could transform the way children who use drugs are treated by schools and the criminal justice system, Opperman said:
* Dozens of children have been unlawfully detained after testing positive for cannabis.
* A “drug child programme” implemented by prosecutors in Johannesburg operates outside the Child Justice Act and "(throws) the proverbial book at these children".
* Sending children to corrections centres was cruel and inhuman.
Opperman said only the Constitutional Court had the power to suspend part of the Drugs & Drug Trafficking Act in respect of children, otherwise she would have done so. She issued a temporary moratorium on such prosecution. The judgment was a sequel to an appeal by the parents of four children who had been placed in the drug child programme. After hearing their case, Opperman invited the Centre for Child Law to make submissions.
The judge emphasised that her ruling “does not engage with questions like whether children should use or possess cannabis or whether the use of cannabis is good or bad for the health”. It was to extricate children from a "legal quagmire" and prevent sending children on diversion programmes that involved being locked up at a corrections centre.
She said her judgment must be sent to all members of the South African Judicial Education Institute who sit in the child justice court, all prosecutors at child justice courts and the Magistrates’ Commission.
The Centre for Child Law has welcomed the judgment, notes the Cape Times. “Exposure to the criminal justice system is deeply traumatising for children, particularly when there are risks of detention. Criminalisation is also a form of stigmatisation that is both degrading and invasive. Efforts should be made to employ strategies that do not criminalise children and instead employ prevention and treatment mechanisms,” the centre said.
“The children alleged to have been guilty of the offence of possession of drugs or cannabis and referred for compulsory residence, had spent on average 4.75 months at the youth care centres. This is exceedingly harsh if regard is had in particular to the provisions of section 3(b) of the Child Justice Act, which provides that a child should not be treated more severely than an adult would have been treated in the same circumstances,” the centre said.
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