Here’s the good news: the “Dagga Couple” trial, which has captured the public imagination since it kicked off on 31 July, has not been a complete waste of time. While the State and its co-defendants Doctors for Life have done their best to queer the pitch, all they have really achieved is an exposure of their own hypocrisies. So no, the trial will not bring an immediate answer to the question of cannabis legalisation in South Africa, but it may do something equally important – it may take the country beyond the lies of “morality” and into a truthful assessment of the plant. By KEVIN BLOOM.
I. Lovejoy’s Defence
“What about the children!? Won’t somebody please think of the children!?”
Thus goes the catchphrase of Helen Lovejoy, recurring character in The Simpsons, who introduced herself in the ninth episode of the first season as “the gossipy wife of the minister”. Since that long ago episode, Mrs Lovejoy has become famous for singing her signature tune every time something bad happens in the fictional town of Springfield. The phrase, we are told by people who study such things for a living, is a cliché that has achieved the status of a rhetorical device – because it substitutes reason for emotion, it is what is known as a logical fallacy.
And so, welcome back to courtroom 6E of the entirely non-fictional Pretoria High Court, which in the last two weeks has become ground zero for the homegrown version of a phenomenon that’s been variously referred to in American academia as “Lovejoy’s Law”, the “Helen Lovejoy Defence”, “Helen Lovejoy Syndrome”, and “think-of-the-children-ism”.
Given that the phenomenon’s purpose, according to the cultural theorists who coined the terms, is to sidetrack debate from the real issues – to, as it were, inject some performance-enhancing testosterone into the legs of the weaker argument – let us zero in on a particularly choice aspect of the cross-examination of Professor David Nutt by Advocate Reginald Willis.
“Do I take it,” asked Willis, on the morning of Thursday 11 August, “that in much of your thinking you have not fully considered the rights of the child?”
Replied Nutt: “No, I have always considered the health of the child, which I suppose is what’s relevant here. It was the key issue when we were looking at methodologies for comparing regulatory regimes.”
As Willis, the front man for the Christian anti-abortion coalition Doctors for Life, must have known, Nutt had once served on the independent committee that advised the UK government on its drug policy. He had published a pair of papers in leading medical journals on the “comparative harms” of drugs – papers detailing how the UK government had flouted its own laws by implementing policy in contravention of evidence of harms. Nutt, who is currently serving as the head of neuropsychopharmacology at Imperial College, London, had in fact been sacked by the UK government for this exact reason.
Nevertheless, after insisting on reading aloud from the text of the United Nations Convention on the Rights of the Child, Willis continued: “I haven’t heard you reflect on the interests of children, and families for that matter, which you concede are affected. What is your comment on that statement?”
Nutt smiled a little, but kept his cool. “I believe the worst thing you can do to a family is prosecute a parent for taking a drug,” he said, “and then take them away from their children and put them in prison, possibly for the rest of their lives, even in some countries execute them. That is much more destructive to the family than the likelihood of the impact of drug use. So it is precisely to protect families that I am in favour of decriminalising the personal possession of all drugs.”
The professor, to give some real-world validation to his point, cited the example of Portugal, which had decriminalised the possession and use of all drugs – including marijuana, heroin and cocaine – in 2001, opting to come at the problem from the perspective of its public health officials instead of its policemen and judges. For Nutt, as for almost anyone who’d been paying attention, this had been an effective way of reducing crime, reducing costs, and reducing the overall burden on Portuguese society. In his opinion, Nutt said, such an approach would be of the most long-term benefit to families.
But Willis wasn’t finished. He folded his arms, looked down his nose into the witness box, and fired what he must have thought were his deadliest slugs into the chest of Nutt. “Is not the worst thing you can do to a child… is expose that child to drugs and cannabis?”
“No,” said Nutt, “the worst thing you can do to a child is deprive it of its parents.”
II. Folk Devils
Here is Stanley Cohen, the celebrated South African-born sociologist who founded the Centre for the Study of Human Rights at the London School of Economics, on how the “War on Drugs” fits into his self-defined concept of “moral panic” (from the third edition of his seminal Folk Devils and Moral Panics):
“Moral panics about psychoactive drugs have been remarkably consistent for something like a hundred years: the evil pusher and the vulnerable user; the slippery slope from ‘soft’ to ‘hard’ drugs; the transition from safe to dangerous; the logic of prohibition.”
So what is a moral panic? According to Cohen, it is a feeling of fear spread among a large group of people that some evil threatens the well-being of society. A Dictionary of Sociology defines a moral panic as “the process of arousing social concern over an issue – usually the work of moral entrepreneurs and the mass media”.
If ever there was an organisation that could qualify for the collective epithet of “moral entrepreneurs”, it is Doctors for Life. As Daily Maverick observed in the last instalment of the Cannabis Chronicles series, DFL joined the State as the eighth defendant in this groundbreaking case because it had grown concerned about “the role of dagga in crime, women and child abuse”. Still, even though they had also declared on their website that “the legalisation of dagga is not a matter of popular opinion but needs a scientific approach”, they did everything in their power to ensure that Dr Donald Abrams – arguably the world’s foremost authority on the medicinal properties of cannabis – would not take the stand. DFL’s spoiling tactics in the first week of the 19-day trial consisted of a) contesting the right of the plaintiffs to live-stream proceedings, which took up two court days, and b) arguing at length that they were under no legal obligation to wade through the thousands of pages of evidence submitted by the expert witnesses for the plaintiffs, which wasted another two days. The upshot? Dr Abrams had to return to his cancer patients in California without giving so much as a minute’s worth of testimony.
