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Johan Steynvaart
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Dagga legislation – the constitutional conundrum

20 February 2014, 07:33

In recent years the ability of cannabis as an alternative treatment for the management of cancer, has become extremely topical, challenging the conventional view and continued negative stigma associated with this plant. This debate was unleashed among South Africans on Wednesday, the 19th of February when Dr. Mario Oriani-Ambrosini, a member of parliament for the Inkatha Freedom Party, introduced a bill towards the legalisation of dagga for medicinal use. Dr. Oriani-Ambrosini has been battling stage four cancer in recent months, for which he engaged in illegal treatments in the form of bicarbonate of soda and cannabis, in Italy, as well as South Africa. This article seeks to establish an argument for the legalisation of cannabis as a medical treatment in South Africa.

Hundreds of studies have been conducted and published since the 1970’s in an effort to ascertain the utility of cannabis in cancer treatment. The successful studies conducted in this alternative treatment research, included focal areas among a variety of cancers which included brain cancer, breast cancer, lung cancer, prostate cancer, blood cancer, oral cancer, liver cancer and pancreatic cancer. The majority of these studies demonstrated an effective treatment for the reduction in cancer tumours and cells, or at least the management thereof.

Although cannabis has not been proven to be a “one-stop-shop” for the treatment of cancer, which is still heavily dependent on various other clinical treatments including chemotherapy, the benefits resulting from the successful studies cannot be overlooked. One of the inhibiting factors in the development of cannabis as an alternative cancer treatment is encapsulated in the fact that more scientific research needs to be conducted in this field. The cannabis plant itself consists of a variation of strains, each with different properties and effectiveness in the treatment of cancer. In addition to this, among the said studies, a variety of dosages were proven to be successful in different test environments and also different external factors, such as patient makeup and circumstances can differ immensely. The obvious next step in rationalising these various results would be to increase the amount of research conducted in cannabis as an alternative treatment to a point where an exact science can be established. This research will have to be conducted in conjunction with current treatments under the banner of co-treatments, to determine the most successful treatment man is currently capable of.

The success stories of cannabis being exploited as an alternative cancer treatment can be found far and wide, from toddlers having achieved remission to the entire curing of individuals in some instances, discounting the associated conditions of each case.  It is therefore fair to say that some individuals are alive today as a direct result of their willingness to engage in cannabis as an alternative cancer treatment, which is the driving force behind the current focus.

Most living organisms have evolved to have the ability to have an automated will to survive, with humans being no different. The human species has promoted this instinct to survive in parallel with the development of modern politics, to such an extent that the first country to adopt “the right of any human being to an existence” was the United States of America in 1776, through its Declaration of Independence. The United States declared that all men are endowed with certain rights, which included “life, liberty and the pursuit of happiness”. In 1948, after the horrific destruction and huge loss of human life during the Second World War, the United Nations General Assembly adopted these same values, which was subsequently followed by many countries the world over. These included the South African Constitution of 1996, contained in the Bill of Rights in Chapter 2, which is internationally hailed as one of the most ambitious pieces of documents for human rights in history.

The relationship between the right to live and the utilisation of cannabis as a cancer treatment has obvious connotations when viewed from a subjective perspective. The success among cancer survivors who engaged in cannabis as a treatment opens the debate to whether cannabis can be seen as a more successful treatment than current and conventional treatments. If researchers can in the near future scientifically and conclusively prove this concept, cannabis as a more successful treatment will not be continued to be overlooked. This must include the fact that research conducted has demonstrated the prevention, in addition to the cure, of certain types of cancers, which have further implications upon the right to live.

The South African law in terms of the Illicit Drug(s) and Trafficking Act 140, of 1992, prohibits the possession and dealing of cannabis in its entirety inside our borders. Many citizens of the Dagga Culture have historically been prosecuted in line with this act, with hefty punitive measures regularly instated, including imprisonment, whether for religious, recreational or medicinal use. In light of this law continuously being enforced, it is noteworthy to realise that the superseding power of the constitution of South Africa is above that of the prohibition law. The contestation of this potentially unconstitutional law can be approached from various angles, which includes the right to life through cancer treatment and prevention, the right to religious freedom and belief, and the right to freedom of expression and association.

The majority of the registered political parties in South Africa, through their individual policies, honour the Constitution of this country, as well as the directly contrasting Cannabis prohibition law. This creates a conundrum as it suggests that most party political organisations, including the state as a whole, supports a potentially unconstitutional law. To add to the Oriani-Ambrosini list of proponents for the legalisation of dagga as a medical treatment, its unconstitutionality is also currently being tested by various individuals, although most remarkably by two entities worth mentioning. After their arrest during August of 2010, the famous Dagga Couple have undertaken the daunting task of taking on the state in this constitutional battle, which is raging on to this day. Another noteworthy case was brought to the courts by mostly members of Iqela Lentsango: The Dagga Party of South Africa, in the Cape Town High Court during March 2012. Both these cases are protracted and on-going and clearly highlight the unconstitutionality of the Cannabis prohibition laws in South Africa.

Both these entities and their supporters have taken it upon themselves to contest the continued enforcement of contrasting legislation, to the benefit of all South Africans. The international prohibition campaign, with its legacy originating in South Africa, is in its final life stages, which will soon see the invalidation of the continued prosecution of otherwise law abiding citizens. These people are battling for the freedom of ordinary South Africans to have a choice, a choice to choose a lifestyle, the freedom to choose a religion and belief system, but above all the freedom to choose to live.
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