Moral Laws (III): Drugs
The manufacturing, dealing, use and possession of any dependence-producing substance are unlawful in South Africa. This definition in the Drugs and Drug Trafficking Act distinguishes dependence-producing substances from medically prescribed drugs (which are lawful). Dependence is considered harmful as, and when, it begins to affect areas of a user’s life negatively.
In September 2018, the South African legal position on drugs changed slightly when the Constitutional Court declared sections of the Drugs and Drug Trafficking Act constitutionally invalid in respect of the use, cultivation and possession of cannabis for private use by an adult. The Constitutional Court essentially found that the criminalisation of the private use of cannabis was an unreasonable and unjustifiable limitation to the right to privacy in an open and democratic society – decreasing the paternalistic role traditionally played by the state.
The world is changing and so are its views on drugs. This was confirmed by the Constitutional Court in its judgment when it observed that an increasing number of countries are either legalising or decriminalising the personal use of cannabis. The ‘war on drugs’ which has translated, internationally, into a proliferation of treaties, is having to change its arsenal in order to combat effectively an ever growing illicit drug trade.
The prohibition of drugs in the United States of America, for example, has inadvertently created powerful and flourishing drug cartels in neighbouring South American countries. These criminal organisations, which garnered their power from the gap in the (drug) market, do not restrict their activities to a trade of drugs. With them come a host of other atrocities and crimes, such as murder, rape, kidnapping, human trafficking, bribery, corruption and money laundering. Politicians and law enforcement also fall prey to the drug world’s web of money and power, despite the law’s well intentioned aim to combat the production and distributing of dependence-producing substances.
Additionally, the high prices of drugs (increased because of their illegal nature), coupled with the dependency created by addiction, lead to drug running and theft by ordinary citizens in order to fund their habit. It is both the dependence and the criminal activity induced by addiction that makes not only criminals but social outcasts out of drug addicts. Of course, the stigma attached to drug addicts is reinforced by the fact that their use of drugs alone is a crime.
More and more, countries are asking whether drug users are best dealt with through the criminal justice system – where punishment is the goal. Countries such as Portugal view substance dependence as a health issue and not a criminal problem. As the first country to decriminalise the use of all drugs in 2001, Portugal has achieved very encouraging results in its 18 years of decriminalisation.
Considering that winning the ‘war on drugs’ is further out of reach now than it has ever been, is it not time to re-examine the way in which we view drugs and how we choose to treat dependence?
CRIMINALISATION: ITS PURPOSE AND ACHIEVEMENTS
Dependence producing substances (drugs) are considered harmful to those who use them and to society at large. The purpose behind laws criminalising drugs is a legitimate one (for purposes of legislating): to address the harm caused by dependence-producing substances by denying all possession of them, as well as to penalise the abuse of drugs through both their use and trafficking.
The aim of legislation can therefore not be faulted, but the results that criminalisation has yielded can certainly be challenged. It can be said with certainty that the ‘war on drugs’ has not been won in either South Africa or any other part of the world where dependence-producing substances are available. Cannabis has been used in traditional South African communities for centuries – both as an intoxicant and for its medicinal properties. Cannabis is therefore not considered with the same moral repugnance as other drugs by the majority of South Africans – which played a role in the legalisation of the drug by the Constitutional Court in September 2018.
The public perception (stigma) is the determining factor for the manner in which drugs/drug abuse are/is treated. Other dependence-producing substances such as alcohol and nicotine are treated entirely differently because public perception is less condemning. There is no debate that drug abuse and drug trafficking are harmful. So the question is whether the weapons used by the state to combat the problem are appropriate or effective.
ARGUMENT FOR DECRIMINALISATION
Since we are clearly losing the ‘war on drugs’ through criminalisation, it is perhaps time that we approach the problem from a different angle or view drug abuse through a different lens. The Constitutional and High Courts appear to have come to this same conclusion when remarking (in respect of cannabis) that South Africa’s legislation does not employ the least restrictive means to deal with a social and health problem, and that, should less restrictive means be employed, additional resources may be unlocked for policing serious crimes (which South Africa needs).
Portugal realised in the late 1980s/early 1990s that it was fighting a losing battle in a country crippled by a serious drug problem after the fall of the Salazar dictatorship. In the late 1990s, the Portuguese government instituted a paradigm shift after a panel of medical and academic experts categorised Portugal’s drug problem as a health and social issue (not a criminal problem) and its drug dependent users as sick people in need of health care (not criminals in need of incarceration).
As a result, in 2001, Portugal decriminalised the use of all drugs. However, although not a criminal offence, using drugs is still an administrative offence. What this means is that drug users are assisted (not imprisoned) by the health care system. The Portuguese government now intervenes to prevent and reduce drug harm, and to reintegrate drug users into society.
