Why the government faces a tough time keeping private dagga use in SA illegal

Taking emotional and moral reasoning out of the dagga debate in South Africa, leaves very little in the way of justification for the country’s ‘disproportionately harsh’ criminalisation of private use.

In a post published on his site, Constitutionally Speaking, Constitutional law expert Pierre de Vos briefly breaks down the history of dagga criminalisation in South Africa, and why the government faces a tough time fighting against a recent High Court supporting its private use.

The High Court last month ruled that banning the personal use of dagga by adults in their homes was against the constitutional right to privacy. The court ordered that Parliament had 24 months to amend the current drug laws to bring them in line with the constitution.

The decision marked a success for long-time dagga advocates Jeremy Acton and Rastafarian Garreth Prince, who have famously argued for the legalisation since the turn of the millennium.

The state, however, has appealed the ruling, saying that the country’s drug laws should not be changed.

According to de Vos, the court case marks an interesting time for the country, as the judgement upheld that citizens had a right to privacy, as enshrined in the Constitution, and the state failed to convince it that private dagga use posed enough of a risk to warrant such broad criminalisation.

“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,” de Vos said.

“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.”

Specifically, the data presented by the state showing that dagga was detrimental to health (moreso than cigarettes or alcohol) and brought with it social ills was easily contradicted by the dagga advocates, using widely published medical literature around the plant.

While one cannot say that there are no harmful effects of dagga use – the state failed to show that criminalisation was the only or most effective way to combat any abuse or criminal activity around the issue.

“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,” de Vos said.

“In short, the state was unable to prove that the limitation on the right to privacy was justified in terms of the limitation clause.”

With no real way to justify the extent that the Constitution has been flouted in the case of using dagga in your private capacity – and the ruling finding the state’s argument of social ills to be lacking – the case for making private dagga use illegal is largely a moral and emotional one.

According to de Vos, South Africa’s criminalisation of dagga has roots in racial segregation, where ‘moral panic’ among the white leaders – where they worried that blacks and whites were becoming too friendly with each other thanks to using the drug – pushed the move against its use.

Moral disapproval has continued to bolster support for its criminalisation, he said.

“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,” de Vos said.

You can read the full post on Constitutionally Speaking.

Read: Government wants private dagga use to remain illegal

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Why the government faces a tough time keeping private dagga use in SA illegal