South Africa’s system of prohibitory drug laws is a hypocrite, writes Paul-Michael Keichel in Mail & Guardian, and here's the smoking gun.
We’re all aware that in 2018, the Constitutional Court decriminalised the personal and private use of cannabis. I do not intend to unpack that judgment, but to note the following premises I ask you to bear that in mind throughout.
First, the court accepted that cannabis, while harmful, is no more so than tobacco and alcohol.
Second, despite the first premise, it went on to find that “(d)ealing in cannabis is a serious problem … and the prohibition of dealing in cannabis is a justifiable limitation …”
One would think then, that, because it is at least as, if not more, harmful than cannabis, dealing in tobacco would be considered a “serious problem” and that preventing it would be a “justifiable limitation” and something from which the South African population needed to be sheltered. Right? Wrong!
On 14 June 2022, the Supreme Court of Appeal (SCA) handed down its appeal judgment in the case brought by British American Tobacco and others against the emergency COVID-19 lockdown regulations banning the lawful trade in tobacco.
This is from the court’s own media summary: “The SCA consequently held that the limitation of the rights to dignity, bodily and psychological integrity, freedom of trade and deprivation of property was not justified … (it) unjustifiably limited the autonomy of persons to regulate their own affairs… exercise control over their bodily and psychological integrity. It infringed the right to freedom of trade in that farmers could not sell and nobody could buy their tobacco.
“Tobacconists were unable to trade. Farmers were unable to use their farms productively and manufacturers, their costly factories and equipment …”
We now have a direct, albeit probably unintended, contradiction between the wisdom of the Supreme Court of Appeal and that of the Constitutional Court.
There are only two ways out of this. Either this judgment of the appeal court must be overturned by the apex court on further appeal, or, if the judgment stands, which it should, then the state (which carries the constitutional onus of justifying rights limitations) must throw in the towel in its persistent attempts to criminally ban the “recreational” sale of cannabis and allow for it, with regulatory restrictions akin to, or certainly no more strict than, those imposed on the trade in tobacco.
That said, I’ve never thought it enough to stop at cannabis, which just so happened to have presented as the obvious first toe in the waters of reasonable, rational and humane drug law reform. Let us not forget that tobacco and alcohol are drugs from a scientific standpoint – finished and klaar.
They’re just ones that Western society has used for enough time to blind itself to the notion that its distaste for – and thus banning of “unfamiliar lower-class indulgence(s)” rendered itself the exact, unevenly-handed hypocrite that its own (supposedly liberal) legal systems were supposed to prevent it from being.
In 2010, Professor David Nutt, internationally-respected neuro-psychopharmacologist, and others published a study in The Lancet titled, Drug Harms in the UK: a multi-criteria decision analysis, which, in summary, concluded we’ve got it all wrong in our rankings of the relative harms (to both users and society) of drugs and that this incorrect unscientific thinking has infected how these drugs are banned and/or regulated in the UK (but, by inference, worldwide) – thus crying out for drug law reforms that would see us regulating in the reasonable, rational and constitutional manner that the law otherwise requires.
As far as I am aware, Nutt’s 2010 publication has stood the test of time and survived the rigours of international scientific and statistical peer review and criticism. It thus stands as something on which we can reasonably rely.
Additionally, Nutt was the key witness in the live-streamed (check YouTube) 2017 Trial of the Plant by the so-called Dagga Couple in the Gauteng High Court (Pretoria). He was cross-examined on his findings by both the state and the right-wing organisation, Doctors for Life, but emerged, in my opinion, almost entirely unscathed.
He was made only to endure the kinds of questions and challenges that had one post-traumatically twitching at the memory of our HIV/Aids-denialism and our once calling for a scientific inquest into why lightning had “targeted” a low-income area.
If I am correct that the Supreme Court of Appeal tobacco judgment necessitates an unlocking of the right to “recreationally” consume and trade in cannabis, as also that Nutt’s 2010 publication gets things right to an acceptable degree, then, being all less harmful than cannabis, we ought to (necessarily correcting for our unique socioeconomic circumstances) reform our drugs laws to allow for the (reasonably regulated) use of and trade in gamma-hydroxybutyrate, benzodiazepines, ketamine, methadone, mephedrone, butane, qat (not our local kat), anabolic steroids, MDMA (ecstasy), LSD, buprenorphine psilocybin and other low-harm entheogens.
The argument ought also to hold true for certain drugs I have excluded, established to be less harmful than alcohol, but more so than cannabis – but, why push my luck?
Ultimately (remembering, again, that the state must answer this) why not allow for people to turn their backs on alcohol and tobacco, even cannabis, and elect, as supposedly liberated adults, for lower-harm “indulgences”? The answer can only be one founded in hypocrisy and I challenge the state to contradict me.
Paul-Michael Keichel is an attorney with environmental law firm Cullinan & Associates where he focuses on the legal aspects of cannabis, psilocybin and related natural medicines.
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