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The Clock is Ticking as State Races to Get Enabling Law Passed This Year But Lawfare Looms for ‘Absurd’ Cannabis Bill Unless Serious Constitutional Defects Are Fixed

The Clock is Ticking as State Races to Get Enabling Law Passed This Year But Lawfare Looms for ‘Absurd’ Cannabis Bill Unless Serious Constitutional Defects Are Fixed

Bret Hilton Barber

29 May 2022, 22:00:00

Parts of Cannabis Bill are “unconstitutional” and “absurd”

Parts of Cannabis Bill are “unconstitutional” and “absurd”

Stakeholders have warned Parliament that the new cannabis law is likely to be challenged in court unless state legislation drafters fix several constitutional defects in the Cannabis for Private Purposes Bill (CPPB).  The Bill continues to draw flak even though several amendments have been made to appease stakeholders – and it was clear from the Justice and Correctional Services Portfolio meeting in Parliament on 24 May 2022 that the Bill is open to legal challenge on a number of grounds.

The Committee’s Steve Swart (ACDP) said the section enabling future legislation to approve possible adult-use consumption of cannabis was “absurd”. “Effectively Parliament is giving itself permission to pass another law. We have that power already, so it’s unclear what purpose that section serves”.

Senior state law advisor Sarel Robbertse previously told Parliament that allowing the commercial trade in cannabis and related products was outside the Bill’s remit. 

This Bill, he said, was to give effect to the 2018 Concourt ruling that the private consumption of cannabis by consenting adults was not against the constitution. He expressed concern that a ‘commercial clause’ would also put South Africa in breach of its international obligations. In Robbertse’s view the Bill’s intention was actually to try and restrict commercial activity, and that the continued criminalization of cannabis is “necessary to ensure compliance”.

Committee accused of ignoring key stakeholder input

Last Tuesday’s Committee meeting saw tensions tip over as stakeholders accused the Committee of riding roughshod over the public by ignoring informed and evidence-based advice and input.

uMzimvubu Farmers Support Network director Ricky Stone was not impressed with the late notice given to stakeholders to give additional input on the amended Bill. “It is patently unconstitutional to give us such short notice to attend such an important meeting. We were only given notice on Sunday night and that made it very difficult for our Mpondoland directors to make themselves available”.

He said that the Network had made an important presentation to the Committee previously as to how traditional growers and healers could be accommodated in the Bill, but these recommendations had been ignored.

“There is no accommodation for the entrenched customary rights that have existed for over 500 years in some instances. We asked that international guidelines be considered in bringing them into the system, but no human rights have been taken into consideration”.

He said the process had been characterized by a lack of consultation, and that “if the chair says this Bill is going to be passed this year”, it was not going to be in its current “unconstitutional” form.

Commercial clause ‘a red herring of the highest order’

He said the “commercial clause” was a “red herring of the highest order” as it had no substance.

“It is incongruous to bring a commercial trade clause into a private use bill. Retire the Bill and introduce one over-arching cannabis law” he said. “The existing piecemeal piece of legislation is riddled with many contradictions”.

He said there should be “a single, all-encompassing cannabis law catering to all legitimate uses of cannabis, including medical, nonmedical, adult and industrial”.

He said the Bill could not favour Rastas over traditional growers: “the aMapondo people also enjoy spiritual and cultural practices related to cannabis. One religion or culture cannot be held higher than another”.

He also questioned why, if Robbertse had said that cannabis was to be treated in the same way as alcohol and tobacco, there were limits for possession or cultivation.

The Marijuana Board of South Africa’s (MBOSA) Stephen Khunou summed it up pithily by saying the Bill’s flawed departure point was that cannabis was bad.

He was backed up by Fields of Green for All’s (FGFA) Myrtle Clarke who asked why the proposed law was based on the perceived harms of the plant and not its benefits. She said FGFA rejected the Bill outright and that the amended version had even more constitutional defects than the previous one. The organization, which had submitted its Full Spectrum Manifesto to Parliament, said it was intensifying its push for full adult-use legalization.

“We will not give up until the guy who sells dagga in a matchbox on the street corner is allowed to enter the legal value chain” she said, bemoaning the fact that the Committee failed to understand the concept of the “full spectrum” of the plant and the general lack of knowledge about cannabis amongst lawmakers.

“FGFA stands in solidarity with the uMzimvubu Farmers Support Network who’s exceptional submission to this Committee was ignored”.

She added that FGFA also stood by the Rasta community but asked “why is a 100-year old religion favoured over a 500-year old culture?”

MP Steve Swart said he recognized the value of the FGFA’s Full Spectrum Manifesto.

Piece-meal amendments doing more harm than good

Most industry stakeholders agree that the Bill is not the right piece of legislation to guide the development of a cannabis economy.

Karoo Bioscience CEO Doron Isaacs said two deficiencies in the bill were that it seemed to tie any future “commercial activities” to the notion of “recreational cannabis” when it should also allow for medicinal use, and that it envisaged a future law to permit commercial activity in recreational cannabis.

“It seems a major missed opportunity not to advance this aspect [commercialisation] a little further in this bill. Our proposal in this regard is that the bill should empower the Minister of Justice and Correctional Services to promulgate regulations, in concurrence with the Minister of Trade, Industry and Competition, permitting commercial activities in cannabis,” he said.

“It must be recognised that most cannabis users will not grow their own cannabis. Nor will they be gifted it for no consideration. Most cannabis users will continue to purchase what they consume. This is the social and economic reality that the bill must take as its point of departure. As such, the bill in its present form would continue to criminalise most cannabis users in SA,” Isaacs said.

Cullinan & Associates lawyer Paul-Michael Keichel said the Bill was open to constitutional challenge and that the “piece-meal amendments are causing more and more harm”.

He said the Bill was “unconstitutional and discriminatory”  and that Section 36 of the Constitution, which dealt with the law of general application, emphasized that the default should be that everyone was subject to the same exemptions.

“Don’t try and retrofit this, let’s get new legislation on the table” said Keichel. “Let’s get it right this time around!”.

“The constitutional concerns are fundamental” he said, adding that the process was not made easier by the fact that government departments were not in alignment on cannabis policy and were “all sending out different messages”.

He was of the view that there was a need to go back to the drawing board to fix the “fatally flawed bill”.

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