The inability to meet Constitutional Court deadlines has far deeper implications than for those affected by the two cannabis-related laws Parliament has been trying to get together. It goes to the heart of the State’s being, the ability to write sensible, enforcable laws for the good of all its people.
Deputy Justice Minister John Jeffery is to ask the Constitutional Court for an extension for the deadline for the Drugs and Drug Trafficking Bill of 2022 to come into law. This comes after a lack of capacity in the State’s legal drafting department came woefully under the Parliamentary spotlight at a virtual meeting on 2 September 2022 to discuss how to handle legislation that was consistently missing ConCourt deadlines.
At the same meeting, Justice and Correctional Services Portfolio Committee chair, Bulelani Magwanishe, called for a serious discussion between the Executive and Parliament on how to prioritize legislation affected by court decisions, saying the failure to now meet a second Concourt deadline was totally unacceptable”.
“As you can see the implications for this Bill are huge, really huge” he said at the 2 September 2022 Committee meeting. “It cannot be acceptable that within the value chain there would be people who do not see the magnanimity of this problem and treat this like any other legislation, because the duty of all of us is to manage risks on behalf of the State; that is the duty of all of us, whether you are an official or a politician, that is our duty, that we have to manage risks on behalf of the State”.
“If those risks materialize under our watch, it’s a serious problem, a serious one” said Magwanishe. The chair confirmed that Jeffery should ask for a Concourt extension but said he still hoped the Bill would be passed by the National Assembly by the end of the month.
That is extremely wishful thinking as there are three serious flaws in the Bill:
Cannabis remains included as a Schedule 2 substance, and this is going to send the cannabis community through the roof;
Any new additions to the list would have to be passed by Parliament and not specialists; (think of the exploding number of new illicit chemicals and combos coming onto the market all the time, each one requiring Parliamentary approval to be declared illegal);
The Department of Health has had no input into the Schedules, raising the question as to how comprehensive the lists of illicit drugs are.
Does South Africa really need a future parliamentary debate between the Honourable Julius Malema of the EFF and the Honourable Justice Minster Roland Lamola of the ANC over whether the inclusion of Acetyldihydrocodeine, (except preparations and mixtures containing not more than 20 milligrams of acetyldihydrocodeine per recommended or prescribed dose) on the list is at the behest of White Monopoly Capital with SAHPRA backing?
MP's were shocked at last Friday's briefing as to the extent of the muddle within the Department of Justice and how ultimately this would reflect on them.
The danger of the Drug Trafficking Bill being rushed through the process is in the longer term implications, particularly if cannabis remains scheduled as an “undesirable, dependence producing substance”.
The short-term crisis facing MP’s that if the Bill isn’t rushed through, there are two major implications that could cause a crisis in the criminal justice system if the Bill does not become law before the Concourt deadline of 17 December 2022:
Certain hard drugs would become “legally” tradable, or difficult to prosecute, leading to a potential explosion in substance abuse;
All current prosecutions under the existing Drugs Act could fall away because of its unconstitutionality.
This was confirmed to MP’s by Senior State Law advisor Sarel Robbertse, who admitted the legislation had been delayed because the legal development department had skipped a crucial meeting and had also been affected by Covid-related capacity issues. Robbertse and his team will have to wait until the 16 September 2022 deadline for public comment on the Drugs Bill before they can put together a redraft.
It new amendment will then have to be approved by the Committee, passed into law by the National Assembly, go through the National Council of Provinces before being signed off by President Ramaphosa before being implemented.
Most observers would see this as a highly unlikely timeline to succeed, particularly with the ANC leadership contest coming up at the end of the year. The only way out of the crisis is for Concourt to extend the Drugs Act deadline while MP's attract the structural defects in the current bill.