In light of Dr Mario Oriani-Ambrosini’s submissions in and draft legislation submitted to Parliament and the ‘Dagga Couple’’s forthcoming litigious push for broad-based marijuana decriminalisation, the following legal opinion should be publicly noted and/or debated and/or supported, for it forms one of the dominant bases upon which said 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 (among 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.

Section 9(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 s 9[1]) involves a two-fold inquiry. 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, s 9(1) requires the state to act in a rational, non-arbitrary, non-hypocritical manner.

As 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 (and/or other drugs) 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’. As a general guide, the reader is referred to the scale-of-harms work done by Professor David Nutt.

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.

Excessive marijuana abuse may have an effect on mental health and or cause mental health problems (although numerous studies dispute this). Alcohol abuse results, amongst other concerning ailments, in delirium tremens (this is not disputed), which is, again, of a sufficiently serious nature so as to exclude an individual’s criminal capacity.

Marijuana has been repeatedly identified as a cause of crime. One need only to refer to the common term ‘liquid courage’ to recognise that the same could be said for alcohol. It is also doubted that the studies, which purportedly link marijuana to crime, take account of the fact that it is a traditionally ‘lower class’ indulgence, meaning that the people who use it are more likely to commit crime in any event.

Various other ill health effects are often highlighted. It suffices to say that these are increasingly areas of scientific dispute, with many serious scientific authorities recently punting the medicinal benefits of marijuana. For example, whilst no sane person denies, these days, that tobacco causes and/or contributes to lung (and other) cancer(s), a recent study by the David Geffen School of Medicine at the University of California revealed that marijuana users might have less chance of developing lung (and other) cancer(s) than people who smoke nothing at all! In any case, it seems that, given the statistics around alcoholism’s side effects, tobacco’s lung cancer etc., the state does not consider the potential for ill-health and/or death as sufficient justification for prohibition.

Finally, marijuana’s addictive nature is used as ammunition for prohibition. Some studies would suggest that it might be mildly psychologically (maybe physically) addictive (in the same way that some people might be said to have chocolate addictions). Alcohol and especially tobacco have been found to be highly physically addictive (hence the shakes and violent moods associated with withdrawal).

Taken out of the vacuum and scientifically thrust into the context of tobacco and alcohol, can the prevention of marijuana’s menaces still be cited as a legitimate governmental objective? The writer would submit that, until both tobacco and alcohol are both prohibited (unlikely), they cannot. It simply fails the rationality inquiry and/or the Harksen Test.

Even if assumed to be a legitimate objective, despite the above argument, long-term studies would suggest that prohibition does not, in fact, succeed in preventing any of the above menaces. In this regard and in the event that the 1920s USA didn’t teach us anything, the reader is referred to (amongst others) comparisons between the Netherlands (possession and use allowed) and the USA (until recently, prohibition strictly enforced), as also what The Anti Drug Alliance South Africa has, after much consideration, concluded on the subject. Thus, the Harksen inquiry, again, encounters difficulties, in that, there is no connection between prohibition (or differential treatment) and the objective that it seeks to achieve.

Finally, it is worthy to note that there appears to be an exponential trend towards decriminalisation around the world (many US states included). Lawmakers and judges are evidently recognising the difficulties in rationally justifying prohibition, as well as learning the many benefits associated with legalisation (e.g. taxation, regulation, quality-control, biomass, beneficiation, job creation etc.).

The time for decriminalisation is ripe. It would be a pity for South Africa to wait until the point where we were simply jumping on the international bandwagon, as opposed to progressively contributing to the momentum that is, undeniably, growing around the world. Let us honestly and transparently base our prohibitory laws on the best available evidence – not on sentimental/historical gut feel. DM

Paul-Michael Keichel is a Senior Associate at Schindlers Attorneys and part of the legal team representing The Dagga Couple in their upcoming Constitutional Challenge.