Page 72 - Daggabay Magazine Issue 9

Fields of Green for ALL • Collectively Reforming South African Cannabis Laws

South Africa voted Yes for all 4 votes: Cannabis despite their obligations under the UN
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1. To delete Cannabis and Cannabis resin from Drugs Conventions” provided they meet certain
Schedule IV of the 1961 Convention. conditions:
2. To add dronabinol and its stereoisomers (delta- 1. The legal regulations must be motivated by a
9-tetrahydrocannabinol) to Schedule I of the relevant human rights based interest,
1961 Convention . 2. A more effective human rights protection must
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3. To delete extracts and tinctures of Cannabis be substantiated,
from Schedule I of the 1961 Convention 3. A national democratic support and an inclusive
4. To add a footnote to the entry for cannabis decision making process are needed,
and Cannabis resin in Schedule I of the 1961 4. The legal regulation must not affect or
Convention to read “Preparations containing disadvantage other states (closed system),
predominantly cannabidiol and not more than 5. The State has an obligatory policy of
0.2 per cent of delta-9-tetrahydrocannabinol discouragement of use (i.e., prevention and
are not under international control” harm reduction).

In light of these positive developments there is “If a State is able to satisfy these conditions, under
still massive room for improvement in revising current international law it can legitimately
International Drug Control Conventions (IDCC) prioritise the human rights obligations over and
not just for Cannabis, but for all drugs. above any conflicting obligations arising from the
UN Narcotic Drugs Conventions” and regulate
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Governments tend to use the IDCC as an excuse 35
to hamper reform efforts. However, as outlined Cannabis for adult use ,” the academics contend.
in the Heads of Argument for our intervention These scholars just strengthen the evidence
in the WCHC case in the Constitutional Court , backing the Constitutional Court’s ruling:
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the time for using the conventions against us Human Rights prevail over prohibition, which
is over. Indeed, it is now largely recognised that implies that drug policies that violate human
“obligations derived from the drug control rights, either nationally or internationally can be
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conventions are subordinate to human rights disregarded. This is valid in terms of international
obligations”. Many provisions of the drug human rights law, but also internally, as “South
control conventions conflict with human rights Africa’s international obligations are subject to
obligations – which has been demonstrated in South Africa’s constitutional obligations. The
concrete by the Constitutional Court of South Constitution is the supreme law of the Republic
Africa – to wit, “human rights violations occurring and, in entering into international agreements,
in the name of drug control can never be justified South Africa must ensure that its obligations in
by States or their defenders as a necessary and terms of those agreements are not in breach of
unavoidable part of fulfilling international drug its constitutional obligations.” 36
control obligations” .
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The South African Constitution obliges our
The academics Van Kempen and Fedorova explain government to breach the IDCC to the extent
that “under international law, states must give that limitations of the conventions enable laws
priority to their human rights obligations over and that do not respect human rights and dignity.
above any conflicting obligations under the UN Arrests, incarceration and victimisation because
Drugs Conventions. This means that states have of Cannabis cultivation, use and trade under laws
the possibility under international law to regulate that are not based on evidence are cases in point.

28 CANNABIS IN SOUTH AFRICA • THE PEOPLE’S PLANT • A Full-Spectrum Manifesto For Policy Reform