In the second week of the trial, the morally panicked narrative that underlay the motives of DFL brought the same tactics to bear on the expert testimony of Professor Nutt.
“Are you here to give evidence as a scientist or as a lobbyist?” asked Willis, at around 11:00 on 10 August 2017.
“Ah, please just answer the question, professor.”
“I am a scientist.”
“So we can disregard all of your evidence in relation to lobbying?”
“I have not been lobbying, I have merely been expressing my opinion as to how the science that I have done relates to and informs decisions on drug policy.”
The back and forth for the rest of the morning went to the heart of what’s become the global front-line in the cannabis legalisation debate. Willis put it to Nutt that he had been “waffling on” and “making it up” since he’d begun giving evidence on Friday 4 August, that he was not an expert on drug regulation, and that DFL would consequently be asking Judge Ranchod to remove most of his testimony from the record. Nutt, for his part, put it back to Willis that he had dedicated his career to dealing with exactly these issues as an international peer-reviewed scientist and governmental adviser, and that his CV was a transparent demonstration of this fact.
Once again, Stanley Cohen’s Folk Devils and Moral Panics gives us pause for thought: “The concept of moral panic evokes some unease, especially about its own morality. Why is the reaction to Phenomenon A dismissed or downgraded… while the putatively more significant Phenomenon B is ignored, and not even made a candidate for moral signification?
“These are not just legitimate questions but the questions… [because] they strengthen the very position they are trying to attack.”
In other words, Cohen was presenting in academic language what the rest of us understand as “shooting oneself in the foot”. Which was pretty much what Advocate Willis did the next day, during a recess in proceedings, when he referred to Nutt as a “moron”. The advocate for Doctors for Life hadn’t realised that his microphone was live.
III. Logical Fallacy
The start of the third week of the trial saw Craig Paterson take the stand. As the affidavit submitted by the plaintiffs to the North Gauteng High Court makes clear, Paterson is a history lecturer and PhD candidate at Rhodes University whose 2009 masters thesis was entitled “Prohibition and Resistance: A Socio-Political Exploration of the Changing Dynamics of the Southern African Cannabis Trade, c. 1850-Present”. His research focused on the widespread use of cannabis in South Africa before the colonial era, and specifically on how the racist theories of the colonisers had informed the policy of cannabis prohibition as it pertained to the indigenous and non-white communities. With Paterson, therefore, it was the turn of the State to do away with reason.
“You have been presented by the plaintiffs as an expert witness,” said Advocate Bogoshi Bokaba when the time came, on the afternoon of Monday 14 August, for Paterson’s cross-examination. “What is your particular area of expertise… if any?”
Paterson, like Nutt had done repeatedly before him, smiled. He provided a short summary of his CV. And then the needle got stuck in a familiar groove – Bokaba questioning Paterson’s qualifications, and Paterson detailing in various ways his background as a practising historian, a background that included not just his research and lecturing experience at Rhodes University but his consulting work for the United Nations Development Programme.
“I am asking you all these questions,” Bokaba eventually said, “because we are going to submit that you are not an expert of any shape or form.”
Was there any acknowledgement on the part of Bokaba that the history of cannabis prohibition in South Africa was a history anchored in legislated racism? Did the State recognise no irony in the fact that it refused to engage with such a notion? Did it occur at all to the defendants – who, aside from the minister of police, included the minister of social development, the minister of justice and constitutional development, and the minister of health – that the worldview they had inherited from their erstwhile colonial overlords was a worldview subject to correction?
Nope: there wasn’t, they didn’t, and it did not.
The tactics, once again, were not to engage with the message; the tactics were to shoot the messenger. As of this writing, on Thursday afternoon 17 August, nothing new has come to light in courtroom 6E. Further delays have been caused by the defendants hopelessly late submission of an additional 4,000 pages of evidence. This means that the plaintiffs, Jules Stobbs and Myrtle Clarke – aka the Dagga Couple – will not complete their scheduled submission of testimony. Hemp expert Tony Budden will not be taking the stand, nor will economics expert Vladimir Lakcevic, and nor will the Dagga Couple themselves. What has happened, though, is that the country has watched it all play out live. And next time, when round two kicks off, the country will know a lot more.
Maybe then we can start getting to the real nub of the dagga debate in South Africa. Never mind the children – who, in a properly legislated environment, wouldn’t be allowed to buy it anyway (ref: alcohol and tobacco) – what’s best for the tens of thousands of subsistence growers in Pondoland, Msinga and vast swathes of the Eastern Cape? DM
Photo: In court, Professor David Nutt, head of neuropsychopharmacology at Imperial College, London, pointed out that decriminatlisation of cannabis and other drugs had proved to be an effective way of reducing crime. Photo: Felipe Trueba/(EPA)