This article originally appeared in The Daily Maverick on 21 June 2018. Please note that the Medicines Control Council (MCC) has since ceased to exist and transformed into the new South African Health Products Authority (SAHPRA).
As the UK promises an about-turn on its archaic cannabis laws and Canada becomes the first G7 nation to fully legalise, South Africa continues to brutalise its citizens for consuming, growing or trading the plant. What appears to be coalescing here is a three-way alliance between the NPA, SAPS and the Medicines Control Council, a grand plan to take the cash-crop away from local growers and hand it to Big Pharma. Can they be stopped?
I. Poison prosecutors
Last week in the United Kingdom, an incident happened that showed the world how socially and politically powerful the cannabis plant has just become. Charlotte Caldwell, the mother of a boy who suffers up to 100 epileptic seizures a day, was told by a cabinet minister that the bottle of oil confiscated from her at Heathrow Airport would not be returned. Billy, Charlotte’s twelve-year-old son, had been prescribed the cannabis oil by his GP, and had since gone more than 300 days without a seizure. On 11 June, when the Heathrow customs officers were forced to sequester Billy’s medicine, one of them apparently had tears in his eyes.
If there is anything more symbolic of the heartlessness of officialdom than a crying customs official, it’s an extremely ill adolescent boy. The incident grabbed the attention of the world’s media, and the UK government – after Caldwell accused it of signing Billy’s “death warrant” – eventually had to relent. Writing in the UK Telegraph, William Hague, a former Tory leader who once advocated a “zero tolerance” drugs policy, noted that “official intransigence is now at odds with common sense”. On Tuesday June 18, home secretary Sajid Javid performed a complete about-turn, ordering a review of the country’s stance on the medicinal use of the plant.
Which, given that June 18 also saw the Canadian parliament remove the final obstacle to fully legal recreational use – becoming only the second country in the world to do so – was nothing short of remarkable. “It’s been too easy for our kids to get marijuana – and for criminals to reap the profits,” Canadian prime minister Justin Trudeau posted on Twitter, as soon as his party’s plan was passed. “Today, we change that.”
On June 18 in South Africa, by contrast, everything remained exactly the same. Meaning, despite some of the more hopeful news stories, that medical marijuana was still as illegal as recreational marijuana, that recreational marijuana was still as illegal as crack cocaine, and that over 600 people were still being arrested in any given 24-hour period for possession, cultivation or use.
The source for this average rate of 600 arrests per day? It appeared in the cover letter that activist organisation Fields of Green for All sent to National Director of Public Prosecutions Shaun Abrahams on June 6, 2018. In the letter, Myrtle Clarke, managing director of the organisation, drew the NDPP’s attention to the fact that one of her primary objectives was to assist South Africans charged with cannabis crimes – such assistance, she wrote, came in the form of securing for them a “stay of prosecution” pending the outcome of two landmark cases currently before the courts.
Since Daily Maverick launched the “Cannabis Chronicles” in September 2015, it has been these same two cases to which we have kept returning. Before we return to them again, however, it’s worth noting something else that Clarke wrote to the prosecutor-in-chief:
“What is of major concern to us is that EACH AND EVERY SINGLE CASE results in mandatory incarceration in police cells. Even in cases where we have an attorney present at the police station and all protocols are observed, it is impossible to get the police to issue a summons so that the accused can appear in court on the next court day. The police insist that the accused be remanded in custody and this is extremely distressing for these non-violent offenders. Police have a habit of profiling young people in our streets and searching them for cannabis. This almost always happens on a Thursday or Friday so that the police can guarantee that these people will spend at least two nights in police holding cells before appearing in court. In the holding cells, which are filthy, with little or no food or bathroom facilities, the accused are exposed to violent criminals and are left vulnerable and terrified.”
Equally terrifying is the fact that the National Prosecuting Authority is persisting with its habit of throwing the full book at cannabis offenders, despite the judgment handed down by Dennis Davis in the Western Cape High Court in March 2017. In his “Request for Undertaking to Observe Order of Court”, which attorney James Grant sent to Abrahams along with Clarke’s cover letter, it was pointed out that while these prosecutions are sporadic they are particularly concentrated out of the office of the Director of Public Prosecutions for South Gauteng, Johannesburg. Grant also reminded Abrahams of section 172(2)(b) of the Constitution, which provides for a “temporary interdict” or “temporary relief to a party” pending the decision of the Constitutional Court on the validity of legislation.
To get to those landmark cases, then: as Daily Maverick has written here, here, here and here, the constitutional and legislative challenges to cannabis prohibition in South Africa have to date been centered around the right to privacy and something called “scale of harms” – the latter referring to the evident impossibility that dagga causes more harm to society than alcohol or tobacco, which are both legal. The Davis judgment was based primarily on the privacy aspect, ordering that the use or cultivation of cannabis “by an adult in a private dwelling” could be used as a legal defence, a decision that is currently before thegrant Constitutional Court for ratification. In August 2017, after the case of Myrtle Clarke and Jules Stobbs (the Dagga Couple) was stonewalled by the State and their fundamentalist Christian co-defendants Doctors for Life, the decision was made to attach this High Court matter, based largely on “scale of harms,” to the Constitutional Court too.
