News24.com | OPINION | Keep off the grass: Less is more in cannabis regulation

News24.com | OPINION | Keep off the grass: Less is more in cannabis regulation

How far ought government to go in regulating cannabis and, correspondingly, how much regulation is too much? asks Paul-Michael Keichel.

We’ve all heard the old caution against using sledgehammers
to crack nuts.

Turns out, it features in our Constitution. It also finds
application in the ongoing debate around how to constitutionally regulate cannabis
in South Africa.

Where are we now with cannabis reform, post the recent State
of the Nation Address? Various civil society organisations, business interests,
and individuals are, as part of a coordinated private sector working group,
engaging with an interdepartmental government working group and the Office of
the Presidency.

Our goal is to fast-track the unlocking of our cannabis industry, necessarily and primarily in the best interests of the traditionally poor, rural, targeted and marginalised members of our cannabis community.

How far ought government to go in regulating cannabis and,
correspondingly, how much regulation is too much?

Section 1 of the Constitution reads:

“The Republic of South Africa is one sovereign,
democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms …”
.

Section 36 reads:

“(1) 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;
and

(e) less restrictive means to achieve the purpose …”

These must be considered together. Without addressing the
Court jurisprudence that has given these and other sections rich meaning, it is
immediately apparent that government lawmakers must prefer advancing human
rights and freedoms over limiting them.

It is equally clear that, when they do propose to limit
them, they must satisfy themselves and society of that: (1) the importance and
purpose of the limitation outweighs the nature and importance of the right; (2)
the nature and extent of the limitation is appropriate in the circumstances;
(3) the limitation would serve its intended, legitimate purpose; and (4)
mindful of the rest, that there are no less restrictive means available to
achieve the purpose.

In this case, the purpose of proposing to limit a number of
very important constitutional rights would be to ‘prevent harm’ to users
of cannabis and society.

Certain harms do indeed exist, but have been massively
overstated. Accordingly, how important can we say that it genuinely is to limit
those harms, especially mindful of maintaining consistency with how we treat
more harmful things like – and users of – tobacco and alcohol?

None of this is to say that we ought to do nothing about
preventing established cannabis harms, but it does speak to the need to be
circumspect in our interventions.

Certainly, we must balance harm-reduction motivations with
the severe and established harms of being exposed to the criminal justice
system. In doing so, we will make sure that we are over-all reducing harm and
not, inadvertently, increasing it, because that would mean that the limitation
unconstitutionally achieved the opposite of its intended purpose.

Vitally, government has known about a less-restrictive and
yet more-effective means of reducing drug harms for quite some time: that is,
to treat the established harms of drugs as a medical and social – instead of a
criminal justice – concern, and to stop sending sick and desperate people to
prison.

Let’s instead provide them with the empathetic care that
enables them to break-free of their problems. In short, government’s mandate,
specifically and generally, is to go absolutely no further in regulating
cannabis – and other human activities – than is absolutely necessary to prevent
established harms.

If it goes any further than that, then it oversteps. Minimum legislative interventions and low barriers to entry are therefore the order of the day.

I suspect that government – to the degree that it has a
coherent position on drugs/cannabis – knows this all. It seems to be moving in
the right direction, albeit slowly. However, there are times where it appears
that certain lingering elements within government are, for their own reasons,
as yet to be revealed, still clinging onto the status quo, or attempting
to claw-back on outdated ‘War on Drugs’ restrictions already done away
with by the Constitutional Court.

If I am correct, then these elements cannot be permitted to
prevail, given that our current trajectory will both ensure the section 1
advancement of equality, human rights and freedoms and will necessarily survive
section 36 scrutiny.

Time will tell how this all plays out, but I do hope that,
in the not too distant future, we will look back on this all and breathe a sigh
of relief that government, appropriately, diverted its sledgehammer away from
the cannabis nut.          

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. Views are his own.

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