tag:theconversation.com,2011:/us/topics/dagga-41154/articlesDagga – The Conversation2023-02-05T08:02:19Ztag:theconversation.com,2011:article/1980112023-02-05T08:02:19Z2023-02-05T08:02:19ZWeed in South Africa: apartheid waged a war on drugs that still has unequal effects today<figure><img src="https://images.theconversation.com/files/505591/original/file-20230120-26-2j6065.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's governing ANC has continued the anti-cannabis repression inherited from apartheid.
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Cannabis is being commercialised into a multibillion-dollar global industry and South Africa wants a piece of the pie. In his <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-2022-state-nation-address-10-feb-2022-0000">2022 state of the nation address</a>, President Cyril Ramaphosa spoke of developing a hemp and cannabis sector to boost the post-COVID economy.</p>
<p>Poor rural communities in South Africa have <a href="https://www.bbc.com/news/world-africa-62524501">long cultivated cannabis</a> in illegal conditions of risk. They now face losing out to corporate interests and the wealthy.</p>
<p>How did the stakes become so high – and so unequal?</p>
<p>My <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">recent historical study</a> helps answer this question. It reveals how an apartheid-era drug law incited a “war on drugs” that was in effect a “war on cannabis”.</p>
<p>In 1971 a law was passed that subjected the cannabis plant and its products to the strictest possible controls. This set in motion a structurally racist policy that continued well into the post-apartheid era. </p>
<h2>Apartheid’s 1971 anti-drug law</h2>
<p>In 1971, South Africa’s apartheid government passed the <a href="https://www.lac.org.na/laws/annoSTAT/Abuse%20of%20Dependence-Producing%20Substances%20and%20Rehabilitation%20Centres%20Act%2041%20of%201971.pdf">Abuse of Dependence-Producing Substances and Rehabilitation Centres Act</a>. Lawmakers boasted it was the</p>
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<p>toughest anti-drug law in the Western World. </p>
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<p>The law’s main target was white “hippy” youth. </p>
<p>The law followed recommendations by a state-sponsored inquiry, the <a href="https://libguides.lib.uct.ac.za/c.php?g=182363&p=1581392">Grobler Commission</a>. The commission focused only on white South Africans’ misuse of synthetic and pharmaceutical drugs such as LSD, Mandrax (methaqualone) and heroin. </p>
<p>Though the commission did not in fact turn up evidence of an extensive drug abuse problem, it nevertheless recommended tough suppression.</p>
<p>To the ruling <a href="https://www.sahistory.org.za/article/national-party-np">National Party</a>, the use of drugs by white people appeared to threaten Afrikaner religious culture and the future of a white South Africa. They hyped the drug problem as</p>
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<p>a form of terrorism that is more dangerous than the armed terrorism we are familiar with on our country’s borders. </p>
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<p>This language of crisis enabled the apartheid lawmakers to borrow from the country’s draconian anti-terrorism laws, such as the <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv01538/04lv01828/05lv01829/06lv01927.htm">1967 Terrorism Act</a>, used to put down anti-apartheid activism.</p>
<p>Like the anti-terrorism legislation, the 1971 anti-drug act provided for harsh minimum prison sentences and detention without trial for purposes of interrogation. It also removed the court’s discretion in sentencing for drug offences.</p>
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Read more:
<a href="https://theconversation.com/cannabis-policy-changes-in-africa-are-welcome-but-small-producers-are-the-losers-179681">Cannabis policy changes in Africa are welcome. But small producers are the losers</a>
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<p>When it was debated in parliament, the principle of “toughness” appealed across party lines – except for the lone voice of the Progressive Party MP <a href="https://www.sahistory.org.za/people/helen-suzman">Helen Suzman</a>. Suzman observed that although the Grobler Commission excluded research on substance use by the majority black South Africans, the law would nonetheless apply to them. </p>
<p>Similarly, she argued, the commission had not investigated cannabis – a substance considered by many to be less socially harmful than legal alcohol or tobacco. Yet it was to be scheduled in the new law as a “prohibited dangerous drug”, along with heroin and cocaine. </p>
<h2>Lone voice of reason</h2>
<p>For <a href="https://www.dukeupress.edu/the-african-roots-of-marijuana">centuries in Africa</a>, including parts of South Africa, the cannabis plant had important indigenous cultural value and was cultivated for a variety of social and pharmacological uses. </p>
<p>Cannabis was first <a href="https://www.tandfonline.com/doi/abs/10.1080/02582473.2022.2128274">criminalised in the country in 1922</a>. But drug <a href="https://theconversation.com/what-history-teaches-us-about-shaping-south-africas-new-cannabis-laws-150889">policing remained relatively weak</a> for three decades. In the gap, and with growing urban markets, commercial cannabis livelihoods emerged to combat <a href="https://www.jstor.org/stable/24566750#metadata_info_tab_contents">growing rural poverty</a>. </p>
<p>In such conditions – as Suzman pointed out – punitive drug control, created to combat white pill-popping, was clearly going to fall on black South Africans for cannabis offences. </p>
<p><a href="https://www.journals.uchicago.edu/doi/10.1086/721253">Suzman fought hard</a>. She pointed out that a <a href="https://en.wikipedia.org/wiki/Shafer_Commission">“Marijuana Commission”</a> was under way in the US, documenting how the supposed dangers of cannabis were greatly exaggerated. She argued for a less criminalising status for cannabis in South Africa.</p>
<p>Her views were defeated and apartheid’s extraordinary drug legislation was easily passed. Cannabis was classified among those substances marked for strictest suppression.</p>
<h2>The law’s impacts</h2>
<p>This decision proved to be a watershed. The <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">effects of the 1971 anti-drug law</a> were immediately evident, falling disproportionately on black South Africans. Cannabis accounted for well over 95% of drug-related arrests and convictions across all “race” groups. </p>
