South Africa's cannabis policy is wildly confusing, despite "dagga" being part of the culture for centuries

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The story of dagga in South Africa stretches back centuries, writes Zack Ruskin.

Having been in popular use by indigenous peoples, dagga is a regional term for cannabis that partially owes its etymology to the Khoikhoi word dacha, which Western Cape colonial settlers embraced as early as the 1600s. During this period, the Dutch East India Company prohibited natives from growing the crop — a pattern which would subsequently repeat itself time and time again over the course of South Africa’s history.

In his forthcoming book, The African Roots of Marijuana, University of New Mexico Associate Professor Chris S. Duvall details how cannabis first arrived in Africa a thousand years ago. He further highlights how “European accounts of cannabis in Africa — often fictionalized and reliant upon racial stereotypes — shaped widespread myths about the plant and were used to depict the continent as a cultural backwater and Africans as predisposed to drug use.” Duvall goes on to link this legacy of harmful myths as a major influence on contemporary thinking about cannabis.

The legal prohibition of dagga can be traced back to the European colonization of South Africa. Following the 1910 unification of South Africa’s four colonies, industry leaders in the Cape raised concerns that cannabis “was a substance that diminished the work ethic of agricultural laborers, increased crime, and encouraged sex across the color line.” Writing for The Conversation, University of Johannesburg Associate Professor of Historical Studies Thembisa Waetjen further notes that white settlers teamed with African Christians in the Natal colony to demand dagga be outlawed.

Modern law made things official in 1922, when cannabis was partially criminalized as part of the Customs and Excises Duty Act. In 1928, the plant was ruled wholly illegal, and further legislation in 1937, 1971, and 1992 only served to enforce stricter penalties on potential offenders and to limit the options for anyone seeking an exemption for research, medicinal use, or religious freedom.

Things began to change in 1996 with the Constitution of the Republic of South Africa: The new constitution's religious freedom protections provided a legal avenue for dagga activists to appeal for private consumption and cultivation rights. In 2002, attorney and practicing Rastafarian Gareth Prince narrowly lost a constitutional challenge by a vote of six to five to use cannabis as a sacrament. Others have made similar efforts through South Africa’s court system, but prior to last year, things remained at a status quo.

This doesn’t mean that dagga is necessarily difficult to come by. Just as U.S. citizens found access to cannabis for decades prior to adult use and medical marijuana regulations, the problem isn’t finding dagga — it’s not getting in trouble for using it.

In September 2018,  the most important chapter of the cannabis plant's South African legacy began when the Constitutional Court decriminalized the private use and cultivation of cannabis. In their ruling, the presiding judges opted to leave the specifics of the law to the South African government, providing them with a 24-month window to establish regulations. While many citizens celebrated the news, they soon found themselves facing a legal grey area in which it was legal to privately use cannabis, but not yet legal to buy or sell it.

As the possibility for South Africa to become a major domestic hub and exporter of cannabis draws tantalizingly near, some have expressed an unwillingness to wait for the laws to catch up with the will of the people.

One such pair is the Dagga Couple — the adopted moniker of married activists Julian Stobbs and Myrtle Clarke. Following a raid on their property in 2010 that led to their arrest, together Stobbs and Clarke have mounted a public lobby in support of regulating cannabis in the South Africa. Refusing to plead guilty, they filed suit against the government, challenging that they had a constitutional right to grow and consume cannabis. Following the Constitutional Court’s 2018 decision to legalize the personal and private consumption of cannabis, the Dagga Couple has postponed the next steps of their own ongoing legal battle to 2021.

Warren Schewitz of the Africa-focused cannabis company Southern Sun Pharma compares the limbo in which South Africa currently finds itself to what’s occurring halfway around the globe in Canada.

“Currently cannabis cultivation is illegal and highly regulated in many respects similar to the Canadian model,” Schewitz said. If the idea of "illegal and highly regulated" sounds contradictory — if not altogether confusing — that's because it is: It's illegal to cultivate marijuana for sale, while cultivation of hemp and other aspects of cannabis are subject to specific regulations. “The Medical Control Council is currently reviewing applications, but it is still illegal to produce or sell cannabis," he added.

