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  • Writer's pictureStuart Jeffery

Common(wealth) Knowledge #17: African court rules cannabis criminalisation for kids unconstitutional

Updated: Apr 7

The ruling from the Constitutional Court of South Africa was unanimous.

In a decision that would strike many as unusual at first, the Constitutional Court of South Africa has unanimously ruled that criminal punishments for children possessing and/or using cannabis are unconstitutional. The basis for this was that it is against the children's best interest. Yet the court also said that it did not support legalising cannabis.

Before getting into the case itself, it is necessary to provide some context about South African constitutional law. Unlike the Australian Constitution, the South African Constitution (the ‘Constitution’) contains a built-in bill of rights in Chapter 2. This is a direct result of the end of the apartheid regime in 1990, which led to the creation of a new constitution.

The provision relevant for this case is Section 28(2), which reads as follows:

“A child’s best interests are of paramount importance in every matter concerning the child.”

This operates as a catch-all clause to cover rights not specifically listed in Section 28(1), which include basic human rights, work restrictions, family/parental care, and limitations on how they can be imprisoned. Specifically, Section 28(1)(g) says that children should “not be detained except as a measure of last resort,” and should be (i) kept separately from adults and (ii) “treated in a manner, and kept in conditions, that take account of the child’s age.”

The case, Centre for Child Law v Director for Public Prosecutions, Johannesburg & Ors [2022], centred around four children who tested positive for cannabis at school. This is a criminal offence under the Child Justice Act 75 of 2008 (South Africa). They ended up detained for three months in Youth Care Centres until they completed a diversion programme. This ‘compulsory residential diversion programme,’ which combined rehabilitation and prison, was not allowed under the Child Justice Act. It was discovered that the Senior Prosecutor of Johannesburg ran these compulsory residence programmes on a large scale.

This case eventually ended up in the Constitutional Court, where the court was asked to consider the constitutionality of applying Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (South Africa) to children. This meant determining whether criminal penalties, including ‘compulsory residence programmes’ violated the rights of the child under Section 28.

One way that this question could be answered would be the right to privacy, found in Section 14 of the Constitution. That question had been answered in Minister of Justice and Constitutional Development v Prince [2018]. That case asked whether Section 4(b) of the Drugs Act violated the right to privacy of adults. The court unanimously ruled that criminalising the possession, use, and cultivation of cannabis in private was violated by the Drugs Act. The court held that the right to privacy was violated, and that the limitations imposed were not “reasonable and justifiable.”

Section 36 of the Constitution allows for “reasonable and justifiable” limitations on the basis of “an open and democratic society based on human dignity, equality and freedom.” This is reflective of the limitations allowed by the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, two major United Nations human rights treaties.

In short, Prince was effectively the South African equivalent of applying Roe v. Wade to personal cannabis use, legalising its use. But this case isn’t about privacy and legalisation, only about alternatives to criminalisation. Furthermore, as Mhlantla J pointed out, children and adults are treated differently by the law, so Prince should only be limited to adults. In contrast, Mhlantla J said, at [25], that “[t]here are valid reasons to protect children from the use of drugs,” and so legalising cannabis use for children would violate Section 28(2), as it would be against their best interests.

The scope of Section 28(2) is limited by two factors. The first is the definition of “best interests,” which is not defined in the Constitution. This is a matter of law that is to be determined by the Constitutional Court, as the highest court in the land. The second is the fact that although the best interests are “of paramount importance,” they are not of sole importance; other factors should only be considered.

Both the Centre for Child Law and the Minister of Social Justice and Correctional Services, who was the second defendant, agreed that criminalisation, specifically “custodial penalties” like the ‘compulsory residence programme,” did not deter children from using drugs. Subjecting children to this goes against their best interests and dignity, and treats them as criminals, not victims. The Centre for Child Law also argued, at [34], that:

“incarceration, as a natural consequence of criminalisation, runs the risk of exposing the child to more serious forms of drug abuse and does very little to teach children how to cope once they have been exposed to drugs.”

The court agreed with these concerns. Mhlantla J, at [38]-[39], cited Teddy Bear Clinic for Abused Children v Minister of Justice [2013] as evidence that incarceration “could expose the child … to serious forms of substance abuse and criminal conduct,” and that a criminal record leads to lost opportunities and negative “social stigma” from a young age. Plus, at [40], Mhlantla J pointed out the long-lasting mental trauma suffered by children as a result of an arrest.

The Director of Public Prosecutions had originally argued that the court should interpret the Child Justice Act to include the compulsory residence programme, which the court had rejected.

With all this in mind, the question wasn’t whether cannabis should be legalised for children; rather, it was whether the prison or social system is better suited for dealing with cannabis use by children. Reflecting on the right to dignity, Mhlantla J said that the limitations imposed on the best interests of children by criminalising cannabis were not proportionate, and were therefore unconstitutional. The court concluded, at [90], that there were “less restrictive means available” that respected the interests of children. These measures, listed in the Children’s Act 38 of 2005 (South Africa), are:

  1. Placing the child in the care of social workers;

  2. Early intervention services;

  3. Child protection orders;

  4. Prevention programmes;

  5. “Psychological, rehabilitation and therapeutic programmes; and

  6. Medical facilities specifically designed to deal with addiction.

These options do not end in “arrest, detention, imprisonment or, at best, diversion, which still leaves a child with a criminal record.” The court, at [86], said the key thing is that “[t]his approach is child-centred and focused on rehabilitation, rather than punishment.” The government has 24 months to amend its legislation to comply with this decision, following the precedent it set in Prince. During this period, no child may be arrested or otherwise treated in any way inconsistent with this ruling.

In every South African case mentioned, the courts made regular reference to the principles of international law. Mhltantla J also discussed regional treaties, like the African Charter on the Rights and Welfare of the Child, whose Article 4(1) is written like Section 28(2). Much of the information relied upon by the court relied on came from the United Nations, including a 2016 report that discussed the benefits of alternatives to cannabis criminalisation for children.

And all of this makes sense, given the history of the apartheid regime. The Constitutional Court discusses these principles because international human rights law framed the discussion about Chapter 2 when the Constitution was being drafted in the early 1990s.

Although Australian courts do look sometimes look at international law, especially cases involving Aboriginal and Torres Strait Islander rights, this focus on international law is absent in Australian constitutional law. The two constitutions were written 100 years apart, and in different social contexts. Without the international law foundation of Chapter 2 of the South African Constitution, the support for international law on the High Court of Australia is more dependent on individual judges. Some, like Gerard Brennan, Michael Kirby, and Virginia Bell, have relied on it more than others, like Michael McHugh and William Gummow. Kirby and McHugh JJ, leaders in their respective camps, famously had a bitter exchange over this in Al-Kateb v Godwin (2004).

Section 233 of the South African Constitution says that any and all legislation should try and be interpreted/read in a way that makes it consistent with international law. In contrast, even UK law, like Basfar v Wong [2022], only applies this principle to legislation based on international law. South Africa’s adoption of international law and a written bill of rights in a constitution only decades old has allowed its courts to legalise cannabis in private for adults and decriminalise it for children. And I will leave it up to you to determine whether that is a good thing.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.9/49 (29 November 1999).

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