<p>In a 1972 assessment by the Natal Provincial Supreme Court – in the case <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">State v Shangase and Others</a> - judges showed how prison terms of two to ten years were being imposed even for the petty possession of single cannabis “<em>zol</em>” (joint).</p>
<p>The “rehabilitation centres” part of the 1971 law applied only to white offenders since – <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">as Suzman had pointed out</a> – the segregationist state did not provide drug treatment programmes for black people. But, even for convicted white users, sentences involving treatment applied in less than 1% of cases.</p>
<p>Paradoxically, but unsurprisingly, illegal cannabis cultivation increased within the segregated spaces of apartheid.</p>
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Read more:
<a href="https://theconversation.com/a-new-approach-to-criminalisation-could-end-cape-towns-drug-wars-121769">A new approach to criminalisation could end Cape Town's drug wars</a>
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<p>An illegal crop in high demand was profitable to grow, and even more so to trade. Helicopters spraying herbicides and multiple checkpoints raised the stakes of drug politics for all parties.</p>
<p>The laws’s embedded racism meant that as tough drug suppression continued after apartheid ended, its racist effects also continued.</p>
<h2>A reckoning with history is needed</h2>
<p>The 1971 anti-drug law was replaced in 1992 with a <a href="https://www.gov.za/documents/drugs-and-drug-trafficking-act">Drugs and Drug Trafficking Act</a>. The new law maintained harsh sentences and cannabis remained illegal. The African National Congress, which came into power in 1994, reproduced the heavy-handed tactics it had inherited from the apartheid National Party: militarised suppression, spraying and incarcerations.</p>
<p>In <a href="https://theconversation.com/south-african-court-frees-cannabis-from-colonial-and-apartheid-past-103644">2017 and 2018</a>, the government’s cannabis policy was successfully challenged in the courts, on grounds of cultural and religious freedom. This also opened a window for liberalising cannabis as a commercial venture for certain products. Yet <a href="https://theconversation.com/cannabis-policy-changes-in-africa-are-welcome-but-small-producers-are-the-losers-179681">the actual policy remains unclear and contested</a>.</p>
<p>Apartheid’s 1971 law, and the parallel growth of an illegal economy, shaped South Africa’s unequal cannabis landscape. Now, in an opening cannabis economy, rural cultivators remain in a vulnerable position against more powerful interests. </p>
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<a href="https://theconversation.com/marijuana-use-in-south-africa-what-next-after-landmark-court-ruling-103607">Marijuana use in South Africa: what next after landmark court ruling?</a>
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<p><a href="https://www.journals.uchicago.edu/doi/full/10.1086/721752">Decolonising drug-related knowledge and policies</a> in South Africa requires a deeper reckoning with history, including from apartheid into the present.</p>
<p>*Quotations from the <em>Debates of the House of Assembly</em>, Hansard (Cape Town: Government of the Republic of South Africa, 5 May 1971.</p><img src="https://counter.theconversation.com/content/198011/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thembisa Waetjen receives funding from the National Research Foundation.</span></em></p>A 1971 law, and the parallel growth of an illegal economy, shaped South Africa’s unique cannabis landscape.Thembisa Waetjen, Associate Professor of History, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1508892020-11-30T13:17:58Z2020-11-30T13:17:58ZWhat history teaches us about shaping South Africa’s new cannabis laws<figure><img src="https://images.theconversation.com/files/371735/original/file-20201127-23-1oosep4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A T-shirt worn by a cannabis advocate during a court hearing on the legality of the plant in South Africa.</span> <span class="attribution"><span class="source">RODGER BOSCH/AFP via Getty Images</span></span></figcaption></figure><p>South African <a href="https://www.news24.com/health24/Lifestyle/Street-drugs/Plants/Dagga-20120721">cannabis</a> policy is currently at a crossroads. In 2018, the Constitutional Court <a href="https://theconversation.com/south-african-court-frees-cannabis-from-colonial-and-apartheid-past-103644">effectively decriminalised</a> private cannabis use. Since then, the government has continued to grapple with how to regulate this plant and its products, locally called ‘<a href="https://www.etymonline.com/word/dagga">dagga</a>’. </p>
<p>A cannabis <a href="https://www.justice.gov.za/legislation/bills/2020-CannabisBill.pdf">bill</a> to clarify legal reforms was recently presented in parliament. Yet, medical and civil rights groups who advocate rights-based approaches <a href="https://www.medicalbrief.co.za/archives/sa-drug-policy-initiative-proposed-cannabis-bill-does-not-reflect-the-spirit-of-2018-concourt-ruling/">remain wary</a> of the ongoing potential for discrimination. They argue it will benefit the affluent and <a href="https://www.groundup.org.za/article/rastas-march-against-new-cannabis-bill/">impact negatively</a> on vulnerable communities, who may not have space at home to cultivate the crop and will be criminally penalised for smoking cannabis outside the home.</p>
<p>With a cannabis industry estimated at <a href="https://www.globenewswire.com/news-release/2019/04/18/1806583/0/en/New-Study-Estimates-the-Global-Cannabis-Market-at-Over-340-Billion-USD.html">over $300-billion</a> worldwide, much is at stake. Already, South African boutique producers are navigating <a href="https://iono.fm/e/916260">legal loopholes</a> to deliver cannabis products to young, urban middle-class consumers. Some government officials see dagga as a ticket to <a href="https://www.timeslive.co.za/politics/2020-02-25-medicinal-and-skincare-benefits-of-cannabis-in-david-makhuras-sights/">economic growth</a>. This is through agriculture and medicinal products that can be marketed for pain alleviation, sleep and skin care. </p>
<p>But, would further liberalisation invite <a href="https://journals.openedition.org/poldev/">“corporate capture”</a> as some development practitioners fear?
