Paddy Harper, Mail and Guardian
The Phakisa momentum is building as the Presidency has instructed SAPS to review its policy of arresting cannabis growers and dealers as South Africa begins removing the plant from the criminal justice system.
This article first appeared in the Mail and Guardian on 12 July 2023.
The South African Police Service (SAPS) legal department is drafting new standing orders to bring cannabis growers and dealers to court without locking them up as part of an agreement secured at the Operation Phakisa event convened by the presidency last month.
But the police do not appear to have abided by the moratorium on incarcerations for cannabis, set for 30 June 2023, and are continuing to make arrests for dealing in and growing the plant.
SAPS Spokesperson Colonel Athlenda Mathe confirmed that the police were drafting the new standing orders, which will “ensure the least intrusive measures” of securing court attendance of people arrested for dealing or cultivation while a regulatory framework for a recreational cannabis industry was finalised.
“They are actually busy with it, as we speak,” she said.
But arrests for cannabis dealing and growing have continued despite cannabis possession and cultivation for private use being legalised by the constitutional court in 2018 and the granting of licences for medicinal cannabis being granted by the South African Health Products Regulatory Authority (SAHPRA) in 2020.
Parliament is still to pass the Cannabis for Private Purposes BIll, which does not enable commercial cannabis trading, and the presidency called the Phakisa meeting last month to break the bureaucratic deadlock that had developed around the national cannabis master plan being driven by the agriculture department.
Operation Phakisa is an initiative of the South African government launched in 2023 and aimed at fast-tracking the implementation of solutions on critical development issues. Last month’s meeting, which included national and provincial government, the cannabis industry, the Rastafarian community, organised labour and other participants, agreed to “reinforce previous instructions to all SAPS members to respect the privacy rights of cannabis cultivators and users, and to ensure the least intrusive measures are used when securing an accused’s court attendance”.
“Further measures will be taken to ensure that the SAPS treats cultivators, users and dealers of cannabis with respect for their constitutional rights,” a joint statement by the participants said.
But the fact that the agreement for a moratorium on arrests, set for 30 June 2023, has not been implemented by the police has raised concerns in industry circles as to their commitment to abiding by the agreements secured under Phakisa. Agreements regarding regulatory reform include reviewing the schedules of the Medicines Act, which will see the SAHPRA focusing on medicinal cannabis while other departments regulate cannabis grown for industrial purposes.
The Phakisa event agreed to look at how to fast track removing cannabis from the Drugs Act, which will allow non-medicinal cannabis for agriculture or construction purposes under the department of agriculture.
The meeting agreed on a science-based and human rights approach to legalising the supply of adult-use cannabis to consumers, and to the inclusion of traditional cannabis farmers to eventually create a regulated adult-use market.
This process would ultimately inform the government’s approach to “encouraging the successful migration of existing participants from the illicit to the licit cannabis economy”, the meeting said.
Further agreements were reached on a regulatory reform process to enable better investment in the cannabis sector and a programme of interventions aimed at scaling up existing catalytic projects and enabling private sector investment with public sector financing support.
Agreements were also secured for work between government departments at various levels, and to support initiatives by provincial departments that are already underway. In KwaZulu-Natal, the agriculture department has begun building a database of cannabis farmers, and has set a 31 July 2023 deadline for applications for hemp and cannabis licences and support from its nascent cannabis programme. Participants in the Phakisa meeting expressed hope that they had made a major breakthrough in getting the green economy President Cyril Ramaphosa has been talking about in successive State of the Nation addresses off the ground.
Cosatu representative Tony Ehrenreich said the trade union federation welcomed the progress made, which would speed up the industrialisation of the industry and would ultimately create jobs and decent work. Government had thus far been “absurd” in its approach to cannabis.
“It should be an industry functioning in all areas of growth. It can create industries and jobs, grow the economy and earn foreign exchange and is less damaging than tobacco and alcohol to health and society,’ he said. “People should be allowed to just proceed to grow cannabis and use it in whichever safe way they want to.”
Business representative Ayanda Bam said the social partners had created a platform for collaboration and coordination that had long been missing from the hemp and cannabis sector. “It is evidence that when commitments are backed by action, it is possible to progress. What we need now is accountability to ensure that that progress translates to tangible outcomes,” Bam said.
Cannabis activist Ras Gareth Prince said they would hold the government to account to ensure that the agreements were implemented. “We remain committed to restoring the dignity and economic culture of our community and the rest of society in a renewable and reliable manner. We trust that the government will work with us more progressively and we will hold them to the resolutions of the Phakisa,” Prince said.
It is not clear at this stage whether the Phakisa developments will stave off a return to the constitutional court by Myrtle Clarke, director of NGO Field of Green For All, and other participants in the 2018 case, which secured the right for private and personal use, possession and cultivation of cannabis.
Clarke and other activists had been frustrated by the continued arrests by the police and other agencies and the slow progress in drafting legislation, which was meant to have been concluded by 2020.