To summarize an immensely complex situation, South African companies like Schewitz’s are currently unable to cultivate or sell cannabis. All cannabis-related business currently taking place only involves cannabidiol (CBD), which is not prohibited under federal law. In the aftermath of South Africa’s Constitutional Court ruling in 2018, individuals can privately cultivate, possess, and consume cannabis, but they are not allowed to buy or sell it (or possess it in public). In their ruling, the court gave the South African government two years to get the country’s laws in line with their decision. As of now, much still remains in limbo.

Another leader in the movement is Krithi Thaver, who opened the continent's first cannabis dispensary in Durban, South Africa, last June. The Holistic Relief Wellness and Pain Management Centre currently only offers products infused with CBD. Thaver imports his oils from the United States to ensure quality, although he’s eager for the day when he’s allowed to offer a full range of cannabis products for sale.

Speaking with Cannabis News Box, Thaver emphasized his desire to “break the stigma” around cannabis. “Many people in South Africa are using cannabis as a form of alternative medication,” he said, “but they don’t understand that different compounds can be effective at treating different conditions.”

“We want to start engaging with the government to start the process of decriminalizing cannabis in South Africa...and to lift all criminal charges against patients who have been criminalized for using cannabis," he continued. "We want to educate those making the decisions on why cannabis is scientifically proven to treat people [and] we want to get doctors who have clinical expertise involved so we can take the cause forward.”

Similar to ongoing debate in the United States, several prominent South African organizations have likewise voiced their support for a comprehensive overhaul of the country's cannabis policy. In 2009, the Police and Prisons Civil Rights Union suggested that legalizing dagga could leave police officers with additional time to pursue more severe crimes. They also pointed to the windfall of taxes the government could potentially receive in a regulated cannabis marketplace.

Even South Africa’s Central Drug Authority has admitted that decriminalizing dagga is the right move, noting that the plant’s current illicit status has done little to stop its popularity and that regulated cannabis could be a benefit to public health. The CDA does not, however, support efforts to commercialize the plant.

Speaking of dagga’s popularity, the Medical Research Council estimates 2.2 million South Africans used cannabis in 2004. By 2008, that number had risen to 3.2 million. With a population of 56 million, this means that five percent of South Africa was already using cannabis nearly a decade ago — an especially notable statistic given that, at the time, possession or use of the plant was subject to a hefty fine and the risk of imprisonment for up to 15 years (with harsher penalties for offenses that also involved violence). Those convicted of selling dagga faced the prospect of a 25-year prison sentence.

When looking at the bigger picture of cannabis and South Africa, it’s important to consider the element of export, as well. A 2003 report by Tony Tompson in The Observer notes that Interpol had rated South Africa as the fourth-largest cannabis producer in the world.

“Around a quarter of worldwide seizures involve South African cannabis,” Tompson wrote. “The trend is confirmed by a report by the Institute for Security Studies in Cape Town, which says that most of the marijuana seized in the UK, and a third of that seized globally, is now of South African origin.”

These sizable stats stem, in part, from the fact that cannabis naturally grows well in the region’s climate , especially in the so-called “Dagga Belt,” which encompasses the country’s Eastern Cape and the provinces of KwaZulu-Natal. The potential for cannabis to be a lucrative cash crop has already led the Kingdom of Lesotho — a sovereign nation bordered on all sides by South Africa — to grant the continent’s first legal medical cannabis license. Issued in September 2017 to the South African company Verve Dynamics, Lesotho’s license represents the first step towards the establishment of the region as a major global hub for dagga production.

When asked what he believes it will take for South Africa to follow in Lesotho’s footsteps, Southern Sun Pharma’s Warren Schewitz suggested that establishing a functioning infrastructure for the industry will be of vital importance.

“I believe the hurdles we face are migrating the necessary technical and scientific expertise, as well as [good manufacturing practice] standards to ensure medicinal cannabis production is compliant with global standards,” he said.

As individuals like Schewitz, the Dagga Couple, and more continue to demand action from the South African government in the form of new laws that reflect the judgment of the Constitutional Court, their optimism may be cautious, but it’s still optimism all the same.

The roots of dagga were grown in the soils of colonial racism and exacerbated by decades of prejudiced policy, but still, the mighty cash crop has refused to wilt. Thus, it appears the day when dagga takes its rightful place as a proud facet of South Africa’s rich culture may soon, at last, be upon us. Until then, citizens will have to continue pushing past basic decriminalization toward a legal, commercial program.

“The future looks exceptionally positive,” Schewitz agrees. “Africa is positioned as a low-cost production hub with some of the leading strains in the world.”

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