If so, what will happen to people in rural communities who, for decades, have eked out risky livelihoods by illegally cultivating dagga? History provides crucial insights into the questions of social justice at stake in current policy debates. </p>
<p>Our <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0018-229X2020000100005&lng=en&nrm=iso&tlng=en">recent study</a> using police statistics from the mid 1900s uncovers trends in cannabis arrests and seizures, by geographical area. It shows the South Africa apartheid state to have been a pioneer in supply-side drug control strategies, targeting rural cannabis farmers in the most impoverished parts of the country. </p>
<p>Listening to the lessons of history means protecting and promoting the interests of those people who nonetheless developed a thriving national cannabis economy through indigenous knowledge, entrepreneurship and toil.</p>
<h2>What police records reveal</h2>
<p>From early in the 20th century, state approaches to dagga control were deeply entangled in racist colonial and <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid</a> policies. These maintained spatial divisions based on race and ethnic classifications. But segregation created conditions that allowed illicit commercial cannabis farming and trade to develop and thrive. </p>
<p>“Tribal” reserve areas were long the protected or undetected spaces for dagga production. These “homelands” were mostly rural territories that were put aside for majority black South Africans to live in under various chieftainships. </p>
<p>Officials informally tolerated dagga in “tribal” areas, even after its prohibition in 1922. For over two decades, policing was overwhelmingly focused on keeping cannabis and cannabis smoking out of the white-managed towns and cities. </p>
<p>This changed under a new political regime. In 1948, the National Party was <a href="https://www.sahistory.org.za/archive/chapter-1-victory-nationalist-party-1948">elected</a> by white voters. Even before it passed its first apartheid law, the new cabinet commissioned a formal, nation-wide investigation into “dagga abuse”.</p>
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Read more:
<a href="https://theconversation.com/cannabis-in-south-africa-the-duplicity-of-colonial-authorities-129915">Cannabis in South Africa: the duplicity of colonial authorities</a>
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<p>There had been calls for such an investigation since the 1930s, when more people of colour moved into the cities. Liberal activists and welfare officials considered dagga smoking a barrier to progressive reforms, urban security and class respectability. In the late 1940s, even before the National Party victory, government was increasing police capacity. </p>
<p>Under <a href="https://www.sahistory.org.za/archive/book-4-industrialisation-rural-change-and-nationalism-chapter-3-afrikaner-nationalism-1930s">Afrikaner nationalism</a>, however, a push for order – both moral and political – was supercharged. Authoritarian tactics backed an agenda pinned on Calvinist principles, modernist ambitions and a white supremacist vision. The political will and means to stamp out dagga increased.</p>
<p>In 1952, the Interdepartmental Committee on the Abuse of Dagga published its <a href="https://fieldsofgreenforall.org.za/report-of-the-interdepartmental-committee-on-the-abuse-of-dagga-1951/">report</a>. It recommended curtailing cannabis trade and consumption. Most consequentially, it advocated for a focus on the sources of cannabis supply for the urban market.</p>
<p>Squads of police were now routinely deployed to destroy cannabis crops. Much of this was grown within or around impoverished “tribal” territories, by poor families and especially women.</p>
<p>Two decades before US President Richard Nixon popularised the phrase “<a href="http://www.guardian.co.uk/theguardian/from-the-archive-blog/2011/jul/22/drugs-trade-richard-nixon">war on drugs</a>”, South Africa had adopted a systematic supply-side approach to cannabis law enforcement, targeting growers.</p>
<h2>A drug war</h2>
<p>Numbers of arrests and amounts of cannabis seized by police rose dramatically from the mid-century. The vast majority of arrests continued to be for charges of possession. But police raids in rural locations accounted for enormous quantities of dagga being confiscated in the decades that followed. </p>
<p>In addition to the numerical evidence, other historical documents indicate further extreme consequences of the target on cannabis production. In 1956, a police raid near Bergville, in the eastern part of the country, revealed the growing violence in these encounters between the police and communities defending their precarious livelihoods. Five policemen were brutally killed by community members. In retaliation, 22 people were convicted and hanged by the state.</p>
<p>The relative scale of the cannabis economy in South Africa is a notable element in this story. In 1953, <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0018-229X2020000100005&lng=en&nrm=iso&tlng=en">United Nations records</a> comparing six years of cannabis seizures for 46 countries showed South Africa accounted for a mind-blowing 50% to 76% of the world’s reported total.</p>
<h2>What this teaches us</h2>
<p>The take-away here is twofold. It’s not just a story of victimisation but also of resilience. On the one hand, the notorious nature of colonial and apartheid policing was a visible demonstration of white minority state power. Yet, at the same time, the statistics show both the endurance of indigenous dagga practices as well as the steady growth of a national cannabis agribusiness. This was developed through the entrepreneurship of marginalised people in socially oppressive and criminalised conditions.</p>
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<a href="https://theconversation.com/south-african-court-frees-cannabis-from-colonial-and-apartheid-past-103644">South African court frees cannabis from colonial and apartheid past</a>