In order to successfully apply this new paradigm shift, large scale investment had to be made by the Portuguese government into its health care system and harm reduction services to meet the needs of drug users. Dealing in, cultivating, manufacturing and trafficking drugs remain illegal in Portugal. Being in possession in excess of a certain amount of a dependence-producing substance is tantamount to dealing in it, as it is no longer presumed to be for personal use, and is a criminal offence.
Almost two decades after decriminalising the use of drugs, Portugal’s drug use level is now below the European average (whereas previously it was the highest in Europe). This dispels the notion that the removal of criminal sanctions will increase drug use, as there is no relationship between punitive drug laws and the rate of drug use.
Instead, drug use is linked to broader cultural, social or economic trends. The number of new HIV cases (spread through the administering of intravenous drugs) also plummeted from 1016 cases in 2001 to 56 cases in 2012, because of a “Say NO! to a used syringe” initiative which formed part of Portugal’s reform. Drug related offenders halved from 44% of the prison population in 1999 to 21% in 2012.
Other advantages of this system are that the police are free to focus their limited resources on drug trafficking/supply and other serious crimes. Drug users also no longer attract a criminal record so that there is no damage to their employment prospects when attempting to successfully reintegrate into society.
There is much to be said for the legalisation of the use of a drug like cannabis by a country’s apex court in a bid to bring the state in line with the reforms of other open and democratic societies. Not only are world views on the use of drugs shifting, but so too are the measures being used to fight the ‘war on drugs’.
Like the first two briefs on sex work in this ‘Moral Laws’ series, the stigmatisation of drug dependent users as outcasts and criminals is based on a particular morality. Unfortunately, once again, this has played the key role in our government’s (and the world’s) handling, at least until recently, of the drug problem – viewing it as a criminal justice issue as opposed to a health problem.
That said, South Africa’s substance abuse problem, as with Portugal, cannot be solved by legal reform alone. What was essential to the Portuguese success was that the legal reforms implemented were supported by a sufficiently capacitated public health care system. This has financial implications on the state which will have to increase its social spending. Whatever financial resources used to fight drug use could be reallocated to their appropriate place in the health care system. This would be accompanied by a narrative shift away from addicts as delinquents, to patients in need of treatment.
The global trade in illicit drugs is estimated to be worth £236 billion. Revenues from the drug trade are then used to create powerful organised crime syndicates and cartels. What if the state took back power by being the supplier of clean drugs (which are less harmful) at regulated prices, and distributed them in controlled quantities?
In addition to pulling the rug from under dealers’ and traffickers’ feet, there are job creation opportunities (cultivation and manufacturing) and additional revenue streams that the state could tap into. All of which would assist the state to fund its ‘war on drugs’, and perhaps eradicate the illicit trade entirely. The Prohibition of alcohol in the US is an abject lesson here.
It is time that we admit and acknowledge that drugs are here to stay, and use that as a point of departure in the ‘war on drugs’.
By Lee-Anne Germanos, Legal Researcher, Helen Suzman Foundation.
Sections 3, 4 and 5 of the Drugs and Drug Trafficking Act no 140 of 1992.
Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17)  ZACC 30.
Supra at para 94.
Ibid fn2 at para 94.
Single Convention on Narcotic Drugs of 1961, Convention on Psychotropic Substances of 1971 and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. South Africa has either ratified or acceded to all 3 treaties but has recorded reservations against certain provisions of two of them.
 JP de V van Niekerk, ‘Time to decriminalise drugs?’, South African Medical Journal, February 2011, Vol.101, No.2, pg79.
Ibid fn 5.
Ibid fn2 at para 64.
Ibid fn2 at para 65.
Ibid fn2 at para 34.
T Faragher & V Faragher, ‘Portugal – a drug policy reform case study’, April 2015 <https://essexsuffolkquakers.org/wp-content/uploads/2016/06/Portugal-a-drugs-policy-case-study.Final-version.pdf > accessed 4 November 2019 at pgs 2 and 3.
Ibid fn13 at pg 3.
Weight of the substance must be less than that deemed reasonable for 10 days’ personal use.
Ibid fn13 at pg 3.
G Murkin, ‘Drug decriminalisation in Portugal: setting the record straight’, Transform: Getting drugs under control, June 2014 at pg 2.
Ibid fn19 at pg3.
This campaign distributes clean syringes in exchange for used ones.
Defined as offences committed under the influence of drugs or to fund drug consumption.
Ibid fn19 at pg3.
Ibid fn13 at pg 7.
F Godlee, ‘Drugs should be legalised, regulated, and taxed’, the BMJ, 10 May 2018.
Supply being free for certified addicts, as in Portugal.