SA Drug Policy Initiative: Proposed Cannabis Bill does not reflect the spirit of 2018 ConCourt ruling

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The South African Parliament recently called for public comment on the Cannabis for Private Purposes Bill. In the opinion of the South African Drug Policy Initiative (SADPI), the Bill does not reflect the spirit of the 2018 Constitutional Court ruling which declared unconstitutional the existing legislation criminalising the use, possession, and cultivation of cannabis for private use.

While affluent communities will benefit enormously from the Bill as it stands, its requirements effectively exclude the millions of South Africans who lack the space to grow and consume cannabis in such strict conditions of privacy. What’s more, it discriminates against the indigent by imposing a de facto prohibition on their use and cultivation of cannabis; and leaves vulnerable communities at risk of excessive penalties and continued human rights abuses by the criminal justice system.

Equally as important, it has little prospect of reducing the scope for organised crime and corruption. Therefore, it is obvious that a sensible, non-discriminatory approach, rather than one focused on criminalisation and punishment, is needed to control the use and trade in cannabis products.

To this end the regulatory framework for the use, production and trade in cannabis should be based on those laws and bylaws that control the far more harmful drug, alcohol. Although alcohol-related regulations are by no means perfect, they provide examples of laws that seek a balance between the controlled trade of a recreational drug and measures to mitigate the potential harms of that drug. For example, in South Africa it is legal for adults to produce alcohol products such as wine and beer for private use.

While commercial production requires licensing and adherence to established production and marketing standards. These licenses are not restricted to large commercial operations or “Big Alcohol” – witness the extensive production of wine on independent wine farms and the growing numbers of craft beer makers, artisanal gin producers and similar enterprises.

The laws around cannabis should build and improve on those that are already in place to regulate the liquor industry. This includes limited private production, as well as requirements and standards governing commercial production, marketing, packaging, sale, and so on. The COVID-related ban on alcohol and tobacco products has shown South Africans the inevitable harmful consequences that even a temporary prohibition of recreational drugs can inflict on a country.

Chief amongst those consequences are violations of human rights, adverse impacts on the economy and the enabling of organised crime structures that, in the words of SARS Commissioner Edward Kieswetter: “Have marketed themselves to previously honest smokers and drinkers, that are now embedded in the supply chain; and it will take us years to reverse the impact.”

Parliament now has the opportunity to produce a cannabis bill that is not only sensible, fair and non-discriminatory; but one that will remove the cannabis trade from the untaxed, informal sector and allow it to make a significant contribution to the upliftment of rural communities, the South African economy and the national fiscus.

So, now is the time for concerned South Africans to make submissions to Parliament and insist on a revision of the existing Cannabis For Private Purposes bill. This must be done to reflect, not only the spirit of the Constitutional Court’s Ruling, but an appreciation that the continued criminalisation of the cannabis trade will cause far more harm to individuals, communities, good governance and the economy than the legal regulation thereof.

Issued by the South African Drug Policy Initiative

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