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<p>Policymakers need to listen to the voices of people <a href="https://www.soas.ac.uk/news/newsitem148724.html">most affected</a> by state drug control. This means also looking for voices silenced by history. </p>
<p>In the South African story of cannabis, the mid-century shift in policing strategy is a <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0018-229X2020000100005&lng=en&nrm=iso&tlng=en">critical</a> episode.</p>
<p>Additionally, it reveals South Africa as a precocious case in the broader and global ‘war on drugs’ chronology. Together with other research, a historical picture adds to a <a href="https://www.hrw.org/blog-feed/rethinking-war-drugs">growing body</a> of international evidence that shows state drug wars as an ineffectual and socially devastating response to the realities of substance use.</p><img src="https://counter.theconversation.com/content/150889/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thembisa Waetjen has received NRF funding as a rated researcher.</span></em></p>Policy makers need to protect and promote the interests of people whose indigenous knowledge and toil developed a thriving national cannabis economy - in the face of harsh police crackdowns.Thembisa Waetjen, Associate Professor of History, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1036442018-09-23T09:27:28Z2018-09-23T09:27:28ZSouth African court frees cannabis from colonial and apartheid past<figure><img src="https://images.theconversation.com/files/237497/original/file-20180921-62950-15vumpc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Celebrations after court rules that the personal use of dagga is not a criminal offence.</span> <span class="attribution"><span class="source">Kim Ludbrook/EPA</span></span></figcaption></figure><p>A <a href="https://theconversation.com/south-africas-top-court-legalises-the-private-use-of-marijuana-why-its-a-good-thing-103537">ruling</a> by the South African Constitutional Court opens the way for decriminalising private use of cannabis, locally known as “dagga”. It marks a definitive shift in a century of notoriously punitive drug policy, recognised in the recent judgement <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/34547/Full%20judgment%20Official%20version%2018%20September%202018.pdf?sequence=47&isAllowed=y">to be “replete with racism”</a>. </p>
<p>In 1922, cannabis was <a href="https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Cannabis_in_South_Africa.html">officially classified</a> and designated for control as a “habit-forming drug” through a national Customs and Excise Act. Consequences of this legal development were not only local: they were global. </p>
<p>A year after the national law was passed, the government under Prime Minister Jan Smuts, approached the League of Nations’ “Dangerous Drugs” committees requesting that cannabis be included within the same registers as opium, morphine and cocaine. Two years later cannabis was placed within international drug protocols.</p>
<p>This begs the question of why and how cannabis came to hold such political significance for colonial rulers in South Africa. What was behind the 1922 law? And how did that history shape subsequent cannabis politics?</p>
<p>Cannabis has a deep <a href="https://www.dukeupress.edu/the-african-roots-of-marijuana?viewby=author&lastname=Duvall&firstname=Chris&middlename=S.&displayName=$displayName&sort=author&aID=3908848">precolonial past</a> in southeastern Africa. It didn’t, however, feature in the intoxicant repertoires of Anglophone settlers. After British victory in the <a href="https://www.sahistory.org.za/topic/south-african-war-1899-1902">South African War</a> (1899-1902) against the Boer republics dagga came under imperialist scrutiny. Colonial officials registered ongoing confusion about the uses, effects, and cultural meanings of cannabis. They often conflated it with the indigenous species <a href="http://pza.sanbi.org/leonotis-leonurus"><em>leonotus</em></a>, also known as lion’s tail and wild dagga. The leaf is widely used for medicinal purposes. </p>
<h2>No colonial consensus on the cannabis question</h2>
<p>When the country was politically unified from four colonies into the Union of South Africa in 1910, there were, in fact, widely diverging official views about dagga lawmaking. </p>
<p>In the Cape, dagga was grown commercially. Its bulk sale was advertised in the <em>Cape Times</em> newspaper until around 1898. Although brought into the pharmacy law’s “poison” schedules in 1905, it’s regulation through medical professionals was contested by politicians representing dagga-growing constituencies. Pharmacists were accused of setting dramatically reduced wholesale prices and profiting from their monopoly. For some, it became a roaring, “non-medicinal” trade. </p>
<p>After unification, Cape physicians, police, government officials and wine farmers cooperated to lobby for more stringent controls. They claimed it was a substance that diminished the work ethic of agricultural labourers, increased crime, and encouraged sex across the colour line. </p>
<p>In the Natal colony, early in the century, white settlers in towns along with African Christians and political activists, such as African National Congress’s first president, <a href="http://www.sahistory.org.za/people/john-langalibalele-dube">John Langalibalele Dube</a>, called for dagga prohibition on similar grounds. Yet the Native Affairs Department stood firmly against this idea deep into the 1920s. It viewed the smoking of dagga as a cultural practice that should be regulated informally, through customary structures of patriarchy. </p>
<p>The department argued that dagga was used by respectable Zulu-speaking men “who should not be made criminals by a stroke of the pen”. And it warned it would be impossible to enforce and would likely produce rebellious sentiments. </p>
<p>Meanwhile, some traditional leaders proposed a law that would prohibit youth and women from smoking dagga, but would allow the practice among senior men.</p>