So here is the next thing that Grant wrote to chief prosecutor Abrahams:
“I draw your attention to this order in the judgment of Davis J (for the unanimous court) – at paragraph 131: ‘In the period, it is necessary to provide that prosecutions that fall within legal provision [sic] declared to be unconstitutional should be stayed.’”
And then: “I submit that the persistence, by any prosecutor, of any prosecution under theimpugned provisions is in contempt of the order of Davis J.”
And finally: “My clients will be grateful if you instruct all prosecutors to desist in anyprosecution under the impugned provisions pending the decision of the Constitutional Court, and confirm, within 10 court days of receipt of this letter, that you have done so.”
II. Poison police
Those ten court days will be coming to an end about the time this article appears. Has Abrahams instructed his prosecutors to stop throwing the book at cannabis offenders? Daily Maverick has been unable to confirm whether he has. Does Abrahams care that Grant has threatened to seek a contempt order? As Daily Maverick’s Richard Poplak has made abundantly clear, Abrahams and his NPA don’t seem to care about much these days.
Which is bad news for the 73 people who have already attached their cases to the Dagga Couple’s eight-year-long – and counting – legal saga. But is even worse news, perhaps, for the 900,000 small-scale farmers in South Africa who make a living out of cultivating the plant.
In this regard, Daily Maverick established contact recently with a grassroots activist movement, based in Pondoland in the Eastern Cape, known as the Umzimvubu Farmers Support Network, or UFSN. For obvious reasons, the leaders of the movement couldn’t go on-record with their names. What they could do, however, was give us first viewing to a short film they’ve just produced:
The film is entitled Traditional cannabis growers’ thoughts on Medicines Control Council guidelines, and it exposes a two-pronged attack on South Africa’s indigenous dagga growing population: the attack from the police, and the attack from the MCC. Our UFSN contact informed us that the people of Mkumbi village, where the film was shot, are “completely okay with their images being published as they are protected by geography… it’s only helicopters that can get there and they’re on the map for that anyway.”
In other words, this is one of the villages targeted by South African Police Service helicopters for spraying with the Monsanto-patented poison known as glyphosate, a product that SAPS have reformulated for cannabis fields and redubbed “Kilo Max”.
As Kimon de Greef wrote in a revelatory investigation for Groundup in 2016, while villages such as these have been sustaining themselves on cannabis cultivation for many generations, the state has been conducting eradication programmes for more than 60 years – “but [has] failed to halt the practice, which is sustained by consistently high demand for dagga and a lack of alternative options for the farmers who produce it, among other factors”.
And yet, as the film tells us, the aerial fumigation continues – poisoning the water; killing most other crops; causing spontaneous abortions among the cattle and goats; triggering skin and chest complications among the villagers – at the very same time that the MCC has released its Licence Application to Cultivate, Manufacture or Import Cannabis for Medicinal Purposes.
Here’s the thing: how many of these growers from Mkumbi village, some of whom can trace their ancestral lineage in the dagga trade back to the 1800s, are able to answer “yes” to question 1.3.1 of the above application? “Is the business registered with the National Department of Health as a Manufacturing Facility?” Or question 3.4, which requests the “police clearance documents of [the] business owner”?
“If the only way we can grow is by keeping to the proposed laws,” says one Mkumbi villager to the camera, “then we might as well just leave it.”
For this woman, cannabis has never been legal. To agree to a licencing system is tantamount to certain ruin for her, because she knows better than anyone that the licences will go to people who don’t have to travel on foot or by donkey out of isolated valleys to fill in impossible forms. They will go to people with tax clearance certificates, people who have “Site Master Files,” people who don’t mind building electrified security fences in place of the simple but effective tree branches that she has been using forever.
In the United Kingdom, when the Caldwell case broke last week, the major hypocrisy exposed was this: while the police were generally turning a blind eye to recreational use, the first person to get a National Health Service prescription for medicinal use (Billy Caldwell) was getting his lifesaving oil seized from him at the airport.
“This is inhuman and absurd,” wrote Simon Jenkins in the Guardian. “The reason for Caldwell’s treatment has nothing to do with cannabis and everything to do with the ministerial terror of seeming ‘soft on drugs’. This terror is now archaic. Public opinion has moved on. So-called recreational cannabis is as freely available on Britain’s streets as cigarettes and alcohol. It is available in schools and universities, clubs and festivals.”
Jenkins may as well have been writing about South Africa, except for one thing: in this country, it’s not the street dealers who benefit most from the illegal trade in the cities; it’s the 900,000 small-scale growers, peasant farmers from places like Msinga in KwaZulu-Natal, the banks of the Orange River in the Northern Cape, and Mkumbi village in Pondoland.
And so our government, our own politicians who are terrified of seeming “soft on drugs”, are right now handing over control to the MCC – a body with the credentials to sanitise the issue in the short term, but which in the long-run will only take the trade away from the indigenous (and highly experienced) growers, handing it on a platter to international Big Pharma. In this scenario, needless to say, the waiters delivering the meal on behalf of our government will be wearing the badges of SAPS and the NPA.
As Daily Maverick has been saying since the Cannabis Chronicles launched, there is another way. South Africa, we all know, has successfully navigated the road of organised national protest before.