Leading cannabis lawyer Paul-Michael Keichel has called on the South African government to urgently issue an emergency executive order to stop police from making cannabis arrests.
Police continue to target illegal cannabis growers despite reform initiatives
The Schindlers’ attorney and several other participants attending the National Cannabis Master Plan virtual workshop on 30 March 2021 made the point that government was sending mixed signals by embracing cannabis reform on the one hand yet continuing to arrest and prosecute citizens for dealing and possession.
‘Police are doing more harm than protecting citizens’
“People are locked up every day for exercising their human rights, including their right to try to earn a respectable living through cannabis. We respectfully submit that you ought to address this problem first, whilst you debate grand(er) policy. This isn’t only about how much money we can make. It’s about treating drug users empathetically” said Keichel.
“Our keystone policy should be to not do more harm than we prevent. Part of that equation is to account for the harm that befalls an individual (and their families) when they are dragged through the criminal justice system. Being arrested and prosecuted harms someone far more than cannabis ever could. Therefore, we should be loath to use the criminal justice system in any drive to “prevent harm”.
Keichel: executive order to stop cannabis arrests should be issued immediately
Session chairman Julian Jafta said he was aware the issue had been raised in discussions between the Presidency, the Department of Justice (DoJ) and the South African Police Services (SAPS). He said SAPS had made its own input into the NCMP and that it basically sought legal clarity on how to distinguish between hemp, medicinal and recreational cannabis. He undertook to raise the issue again with the DoJ.
Many delegates were critical that there were no representatives from either the DoJ or SAPS attending the workshop. Jafta said they had been invited. Keichel said the message the DoJ needed to hear was:
“It is, indeed, your mandate to see to that justice is done when a crime is committed (against society). But arresting and prosecuting cannabis users and matchbox cannabis dealers is not doing justice. You’re using the blunt force of the criminal justice system to “prevent harm” (so government says) but are doing more harm to society than what’s being prevented. As human beings, please put your feet down and say enough. No more arrests and prosecutions. These people being arrested are our brothers and sisters – not our enemies.”
Allegations of Police Involvement in cannabis dealing
One participant said part of the problem was that individual police officers were deeply involved in the drug trade, claiming that merchants in a certain part of the Eastern Cape scored their weed from the local police station! A Rastafarian participant said his community in particular were continually harassed by police and that he had just returned from the funeral of an elder who had succumbed in injuries after being beaten by police.
Jafta said that incidents like this should be reported to the Independent Police Investigating Directorate (Ipid). “It’s clear that existing legislation criminalizes cannabis users and this is an immediate challenge. The reality is that there is no legal cannabis market in South Africa until the law changes”.
Legal activist Gareth Prince said the laws contemplated by the government at the moment would do more harm than good. He said the proposed Cannabis for Private Purposes Bill would only exarcabate tensions between police and cannabis users as the sale of weed would still be outlawed. “If the government is serious about embracing the cannabis economy, someone growing 1 000 plants should be given a medal, not locked up in jail!”
Prince – police will always be a problem unless there’s a local legal cannabis market
Keichel made the point that “People are still being dismissed from their jobs for testing positive for THC. It’s unconstitutional, but employers haven’t woken up to that. Government must speak out to its citizens with a united and clear voice. We are moving forward with cannabis – not backwards”
He said there should be some restorative justice model built into the NCMP: “People who have previously done time for possession crimes should be prioritised for jobs in the industry (not precluded because of criminal records). THAT is restorative justice.”
Letter from Schindler’s Keichel to the Department of Agriculture, Land Reform and Rural Development (DARDD), posted during the 30 March 2021 NCMP workshop:
Thank you for today’s presentation and for the (over-all) positive strides that you have made. It was uplifting, because it showed that someone was listening! 😊
There not having been much room for engagement (too many participants/voices) I’ve elected to allow others to make verbal representations and to satisfy myself with some written submissions. Please provide feedback and insight on the following, so that we may constructively engage further (we were told to email you):
- If we are moving in this direction, why not an emergency executive order (now) to the SAPS and the NPA to stop arresting and prosecuting people for petty cannabis crimes (this being “the new policy”which you say that you need)?
- You spoke of consulting with “industry”. Who? Small farmers and sole proprietors (the people who need this most)? What about civil society organisations? When will there be a lekgotla that includes all of us?
- You spoke of protecting ‘the small guys’ from monopolies by ‘the big guys’? Have you considered a cooperative model (like Zimbabwean tobacco)? Self-regulated hubs, accountable to the (hopefully reasonable and rational) law?
- Amendments to the Drugs and Drugs Trafficking Act? Indeed wholly necessary, but why not abandon trying to regulate the component parts of the plant and only regulate the uses to which the plant may and may not be put? Then, you can dispense with (unviable) testing for and policing of things like the levels of cannabinoids in raw material. It will never work. You (government) must always make sure to not do more harm through your laws than the harms that you think you’re preventing (s36 of the Constitution).
- On this note, what harms are you preventing by keeping the (taxable) trade in “craft” cannabis illegal? Are these harms not outweighed by dragging your citizens through the criminal justice system?
- Don’t “zone” areas for cannabis, with respect. Unpoliceable and unviable. Let the people grow feely and earn a living from what they’re able to produce. What harm would you be you preventing by proposing zones? It’s unnecessarily complicated.
- You talk about us never having had the capacity to manufacture off the back of what’s been an illegal resource. Why not leave this to entrepreneurs? This doesn’t have to be ringfenced to government. Let industry drive innovation.
- Given the positive steps that you’ve taken here, why must we be made to sue government for reform in respect of things like psilocybin (“magic mushrooms”)? Why not a drug policy lekgotla, so that we can change our laws, once and for all, to enable human rights and scientific thinking, prevent harms, and allow for innovation and the advancement of our democratic society? We propose to stop (further) harming drug (ab)users. Help them, instead. I refer to your National Drug Master Plan, which anticipates this …
- Now that we are allowed to cultivate and consume in our own, private spaces, what (additional) harm is prevented by criminally prohibiting people from being able to purchase and sell that cannabis from/as authorised dealers (thereby ensuring quality control and harm mitigation)?
- Why are you proposing to put limits on the number of plants that people can grow and use in private (e.g. the Bill)? What do you mean by “use”? What if I want to grow a cannabis hedge, or for cattle fodder, or to build an outbuilding from hempcrete? For that matter, if I want to smoke my plants, what harm is prevented from limiting me to 4 plants, which would have arisen if I’d been allowed 10, or unlimited?
- How much scope is there for change to this Master Plan? You talk about wanting guidance as to how to implement it, but is it cast in stone? Here, I’m asking practically. Will there be more invitations for meetings and comments, such as these?
Thank you for your time and consideration.