<p>In the Transvaal province during this period, the official concern about intoxicants was related to labourers in the gold mining sector. In contrast to Cape fruit growers, Witwatersrand mine inspectors surveyed in 1908 and 1911 firmly advocated tolerance for dagga-smoking in worker compounds.</p>
<p>There, new meanings and values around dagga smoking were being shaped by a dangerous and alienating work environment. Cannabis was seen as a source both of sociability and relief from anxiety and pain. For young migrant workers, smoking dagga was a cultural symbol of personal freedom and mature manhood.</p>
<h2>Dagga tacked on to opium laws</h2>
<p>Meanwhile, from 1912, international governments began to negotiate on <a href="https://www.unodc.org/unodc/en/frontpage/the-1912-hague-international-opium-convention.html">protocols for the control of the trade in opium</a>, the controversial financial base of the British Indian colony. South Africa’s government came under ongoing pressure from London to conform to international agreements by passing a national anti-opium law. </p>
<p>In 1916, the Union government drafted the “Opium and other Habit-Forming Drugs Regulation” bill. It now used the leverage provided by international opium agreements to overrule dissenting voices on cannabis. The government also included both <em>leonotus</em> and <em>cannabis</em> species as “drugs” to be controlled, with punishments of £100 fines and six months of prison. </p>
<p>While provincial governments had sought dagga controls through Noxious Weed legislation and upscheduling in existing pharmacy law, dagga was now to be declared a “habit forming drug” under national authority. </p>
<p>As other scholars have observed, racist public panics around dagga in the early 1920s helped to push prohibition through parliament in 1922. Yet these had been ongoing from earlier in the century. For a variety of reasons, it suited the Smuts government to respond that year. Not least of these was the opportunity to represent government <a href="http://journals.sagepub.com/doi/abs/10.1177/0022009407084557?journalCode=jcha">as responding</a> to the race populism of its white electorate. This followed Smuts’s heavy-handed assault against striking white workers earlier that year, violence that killed 200 people.</p>
<p>Contestations within the white colonial government are important to note, because they proved consequential in the social and political effects of cannabis suppression into the 20th century. Those against the new law were offered an informal “compromise”. Native Affairs Department administrators were assured that, although the new law empowered authorities to police urban workplaces and “white” residential zones, it would “avoid drastic or ill-advised” control in “remote localities” – essentially the areas governed by traditional authorities. </p>
<p>The law, in other words, rested on segregation, a division of racial geography. As the century progressed, the effect of the laws’ unevenness shaped the illicit cannabis economies that developed in the wake of prohibition. </p>
<p>Communal (“tribal”) land became important for cultivating dagga. Through collusion with some police and white landowners, it was smuggled into urban and industrial spaces. Over time, many livelihoods came to depend on dagga cultivation and trade, <a href="https://www.groundup.org.za/article/cash-crops-poisoned-pondoland/">precarious though these were</a>. </p>
<p>More stringent policing and extensive raids began in the late 1950s. The law’s reach had dire consequences – overwhelmingly for black South Africans. It compounded other aspects of apartheid’s carceral politics.</p>
<p>The Constitutional Court’s ruling offers possibilities for reducing harms that have accompanied decades of punitive law enforcement. It follows trends of decriminalisation world wide and introduces issues of dignity and rights into an ongoing debate.</p><img src="https://counter.theconversation.com/content/103644/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thembisa Waetjen receives funding from National Research Foundation (NRF).</span></em></p>Court ruling may well undo decades of often racist cannabis law enforcement.Thembisa Waetjen, Associate Professor of Historical Studies, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1036072018-09-20T14:38:02Z2018-09-20T14:38:02ZMarijuana use in South Africa: what next after landmark court ruling?<figure><img src="https://images.theconversation.com/files/237291/original/file-20180920-129859-1c1wgoc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rastafarians celebrate after the South African Constitutional Court ruled that the personal use of marijuana is now legal.</span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>South Africa’s Constitutional Court has delivered a unanimous <a href="http://www.saflii.org/za/cases/ZACC/2018/30.html">judgment</a> that certain parts of the country’s drug laws are inconsistent with the right to privacy. Adults are now allowed to use, possess or cultivate cannabis in private for their own personal consumption.</p>
<p>The court gave some <a href="https://theconversation.com/south-africas-top-court-legalises-the-private-use-of-marijuana-why-its-a-good-thing-103537">broad guidelines</a> about what this would mean in practice. But it has left the details to Parliament. </p>
<p>This is an important <a href="https://theconversation.com/why-the-south-african-state-needs-to-lose-its-fight-against-marijuana-policy-reform-81491">victory</a> for human rights and common sense. It also matters to the almost 300 000 people who are <a href="https://www.saps.gov.za/about/stratframework/annual_report/2016_2017/part_b2.pdf#page=36">arrested for</a> drug-related crimes each year, mostly for <a href="https://theconversation.com/why-the-south-african-state-needs-to-lose-its-fight-against-marijuana-policy-reform-81491">possession</a> of small amounts of cannabis.</p>
