The right to privacy is been violated by prohibiting the possession, purchase, or cultivation of cannabis for personal consumption by and adults in a private dwelling.
We must do away with the moralistic and paternalistic assumption that marijuana used by adults in private is always wrong and unhealthy. The current prohibition limits the right to privacy.
The Constitutional Court of Namibia has no medical evidence that dagga in small amounts is harmful to users, particularly compared to the harm resulting from the use of alcohol. Nor was there proof that marijuana use caused violent or aggressive behavior or its use led to the use of more potent or dangerous drugs.
The Constitutional Court must note that the personal consumption of small quantities of marijuana has been decriminalised or legalised in many other democratic countries and advanced economies.
The State continues to fail proving that the existing limitation of privacy was reasonable and justifiable. The relevant legal provision that criminalises personal, private use of dagga by adults must be declared unconstitutional and invalid. Namibian politicians must rectify this constitutional defect.
Cannabis used in private and not in public is protected by the right to privacy, even if the adult in question is not at home or in a private dwelling.
An example is of someone who has cannabis in their pocket for private consumption, and then step outside their home or dwelling. Provided the cannabis remained in their pocket and is for personal use, it still falls within the constitutional protection.
The point isn’t whether marijuana causes harm, but whether criminal prohibition is the best way to address those harms.
Namibian police statistics suggest that most anti-drug activity is against those in possession of small quantities. These are people who are unlikely to play any strategic role in drug supply, and those deterrence or removal from the market has little prospect of having any impact overall.
The constitutional right to privacy is unjustly violated by parts of the country’s drugs and drug/trafficking act that allowed a law enforcement officer to stop and search any person, property or vehicle on the grounds of reasonable suspicion of violation of the act.
Article 13
No person shall be subject to interference with the privacy of their homes, correspondence or communication
Searches of the person or the homes of individuals shall only be justified; where these are authorized by a competent judicial officer
Most drug arrests are made through stop-and-search or roadblock operations. Small proportion of charges (3-6 percent) are for dealing as opposed to possession of drugs. Very few drug arrests are made at ports of entry, through special operations. Between 65 percent and 70 percent of drug charges are possession of marijuana.
The presumption is that possession of over 100 grams (about 4 ounces) constitutes dealing. This means that every year police seek out and charge about one in every 150 people for possession of an amount of marijuana that weighs no more than an apple.
Harms is not enough
Justifying the criminal prohibition of marijuana is not a matter of proving that it causes harm. Evidence of major harms has not been enough to lead to the criminal prohibition of, for example, alcohol, nicotine, sugar, firearms. The case that needs to be made is whether criminal prohibition is effective, proportionate, and the minimally invasive way to address those harms. The right to privacy extends beyond the boundaries of the home. The requirement that use, possession or cultivation must be private remains.
Criminalisation of cannabis was characterised by racism and the fact that many indigenous Namibians used cannabis, and the alleged harms of cannabis was not as severe as historically argued. It also makes little sense to allow the use and possession of alcohol and tobacco and yet criminalize cannabis which is much less harmful.
When the State makes a claim about protecting its citizenry, it should be required to thoroughly analyse exactly what it is that is being protected and to specify the justification for restricting a human right. This means just because a personal right is not specifically mentioned does not mean the government can infringe upon it.
In moral terms, this is what the drug war means. It is the denial of self-ownership and self-determination. Someone who can’t decide what to put in himself does not own himself. The logic of the drug war is that the government owns you.
Look at all the rights trampled in the name of drug war and we see how all rights are connected. People are denied the right to self-medicate and take the treatment they desire and that is effective. Not just in regards to illegal drugs either, but those that are regulated.
Medical freedom in its true sense is totally impossible without drug freedom. Because of the drug war, the right to travel is impeded, and the right to have and transfer money. And anyone who believes that the right to practice free enterprise is important must necessarily oppose the drug war, which violates free market principles in million ways.
No Soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in the times of war, but in a manner prescribed by law. Surely this has not been touched by prohibition. But all around us we, we have seen the police militarised in the name of drug war.
* Brian Jaftha is President of Ganja Users of Namibia (GUN).