2018 was a big year for cannabis advocates in South Africa. It was the year the constitutional court ruled the government couldn’t invade the privacy of citizens who want to grow and consume cannabis at home.
The ruling was seen by many as South Africa’s opportunity to re-engage with its cultural ties to the plant and enter into the expanding global cannabis market. But judging by what’s written in the Cannabis for Private Purposes Bill, it’s clear lawmakers didn’t share the same goals.
While the legislation is on its surface a step forward in drug policy reform, its steep penalties and confusing rules feel like a step backward to populations that have been consuming dagga recreationally and traditionally for centuries.
Some lawyers say the legislation was drafted by people who don’t understand cannabis and are thus against it, missing opportunities for consultations with advocates and other related experts.
Apartheid tried to destroy South Africa’s rich cannabis culture
In South Africa, cannabis — commonly called dagga — has been widely used by Indigenous Khoisan and Bantu tribes. And the Basotho used its pain relief properties to ease childbirth.
The Apartheid government criminalized cannabis in 1922 before the international cannabis ban in 1925. During that time, the Apartheid government was a strong advocate for global prohibition.
Up until that point, cannabis was sold openly by mine storekeepers in towns. The Afrikaaner settler community used it in their teas and food. The plant grew freely in the local climate, so like wild fruits they could be harvested by anyone, mostly Indigenous people, and sold to city dwellers.
It was this interaction between races that the Apartheid government sought to minimize. Whites could not consume nor consort with Black people over something so beneficial. Such camaraderie would make racial segregation difficult.
Throughout Apartheid, the South African government continued to enact more stringent laws against dagga while supporting international bans. After Apartheid ended in the early 1990s, the new governments had neither the incentive nor will to change those laws. Regarding cannabis, the government has been protested, petitioned and lobbied multiple times, but it took a constitutional judgment to change the legislation significantly.
South Africa’s bill isn’t in the spirit of legalization
The proposed law follows the constitutional judgment to the letter, but not the spirit of legalizing cannabis. Key points of the bill are:
- it expunges minor criminal convictions;
- anyone who deals in cannabis or sells it to a child can face up to 15 years in prison;
- smoking cannabis in public can result in prison time of up to two years, while smoking around children can result in up to four years;
- people who live alone can have unlimited seeds and seedlings, but a maximum of four flowering plants for personal use’
- adults in the same household can have a maximum of eight plants for personal use; and
- a possession limit of 600 grams of dried cannabis for those who live alone, or 1.2 kilograms in homes with two or more adults.
The bill has frustrated advocates. Take Joost, who has been growing dagga for personal use for 30 years. He enjoys the act of cultivation and sharing it with friends. The way Joost sees it, the cannabis bill is a step forward, particularly in the decriminalization of cannabis, but he finds it confusing. Joost’s identity is being protected so he doesn’t face legal consequences.
“Why can an individual have unlimited seeds but only four flowering plants?” he asks. “Is it illegal to share plants with friends?”
The lack of clarity is a point of contention shared by Schindlers Attorneys, a South African firm specializing in cannabis law.
“Why, for example, must an individual without green fingers, or sufficient ‘private space’ (i.e. someone not ’empowered’ to grow their own cannabis) be precluded from approaching their ’empowered’ neighbour to purchase said neighbour’s overflow cannabis (much as one may do with home-grown vegetables)?” the firm wrote in their comments on the bill. “Does the state intend to discriminate against people who are not friendly with other cannabis growers and limit the rights extended in the judgment to those who are?”
The bill’s strict privacy restrictions might irritate the affluent, but it has enormous consequences for the millions who don’t have the space to grow and consume dagga in privacy. Additionally, the steep penalties propagate high financial and social costs in vulnerable communities.
Between 2017 and 2018, South Africa recorded 323,369 drug-related offences — 47 per cent of them led to convictions. While convictions for hijacking, home robberies and sexual offences stood at 2 per cent, 5 per cent and 9 per cent respectively. The high conviction rate in drug crimes is due to minor offences. People are more willing to plead guilty and pay a fine, rather than spend a weekend in jail.
Ultimately, the continued criminalization of cannabis will only increase the reach of organized crime and corruption.
Redraft the bill and include consultations, lawyer says
The black market will always exist, as it does with tobacco, says Paul-Michael Keichel, partner at Schindlers Attorneys.
“But you can undercut it by creating a regulated market in which people (dealers) aren’t having to be compensated for the risk of arrest,” he says. “Also, when you stop treating possession and use of cannabis as a crime, that entire aspect is eliminated overnight and valuable police and prosecutorial resources can be redirected towards fighting real crime.”
Cannabis for medical use is currently addressed separately by the Medicines and Related Substances Act. But it’s tightly regulated and controlled, so much so that it’s almost impossible for the average person to get their hands on legal medical cannabis, according Keichel.
Another hugely disappointing aspect of the bill for advocates is the absence of regulations to commercialize cannabis. It’s a missed opportunity considering the country’s ideal climate, established yet illegal small farms and need for industrial growth. According to the World Health Organization, South Africa may have 900,000 cannabis farmers and 350,000 traditional healers who grow their own cannabis for medical purposes.
“Most importantly, the bill is short-sighted and does not allow for the commercialization of the product in its many uses, which is something that could bring in much-needed revenue and provide lots of employment, especially in the present economic climate,” Joost says. “I do not believe the bill will affect me as I will continue to do what I have always done.”
The bill doesn’t provide clarity for law enforcement either. Schindlers Attorneys has raised questions on how the South African Police will ensure the limits are enforced in each household and under what circumstances they will be allowed to enter private property to count cannabis plants.
To fix the bill, Keichel proposes a complete redraft that includes a consultation process between lawmakers and cannabis experts. The bill should shift away from enforcing prohibition through the criminal justice system, he argues, and move towards helping people with substance use issues through the state’s healthcare and welfare systems.
Such a shift would make the bill align with the National Drug Master Plan, which acknowledges the war on drugs has failed and South Africa needs a new empathetic era of preventing, not causing more, harm. Keichel believes people fixated on prohibition should give up the fight and allow consenting adults to do whatever they please, so long as they aren’t infringing on the rights of others.
Ultimately, the legislation raises more questions than it answers. It doesn’t liberalize the use of dagga but heavily regulates it. Supporters face the misunderstanding, misrepresentation and stigmatization of cannabis that successive South African governments have nurtured for decades. The government can regulate cannabis more productively if the it takes a leaf from the liquor or tobacco industries.
Top image: Johannesburg’s central business district. Photo by Evan Bench via Wikimedia Commons