<p>But there is much more work to be done to design a humane and rational system to regulate cannabis. Some of the key issues that will need to be addressed include how far privacy extends, exactly what products should be regulated, how non-users will be protected, and what to do about the existing criminal market. </p>
<h2>The measure of privacy</h2>
<p>Significantly, this change came after a legal challenge in support of the right to privacy. It did not result from a popular vote or from a shift in government policy, based on public health principles. This means the new regulatory system will need to look quite different to two of the existing models in the world.</p>
<p>The first is the <a href="https://www.forbes.com/sites/andrewdepietro/2018/05/04/how-much-money-states-make-cannabis-sales/#5c3a58b0f181">commercialised</a> system developing in parts of the US, where businesses sell cannabis in much the same way as alcohol. The other is the <a href="https://www.theguardian.com/world/2017/jul/19/uruguay-marijuana-sale-pharmacies">medicalised</a> model of Uruguay, where cannabis can be bought without prescription at pharmacies. </p>
<p>Other countries can offer more appropriate comparisons. Jamaica has set its <a href="https://www.theguardian.com/world/2015/feb/25/jamaica-decriminalises-marijuana">limits</a> at possession of 2oz (56.6g) and the cultivation of up to five plants on any premises. Colombia’s <a href="https://colombiareports.com/colombia-decriminalizes-marijuana-cultivation-up-to-20-plants/">limits</a> are 20g or up to 20 plants. Spain’s limits are rather <a href="http://journals.sagepub.com/doi/pdf/10.1177/002204260403400308">less clear</a>, and must take into account the circumstances of the case, but plants should not be visible from the street. </p>
<p>An important question is whether South Africa will allow <a href="https://www.sciencedirect.com/science/article/pii/S0955395917300014">cannabis social clubs</a> – structures for the non-profit production and distribution of cannabis among a closed group of adults. This is the “Spanish model”, which is currently in a <a href="https://merryjane.com/culture/spains-cannabis-social-clubs-feature-june-2018">precarious</a> legal position at home but enjoys significant expert <a href="https://www.tdpf.org.uk/sites/default/files/Cannabook%202nd%20Ed%20Digital.pdf">support</a>, either as a permanent position or as a transitional model while more formally regulated production systems are developed. Such clubs should enjoy the same protection on the basis of privacy, although their regulation introduces additional <a href="https://www.theguardian.com/world/2014/aug/04/catalonia-holland-of-south-tightens-rules-barcelona-cannabis-clubs">complications</a>. </p>
<p>Parliamentarians will also have to decide on what substances will be included in the law. Will it extend to hashish (a concentrated resin made from cannabis), cannabis oils, or synthetic cannabinoids? And should the court’s reasoning not be extended to other <a href="https://citizen.co.za/news/south-africa/1531313/magic-mushrooms-legal-challenge/">substances</a> that have been judged by experts to present <a href="https://www.vox.com/2015/2/24/8094759/alcohol-marijuana">less harm</a> than alcohol?</p>
<h2>Preventing harm to others</h2>
<p>The prevention of impaired driving is a reasonable <a href="https://www.timeslive.co.za/news/south-africa/2018-09-18-dagga-ruling-raises-questions-around-driving-stoned-in-sa/">concern</a>. Given the <a href="https://vancouversun.com/opinion/opinion-zero-tolerance-for-cannabis-and-driving-makes-zero-sense">difficulty</a> in physiologically measuring cannabis intoxication, there will be a need to formalise rules on field sobriety testing. Parliament will have to keep abreast of emerging evidence. Clear public messaging should be developed to communicate that cannabis-impaired driving is illegal and risky.</p>
<p>Another concern is the protection of minors. Regular cannabis use does seem to pose <a href="https://www.sciencedirect.com/science/article/pii/S0163725814002095">risks</a> for adolescent brain development, so it is important that the country works out how best to discourage its consumption among or near children. </p>
<h2>Commercialisation question</h2>
<p>One criticism of the private cultivation and use model – such as the one in <a href="https://www.tdpf.org.uk/sites/default/files/Spain_0.pdf">Spain</a> – is that it forgoes the possible benefits of a more open regulated and commercialised system. This includes prospects for purity and potency controls, economic and employment growth, and tax revenues that can be earmarked for programmes to help mitigate cannabis-related risks and harms. </p>
<p>The approach envisioned by the South African Constitutional Court also has the disadvantage that it leaves intact the criminal market that supplies those who don’t meet its restrictions. Not every prospective cannabis user will be willing or reasonably able to grow their own plants or to join a cannabis club. So, there will still be a role for organised criminal groups to reap profits. </p>
<p>And there will still be a need for police enforcement. But it will involve even greater scope for discretion and possible corruption. The country will need to guard against a <a href="https://www.ncbi.nlm.nih.gov/pubmed/25959525">“net-widening”</a> effect, where policy liberalisation ends up drawing even more people into conflict with the criminal justice system. South Africa will also need to interrogate whether it is still justifiable for people to be jailed for supplying a product that consumers have a right to possess.</p>
<p>Finally, there is the question of the many people who have been criminalised for an activity that is now considered an expression of a basic constitutional right. The court was clear that its judgment was not to be applied retrospectively. However, other jurisdictions – as in the US – have already begun offering pardons <a href="https://www.nytimes.com/2017/01/04/us/vermont-marijuana-pardons.html">on request</a> or discussing whether pardons should happen <a href="https://news.vice.com/en_ca/article/3kjwz8/canada-is-facing-mounting-pressure-to-grant-mass-pardons-for-weed-possession">en masse</a>. </p>
