As of 1 January 2023, the province of British Columbia demonstrated that a trial is to be conducted which will last three years, in which people over the age of 18 will be able to possess up to 2.5grams of drugs such opioids, cocaine, methamphetamine and MDMA without arrest, seizure or charge. Yes! You have read this correctly.
At first, I was so astonished at such a law being allowed that I could not help but wonder whether there was a legitimate and rational reason for passing it. More so, I was left to ponder, with a great deal of bewilderment, if South Africa should be following suit. Before you dismiss this outright as an inconceivable thought or, at worse, utter madness, it is important to put matters in perspective and weigh the pros and cons of such a contentious idea.
By passing such a law, Canada has joined a handful of countries with existing decriminalisation policies on drug use, such as Portugal, the Czech Republic, the Netherlands, and the US. Decriminalising drugs resides in a constitutional no-man's land, neither legal nor illegal. Essentially Canada's new policy entails that possession of drugs will not result in handcuffs and that a substance use disorder will not be treated as a crime.
What was Canada's reasoning?
According to director Dr Werb of the Centre on Drug Policy Evaluation at St. Michaels Hospital in Toronto, arresting people for a drug problem is not the solution. Criminalising drug use disproportionately targets the marginalised, including black and indigenous communities, the unhoused and people with mental illness.
According to Canadian experts, the stigma stemming from criminalisation means that people are less likely to seek help and more likely to use drugs alone, which contributes to higher rates of overdose. Canadian research indicated that people who are incarcerated, whether for drug-related reasons or not, are at a substantial risk of overdosing upon release.
Criminalisation exacerbates a vicious cycle of poverty, stigma, unemployment, and reoffending – all of which make it more difficult to neutralise drug use. Maybe the approach that Canada has undertaken may include cynics with some indisputable evidence and facts through this scientific trial method.
What is South Africa's current position?
In 2018, the Western Cape High Court found the criminalisation of home use and cultivation of cannabis as specified in the Drug Act of 1992 unconstitutional. However, with regard to other substance use, the Drug and Trafficking Act of 1992 provides for the prohibition of the use or possession, or dealing in and of certain acts relating to the manufacture or supply of certain substances. It further provides for the obligation to report drug-related offences and detention in specified circumstances.
In addition, the Prevention and Treatment of Drug Dependency Act of 1992 makes provision for the development of programmes and regulates the establishment and management of treatment facilities.
When one looks at the use of drugs in South Africa, scholars here, such as Karl Peltzer and Shandir Ramlagan, suggest that changes in South Africa's political, economic, and social structures have rendered its population more vulnerable to drug use than before.
Although the prevalence of drugs such as heroin, cocaine and cannabis in South Africa seems lower than in countries such as US and Australia (which may be because of our reintegration into the global market or the lack of accuracy in collecting information), we do not compare well when compared to our African counterparts. Research indicates that first-time admission to treatment centres for drug use has increased two-thirds to three quarters of all admission to treatment centres. Heroin and over the, counter drugs and cocaine have had the highest readmission rates.
The Western Cape, for instance, saw a rise in methamphetamine admissions in recent years. Socioeconomic factors are a particularly relevant concern in South Africa. Social deprivation is accompanied by high crime levels and drug abuse. In the midst of this, South Africa pins itself on the basis of its policy and law reforms which aid in protecting the public from harm. Drug use is seen as a public harm. The State finds itself in a position justifying itself in limiting a person's (drug addicts) right on the grounds that their actions will undermine institutional practices and regulatory systems.
The questions that follow is whether South Africa's drug laws and policies successfully address the drug problem and whether criminalisation is the appropriate solution to the drug problem. Given the extensive literature and research on this contentious issue, I am of the view that decriminalisation could have several potential benefits, such as reducing the burden on the criminal justice system, freeing up resources to focus on treatment and rehabilitation, reducing the stigma associated with drug use, and reducing the harms associated with drug use.
Drug use may be argued to be an addiction issue and not a crime. Criminalisation results in marginalisation and stigmatisation, which sees unsuccessful reintegration of drug addicts into society. Imposing punishment on a substance abuser who is psychologically dependent on a substance will not see any long-term positive impact on an individual's future use. Punishment would have an adverse effect on treatment and rehabilitation. Decriminalisation of drugs is not a silver bullet, but it would mean that drug use and possession would no longer be criminal offences.
However, it does not mean that drug use would be legal or encouraged.
To decriminalise drug addiction or not in South Africa?
Although in its totality, decriminalisation may not be the solution to South Africa’s drug problem, but it could be a partial solution. The solution must be one that sets out to create a social, political, and economic environment in which the individual is able to choose to refrain from substance abuse, as advocated by researchers Ames Dhai and Jillian Gardner.
Criminalising an individual who is dependent on a substance is unlikely to change their drug use behaviour. A purely legal stance may not be the solution or best fit for addressing the problem. We require a multifaceted approach that includes educating the younger generation and, at the same time, providing them with protection against discrimination and stigma.