The Constitution of South Africa dies every time someone is arrested and prosecuted for dagga.
Many South Africans, who value the prohibitionist approach to drugs, might be bewildered by such a statement but the reality is that the Constitution of South Africa fails to protect several rights that are violated by the Drug & Trafficking Act No. 140 of 1992 and by those upholding old laws that stem from segregation and racism.
Dagga laws are justified in accordance to the limitation of rights contained in the Bill of Rights in Chapter 2 of the South African Constitution.
“The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.
Limitation of rights
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
A. the nature of the right;
B. the importance of the purpose of the limitation;
C. the nature and extent of the limitation;
D. the relation between the limitation and its purpose;
E. and less restrictive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. “
Let us review dagga law using the guidelines for the limitation of rights as contained in the Bill of Rights.
The opening statement makes it very clear that any limitation of rights must be based on human dignity, equality, freedom, must be justifiable in an open democratic society and all relevant information must be considered as well as the following:
A. the nature of the right; The Drug & Trafficking Act No. 140 of 1992 and the enforcement of the act limits most rights on the bill of rights by criminalising the possession of dagga. From human dignity to privacy and everything in between. Most importantly the right to privacy and freedom. State experts argue that the main goal of dagga law is to protect South Africa citizens from the potential harms from dagga.
B. the importance of the purpose of the limitation; How important is it to limit society’s exposure to dagga. How important is it to uphold unjust dagga laws and for what purpose?
The state may argue that, in relation to dagga, the limitation of rights are justified to protect society from the potential harms and abuse of dagga.
In light of this methodology: Why is alcohol and sugar legal? Even James Wilmot from the Democratic Alliance recently stated in an interview on SABC Newsroom with Eben Jansen that dagga is not nearly as harmful as they previously thought.
Conclusion – It is very easy to justify the purpose of the limitation of rights, in relation to dagga, if you disregard scientific fact in favour of propaganda.
C. the nature and extent of the limitation; The limitation is far reaching and the impact to society is debilitating, by criminalising the possession of dagga and severely punishing otherwise law-abiding citizens.
D. the relation between the limitation and its purpose; The goal sought by the limitation of rights, in regards to dagga, is to protect children and society from dagga.
However under the enforcement of the Drug & Trafficking Act dagga is unregulated and is sold in schools.
E. and less restrictive means to achieve the purpose. First of all you need to understand that the limitation of rights, giving power to the Drug & Trafficking Act, does not achieve the purpose that was intended with the Act’s enactment.
Contrary to what you might expect and depending on the perspective the issue of “dagga rights” are viewed from one can determine that the answer is not less restriction but rather more regulation to control dagga in a similar manner as alcohol.
Win-win; Regulation would give freedom and dagga rights to daggafarians while also offering more protection to minors in regard to early exposure to dagga as is the case with it being a common item in schools.
SA Human Rights Commission’s final comment on dagga rights
Recently the South African Human Rights Commission has closed a case lodged on behalf of all cannabis using citizens in South Africa.
The complaint sought the immediate protection from prosecution under unjust dagga laws for all daggafarians.
Although the Commision agreed with many aspects contained in the complaint, the Commission simply stated that they can do nothing because:
“The Commission does not have the power to invalidate a law”
This is alarming. Think about it for a moment.
What if the Immorality Act No. 5 of 1927 was still in effect today?
Would the limitation of rights and the fact that the act is law justify the enforcement and rights violations of this unjust law?
There is no difference between the injustice of a law that criminalises people for having an interracial relationship and a law that criminalises people for making a safer choice by choosing dagga.