<h2>Not a free-for-all, but an excellent start</h2>
<p>Those cannabis campaigners and aficionados who were hoping for a Colorado-style boom in consumer options would have been disappointed. On balance, however, this may be a good thing, at least in the interim. Many policy reform experts warn of the dangers of over-commercialisation. </p>
<p>Putting the supply of a risky product in the hands of profit-maximising private interests with little interest in public health is not a recipe for success. In this, the history of alcohol and tobacco control provide a useful lesson.</p><img src="https://counter.theconversation.com/content/103607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anine Kriegler receives funding from the National Research Foundation and the David and Elaine Potter Foundation. She is also a member of the South African Drug Policy Initiative.</span></em></p>The legalisation of the private use of cannabis in South Africa is a victory for human rights. But, much more work needs to be done to make it practical.Anine Kriegler, Researcher and Doctoral Candidate in Criminology, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/814912017-07-27T14:40:35Z2017-07-27T14:40:35ZWhy the South African state needs to lose its fight against marijuana policy reform<figure><img src="https://images.theconversation.com/files/179611/original/file-20170725-28293-1defi3y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thousands of South Africans are calling for the legalisation of marijuana. </span> <span class="attribution"><span class="source">EPA/Nic Bothma</span></span></figcaption></figure><p>South Africa is among many countries facing challenges to their drug control policies, particularly around marijuana, known locally as dagga. The <a href="http://www.sanctr.gov.za/YourRights/TheMedicinesControlCouncil/tabid/176/Default.aspx">Medicines Control Council</a> is developing <a href="http://www.mccza.com/documents/5933cac110.14_Media_Release_Cannabis_Nov16_v1.pdf">guidelines</a> for production for medicinal use and the country’s highest <a href="http://www.cda.gov.za/">drug policy guardian</a> has <a href="http://www.samj.org.za/index.php/samj/article/view/10863%3C/u">recommended</a> broader decriminalisation. </p>
<p>The key battle ground, however, is in the courts. </p>
<p>A new trial the state is likely to expend considerable energy trying to prove that marijuana use is seriously harmful. If this is indeed the substance of its argument, it should lose. The point isn’t whether marijuana causes harm, but whether criminal prohibition is the best way to address those harms.</p>
<p>South African Police Service statistics suggest that most anti-drug activity is against those in possession of small quantities. These are people who are unlikely to play any strategic role in drug supply, and whose deterrence or removal from the market has little prospect of having any impact overall.</p>
<h2>The legal wrangle to date</h2>
<p>The first recent knock to prohibition came in 2016 with a ruling by the Constitutional Court. The court <a href="http://www.saflii.org.za/za/cases/ZACC/2016/21.html">held</a> that the constitutional right to privacy was unjustly violated by parts of the country’s <a href="http://www.gov.za/sites/www.gov.za/files/a140_1992.pdf">drugs and drug trafficking act</a> that allowed a law enforcement officer to stop and search any person, property or vehicle on the grounds of “reasonable suspicion” of violation of the Act. The ruling <a href="http://www.groundup.org.za/article/when-can-police-search-your-home/">meant</a> that police would no longer be able to enter and search private properties without a warrant. </p>
<p>A bigger challenge came from the Western Cape High Court. This case was brought <em>inter alia</em> by <a href="http://www.iol.co.za/pretoria-news/rastafarian-lawyer-in-the-dock-over-dagga-1315010">Gareth Prince</a>. Prince lost a <a href="http://www.saflii.org/za/cases/ZACC/2002/1.html">case</a> in the Constitutional Court in 2002 that sought exemption from the laws on the basis of his Rastafari religion. </p>
<p>Prince’s more recent case sought not just an exemption based on religious freedom, but to challenge marijuana prohibition overall on various grounds – including that it was based on an irrational distinction from alcohol. Ras Prince brought the case with Jeremy Acton, leader of the <a href="https://www.daggaparty.org.za/index-2.html">Dagga Party</a>.</p>
<p>Judge Dennis Davis, for a full bench, <a href="http://www.saflii.org/za/cases/ZAWCHC/2017/30.html">found</a> that the criminalisation of marijuana within the home unjustifiably limited the right to privacy. He concluded that the state had failed to show that criminal prohibition was the least restrictive way to deal with the problems caused by marijuana. The order was suspended for 24 months to allow parliament to amend the relevant laws.</p>
<p>The state quickly indicated its intention to appeal and to continue enforcement without any change. But it seems that several people charged with marijuana crimes have received stays of prosecution pending the outcome of the legal process.</p>
<p>A separate case is about to kick off in Pretoria. Myrtle Clarke and Julian Stobbs, known as the <a href="http://citizen.co.za/news/1581689/everything-you-need-to-know-about-the-dagga-couple/">“The Dagga Couple”</a>, have turned their arrest for possession into a decriminalisation crusade. Their team has raised funds for local and international <a href="https://fieldsofgreenforall.org.za/expert-witnesses/">expert witnesses</a> to help them make their <a href="https://www.fieldsofgreenforall.org.za/images/legal/DC_LEGAL_SUMMARY.pdf">argument</a> that the criminal prohibition of marijuana is irrational, wasteful, and unjustifiably infringes numerous constitutional rights. </p>
<p>This is the first time that the issues will have the chance to be properly aired in court. </p>
<p>It’s long overdue.</p>
<h2>Pattern of arrests</h2>
