Our cannabis needle has shifted

Since the Constitutional Court prompt to parliament in 2018, the pace of cannabis reform in South Africa has been frustratingly slow, but that is not to say that there has been no progress. 

One should remember that the Court did not direct parliament to create a cannabis industry — instead only to regulate the rights of personal and private cannabis cultivators and users. Some have convincingly argued that this necessarily infers a cannabis industry (because most users will require a clean source of cannabis outside of having to grow their own) but nonetheless, the 2018 judgment says what it says and does not say anything else. 

So, where one observes that government appears to be shifting its policy towards the creation of a cannabis industry (which must provide head start to those most impacted by decades of criminal prohibition) any kudos should be directed to certain of those pulling the strings within government, as also to those key players from civil society and business whose consistent pressure and submissions have steadily contributed to changing government minds. 

Where are we now and where are we headed? The Cannabis for Private Purposes bill ought imminently to be signed into law by President Ramaphosa, despite some objections to it that I will address below. 

Notably, this new law will: (1) remove any and all references to “cannabis” from the Drugs and Drugs Trafficking Act, thereby clearing the path for a new cannabis regime; (2) through an intentionally narrow definition of cannabis (which excludes the non-psychoactive parts of a cannabis plant) create an overnight (legal and lucrative) “hemp” industry, in what will be a world-first; (3) insofar as section 1(2) says that you’ll not be a criminal if you possess a permit or a licence, lay the foundation for the iterative and considered unlocking of a cannabis industry; and (4) via its regulations, set upper limits for how much cannabis one may personally cultivate, possess and transport.  

Many have objected to the latest (final) wording of the bill and have petitioned the president to avoid signing it into law. They are unhappy, among many other things, with that: (1) its regulations will set those annoying upper limits on personal cultivation, possession and transportation; (2) it generally treats illegal cannabis dealers more harshly than those who break the laws related to alcohol and tobacco trade; and (3) it does not on its own two feet create a legal regime for the trade in cannabis, instead relying on time-consuming amendments to other Acts and regulations. 

These are all legitimate gripes, but some of them might fade when pulled from the vacuum created by the government not telling us where its head is at. We’re left to infer certain things today, and to participate in a fair amount of speculation. Some things might later prove to be incorrect.

On the issue of upper limits, I used to object to them on the basis of presuming that they represented the government arbitrarily and paternalistically telling its citizens how much cannabis is too much for them, which it generally does not do with alcohol and tobacco. 

I now understand that it is, instead, a matter of policing. 

The state is legitimate in criminalising the illegal (that is, unregulated) trade in cannabis. 

To use an extreme example, it can hardly be appropriate and would be absurd that someone found with a warehouse containing 3  000 hydroponically grown cannabis plants, without a licence, could dodge arrest and prosecution by alleging that he was growing a multiple lifetime’s supply of cannabis for his own, personal and private, consumption. 

Clearly the state must draw a line somewhere. Hence, we require upper limits, although what those limits will be, and whether there will be wiggle room in the regulations for those who say that they require more cannabis, remains up for debate. 

I do still believe that cannabis users and illegal dealers should be treated no more harshly than tobacco and alcohol users and illegal dealers, so I make no defensive comment on the criminal penalties in the bill, other than the following. The government, which at times has been the victim of its own propaganda, is still emerging from an approximate century of the criminal prohibition of cannabis. 

It appears now to be progressing cautiously, on the basis of non-regression (that is, in recognition that freed genies are very hard to shove back into their bottles). 

It may be so that our future (amended) legal regime sees lighter criminal penalties, once the government is satisfied that it would be doing the right thing. Time will tell.

On the issue of trade and the permits/licences foreshadowed by the bill’s section 1(2) — contrasted with the criticism that the government ought to have created a free-standing permitting/licensing regime within the bill — I will say the following. It appears that the bill, which was already far along in the parliamentary processes, is being leveraged as a “good enough” and possibly impermanent enabler for what is intended to follow. 

Those whose criticism is that it falls short of “perfect” would also later have contradicted themselves when they criticised the government because it had stalled the enactment of the bill by years to achieve the demanded perfection. 

Here, we should remain ever mindful that the executive cannot act lawfully (for example, by issuing licences and permits) without a basis founded in statute. To ignore this fact is to invite a constitutional crisis and a very slippery slope. 

The myriad legitimate uses of cannabis might be exceptional, but are not so much so as to justify the breaking of our legal system to accommodate them and the setting of an unacceptable precedent. Thus, while considered regulatory reform presents as too slow for many of us, it is an entirely necessary process.

I would be dishonest if I wrote that the bill is perfect. It isn’t. But I do think that it should be enacted without further delays, given the reformative snowball that it will set into motion. Its detractors are free in our constitutional democracy to say and do what they think that they must, in order to serve themselves and their constituencies, but I do respectfully invite and encourage them to seriously reflect on what meaningful gains (both for themselves and others) they are willing to block for purposes of (only much later) getting 100% of what they want. 

We’re now pointed in roughly the right direction. 

Let’s march on and make further course adjustments with some overdue momentum behind us.

Paul-Michael Keichel is an attorney with environmental law firm Cullinan & Associates where he focuses on the legal aspects of cannabis, psilocybin and related natural medicines.