Opinion: Legalise it, why the argument for the decriminalization of marijuana makes sense
Nevanji Munyaradzi Chiondegwa
“Aspirin is perfectly fine but if you take 13 of those little white pills, that will be your last headache,” Katt Williams words rang through my mind as I read lawyer Tapiwanashe Mukandi’s papers as he filed with the High Court to decriminalise cannabis.
Mukandi is suing Minister of Health and Child Care, Minister of Justice, Legal and Parliamentary Affairs, Minister of Home Affairs and Cultural Heritage to have the law on possession, use, production or growing of cannabis struck off as an infringement of rights of privacy.
His averments both legally and scientifically make a lot of sense and one wonders how other habit forming substances like alcohol and cigarettes which have been scientifically proven to contain more dangerous substances including tar and nicotine which are legal.
I was catapulted back to stand up comedian Katt Williams’ Pimp Chronicles Show, where he says of weed (cannabis or marijuana), “Some of you just need to smoke some weed and see if it don’t help improve the quality of your life. I know, I see some of yous, I understand: If you ain’t smokin’ weed cause you got a good job then by all means make your paper, boo boo! But if you ain’t got no job and you no smokin’ weed I don’t know what the you are doing, I really don’t”
He goes on to colorfully say, “Don’t give me that s** about “It’s a drug” Cause it’s no ****’ drug. I did the research. It’s just a plant, it grows like that and if you just happen to set it on fire, there are some effects but that’s not the same as drugs.”
He explains why it is not a drug saying, “Drugs, you gotta do ** to it chemically. You gotta add baking soda, water, stir it up I don’t know the recipe, I’m just sayin’. As long as you be living, you ain’t never hear a nigga, overdose from marujuana…”
Such reflections by Williams, and other proponents, seem to have inspired Mukandi to take the legal route to have the ‘herb of wisdom’ or ‘fodya dzevakuru’ by others, marijuana or cannabis legalised for possession, cultivation and private use.
It is called fodya dzevakuru because in African Traditional Religion, it is mixed with snuff to make the snuff of the mediums.
It is associated with wisdom by Rastafarians.
Whether it is habit forming or does it, taken in mild doses alter the physiological or psychological state of the person is a debate for scientists and psychologists.
I liked the legal averments of Mukandi where he speaks of the criminalization of marijuana possession, consumption or growing thereof as an infringement of privacy.
Mukandi is clear in his court application as to what he wants the courts, he says, “For the avoidance of doubt, I intend on using, possessing, cultivating cannabis in private…”
Infringement on the right to privacy
In terms of Section 57 of the Constitution of Zimbabwe (Amendment No.20) of 2013, every person has the right to privacy called by Brandeis J, “the right to be let alone.”
Commenting on the scope of the right to privacy, Ackermann J in Bernstein and Others v Bester NO and Others 1996 (2) SA 751 (CC), interpreted it as follows:
“… In terms of a resolution of the Consultative Assembly of the Council of Europe this right has been defined as follows: ‘The right to privacy consists essentially in the right to live one’s own life with a minimum of interference…’”
In further explaining the right, it was stated that, “A very high level of protection is given to the individual’s intimate personal sphere of life and… there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place…”
Against this background, without question the cannabis laws which criminalises its possession, growing or consumption by an adult person, inevitably infringe on the right to privacy.
A reading of the impugned provisions reveal that an adult cannot possess, use or cultivate cannabis in private for his or her personal consumption and that is indeed an invasion of the right to be alone by The State.
However, there is a legal justification for infringement of some rights or privacy as read in Section 86(2) pf the Constitution. The limitation of a right to privacy is justified provided that such a limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.
From this, one must be quick to point out that the banning of cannabis is necessary in the interest of public safety and health.
However, while it may be established that banning cannabis is necessary for public safety and health, it is also medically proved that consumption of cannabis at a certain level is not harmful to a person.
It is also known that cannabis is prescribed to certain patients by medical personnel.
The basket ban then on cannabis fails the tests of fair and just and legally is excessive and unreasonable.
There is no legal or medical justification in limiting possession or use of the herb of wisdom when there is no evidence to suggest that its use or consumption at a restricted level is unharmful.
It is therefore not necessary to have a blanket ban on cannabis consumption or possession where minimum consumption is at face value established to be not harmful. On that extent alone, the limited consumption, possession or use of cannabis by an adult person in private cannot be criminalised.
At face value Criminalizing appears to be unreasonable, arbitrary and unjustifiable infringement on the right to privacy, he deserves to be heard in court.
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