<p>According to the South African Police Service’s annual <a href="https://www.saps.gov.za/about/stratframework/annual_report/2015_2016/saps_annual_report_2015_2016.pdf">report</a>, there were 259,165 recorded counts of illegal drug possession or dealing in 2015/16. These charges resulted in 253,735 arrests, accounting for almost a sixth of all arrests. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=385&fit=crop&dpr=1 600w, https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=385&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=385&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=484&fit=crop&dpr=1 754w, https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=484&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/179610/original/file-20170725-31338-1xvauvr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=484&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A Rastafarian lights up during a march for the legalisation of marijuana in South Africa.</span>
<span class="attribution"><span class="source">EPA/Nic Bothma</span></span>
</figcaption>
</figure>
<p>Most drug arrests are made through stop-and-search or roadblock operations. National figures aren’t available but those from two of the nine provinces suggest that a vanishingly small proportion of drug charges (2%-4%) are for dealing as opposed to possession of drugs. Very few drug arrests are made at ports of entry, through special operations, or through the Serious Organised Crime Investigation Units. </p>
<p>Between 65% and 70% of drug charges are for possession of marijuana. The presumption is that possession of over 115 grams (about 4 ounces) constitutes dealing. This means that every year police seek out and charge about one in every 300 people for possession of an amount of marijuana that weighs no more than an apple. </p>
<h2>Criminal prohibition</h2>
<p>It isn’t clear whether criminal prohibition is an effective way to dissuade or help drug users. <a href="https://www.ncbi.nlm.nih.gov/pubmed/26515984">Evidence</a> from other countries suggests that, generally, the greater the perception of risk, the lower the prevalence of use. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/179614/original/file-20170725-12396-1ibb8l8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">shutterstock</span></span>
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<p>But the strength of this effect is <a href="http://cssdp.org/uploads/2016/09/State_of_the_Evidence_Cannabis_Use_and_Regulation_Sept_7.pdf">debatable</a> to say the least, and it remains far from clear whether a liberalisation in marijuana policy results in a significant increase in its use or in associated harms. The effects of the recent wave of marijuana policy changes in various US states, for example, are still being closely <a href="https://www.washingtonpost.com/news/wonk/wp/2016/10/13/heres-how-legal-pot-changed-colorado-and-washington/?utm_term=.a17c9d60429f">observed</a> and debated. </p>
<p>For people who have highly problematic drug use patterns, there is even <a href="http://beckleyfoundation.org/resource/briefing-paper-incarceration-of-drug-offenders-costs-and-impacts">less</a> consensus that the threat or reality of imprisonment is an appropriate or effective tool for either dissuading or helping them. Other approaches may well do significantly <a href="https://www.researchgate.net/profile/Caitlin_Hughes/publication/249284847_What_Can_We_Learn_From_The_Portuguese_Decriminalization_of_Illicit_Drugs/links/54d406e90cf24647580553bb.pdf">better</a>.</p>
<h2>Decriminalisation</h2>
<p>There are many <a href="http://decrim.idpc.net/">models</a> of decriminalisation. Policies that work in the Netherlands or Colorado might not work in a developing country like South Africa given differences in drug use, drug market and price structures, regulatory capacity and political climates.</p>
<p>The goal must be to find a broadly acceptable balance of a complex range of harms, benefits, and rights in the context of limited resources. </p>
<p>For example, South Africa needs to consider what impact decriminalisation would have on small-scale, informal farmers who <a href="http://www.tandfonline.com/doi/abs/10.1080/0376835032000149252">depend</a> on the crop for their livelihood. Legalising marijuana could mean that they are forced out of the market by large agribusinesses, or falling prices. </p>
<p>On the other hand, prohibition arguably does more to harm the current producers and distributors than consumers. </p>
<p>The right balance won’t be found if marijuana is simply cast as a devastating alien threat to the nation’s children and communities. Instead it needs to be understood as a socially and economically ingrained pastime for which there is clearly considerable popular demand.</p>
<h2>Harm is not enough</h2>
<p>Justifying the criminal prohibition of marijuana is not a matter of proving that it causes harm. Evidence of major harm has not been enough to lead to the criminal prohibition of, for example, alcohol, nicotine, sugar, firearms and unprotected sex. </p>
<p>The case that needs to be made is whether criminal prohibition is effective, proportionate, and the minimally invasive way to address those harms. The state will struggle to prove this. An <a href="http://www.huffingtonpost.co.uk/ann-fordham/drug-policy_b_9819900.html">increasing</a> number of countries have concluded that it is not.</p><img src="https://counter.theconversation.com/content/81491/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anine Kriegler receives funding from the National Research Foundation and the David and Elaine Potter Foundation. She contributed as amicus curiae to the Western Cape High Court case mentioned in the article.</span></em></p>If South Africa’s argument in court is that marijuana causes harm, it deserves to lose. The real question it should ask is whether criminal prohibition is the effective way forward.Anine Kriegler, Researcher and Doctoral Candidate in Criminology, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.