When emotions and the private moral convictions are taken out of the equation, it would be difficult to justify the criminalisation of specific acts unless there is credible evidence that these acts are harmful to individuals and to society more broadly and that there is no way to protect society effectively against these harms other than through criminal sanction.
It is seldom a good idea to use the criminal law to try and enforce the moral views of some people on the entire society (often with the excuse that this is needed to “protect” society from some ill-defined harm). Two recent events – the death of an Afrikaans author and the High Court judgment which invalidated the criminal prohibition on the use of dagga – illustrate this point quite starkly.
Earlier this week it was announced that Afrikaans author Karel Schoeman ended his own life. As Mariam Thamm explains, the writer left a letter in which he reveals that he had decided years ago “to end my life, or at least try and end my life, timeously”.
In the letter Schoeman explains that an attempt to end his life at the age of 75 had failed and says: “I am 77 and it has become necessary now to tackle this task while I still have mobility, physical freedom and the mental clarity to make a meaningful decision in this regard and to execute it effectively.”
As the law in South African at present prohibits doctors, family members or loved ones from assisting people who wish to end their lives to do so with dignity, it is unclear how Schoeman actually ended his life. If you assist someone to die you can be prosecuted for murder.
One of the assumptions here is that it is morally reprehensible for anyone to assist someone who wishes to end his or her life to do so. Another is that to allow assisted dying will potentially be harmful to individuals and to society as a whole.
The same kinds of assumptions loom large when people try to justify the criminalisation of the possession and/or use of cannabis (well, most of us just call it dagga). As Justice Sachs noted in 2002 in his minority decision in the case of Prince v President of the Law Society of the Cape of Good Hope the use of dagga is deeply rooted in South African indigenous culture. Its possession and use was only criminalised by the colonial regime in 1928 and this was done for political and so called “moral” reasons.
Until 1921 dagga was sold openly by mine storekeepers in the towns and grew wild in much of South Africa. It was banned partly because it was feared that its use would make it more difficult to uphold racial segregation. Referring to an academic author Sachs notes:
“Only in that year (1921) were there serious signs of moral panic focusing around dagga, when South African criminological thinking came to be obsessed with interracial sex, the provision of alcohol by whites to blacks and the reverse flow of dagga. Of particular concern, he notes, was the ‘camaraderie’ which led some to lay aside race and other prejudices with regard to fellow addicts.”
Although “moral” disapproval of the use of dagga continues to bolster support for the criminalisation of dagga, the state now justifies the law on dagga on the basis that dagga is uniquely harmful to its users (well, at least more harmful than alcohol or other legal intoxicants).
For me the most interesting aspects of the recent Western Cape High Court judgment which declared invalid the criminalisation of the cultivation, possession and use of small quantities of cannabis in a person’s private home, was the inability of the state to provide credible evidence about the uniquely harmful effects of the drug.
When legislation is attacked because it is alleged to infringe on any of the rights protected in the Bill of Rights – as it was in the recent Western Cape High Court dagga judgment in Prince v Minister of Justice and Constitutional Development and Others – there are usually two stages to the inquiry.
First, you ask whether the legislation imposes a limitation on one or more of the rights protected in the Bill of Rights. Then, second, if the legislation does infringe on any of the rights, you ask whether the infringement (or limitation) is not justifiable in terms of the limitation clause. If the limitation is found not to be justifiable the impugned provision is declared unconstitutional. If the limitation is justifiable the impugned provision remains legally valid.
The Western Cape High Court held that the relevant provisions in the Drugs Act and the Medicine and Related Substances Act which prohibit the possession and use of cannabis infringed on the right to privacy protected in section 14 of the Bill of Rights. This was the easy part of the judgment.
The crucial question in the case was whether this limitation on the right to privacy was justifiable in terms of the limitation clause contained in section 36 of the Bill of Rights. Section 36 states that the rights in the Bill of Rights may be limited only in terms of law of general application:
“To the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: a)the nature of the right; b)the importance of the purpose of the limitation; c)the nature and extent of the limitation; d)the relation between the limitation and its purpose; and e)less restrictive means to achieve the purpose.”
The state was required to produce evidence to the court to justify the limitation on the right to privacy. If the state was going to succeed in defending the criminalisation of the use and possession of dagga, it therefore needed to show that the criminalisation served an import purpose and that there was no way to achieve this purpose other than to criminalise the use and possession of dagga.
Put differently, the state needed to show that it was necessary to criminalise the use and possession of dagga. It would not be sufficient for the state to show that dagga was criminalised to enforce the moral views of some on society as a whole. Rather, the state would have to show that criminalisation was necessary to protect the public against serious potential harm which could not be mitigated in a manner that infringed on the right to privacy in a less drastic way.
This the state was unable to do. The state submitted evidence by doctors and police officers who contended that dagga had addictive properties and generally had harmful effects on the body and the brain, which included memory loss. They also claimed that dagga was often used with other harmful drugs and that its use led to domestic violence and an increase in other violent crimes.
Much of this evidence were contradicted by Professor Mark Shaw who – based on an extensive body of academic literature – argued that the state’s “experts” had overstated the potential harm of the use of cannabis. Prof Shaw also pointed out that to the extent that dagga was harmful the criminalisation of its use appeared to be an ineffective way of addressing the harm. Instead, other harm reduction strategies that eschewed criminal sanction would probably have a greater chance of success.
Professor Shaw also cited a report from the South African Central Drug Authority which noted that alcohol – and not other drugs like cannabis – is the substance that causes the most societal and individual harm.
In evaluating this evidence Judge Dennis Davis concluded that the evidence provided by the state to justify the criminalisation of dagga “was singularly unimpressive”. Unlike the evidence provided in support of the applicant’s case, the state relied on evidence by non-experts who often did not cite (or cited selectively) the large body of academic literature on the topic. Davis then concluded:
“Expressed in legal terms, the evidence as set out in this judgment supports the argument that the legislative response to the personal consumption and use (of dagga) is disproportionate to the social problems caused as a result thereof.”
But even if one assumed that dagga was as harmful as the “expert” evidence provided by the state alleged, there was another problem for the state to justify the criminalisation of the possession and use of dagga. This is that the state was unable to prove that less restrictive means could not be used to achieve the purpose of preventing harm to society and to individuals.
To be constitutionally valid, any limitation on the right to privacy would have to be narrowly tailored to achieve its purpose. The question in this case was whether a general criminal prohibition on the possession and use of even small quantities of dagga in a private home was carefully focused. If the criminalisation of the use and possession of dagga was too sweeping a measure, the limitation would not be justified. The High Court held that the criminal law was not the best way to deal with any harm emanating from the private use of small quantities of dagga. Thus:
“The present prohibition contained in the impugned legislation does not employ the least restrictive means to deal with a social and health problem for which there now are a number of less restrictive options supported by a significant body of expertise. The additional resources that may be unlocked for use of policing of more serious crimes cannot be over emphasised.”
In short the state was unable to prove that the limitation on the right to privacy was justified in terms of the limitation clause.
The judgment illustrates that when emotions and the private moral convictions are taken out of the equation, it would be difficult to justify the criminalisation of specific acts unless there is credible evidence that these acts are harmful to individuals and to society more broadly and that there is no way to protect society effectively against these harms other than through criminal sanction. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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