Cannabis bid fails as judge passes buck to lawmakers

The private use and possession of cannabis will remain prohibited in Namibia after the High Court last week declined to intervene in a constitutional challenge.

The court held that whether cannabis should remain prohibited, be decriminalised or be legalised is a matter for the legislature, as it involves broader policy decisions.

On Thursday, High Court judge Claudia Claasen dismissed a challenge brought by Brian Jaftha, president of Ganja Users of Namibia (GUN) and the Rastafari United Front (RUF), together with Borro Ndungula, after concluding that cannabis regulation is a complex “polycentric” issue involving several interconnected areas of government.

"Our Constitution allocates distinct functions to the three branches of government, and the principle of separation of powers follows from this structural design. In general, this means that courts must decline to decide matters reserved for, or within the domain of, other branches of government," Claasen ruled.

Jaftha, represented by lawyer Kadhila Amoomo, approached the court in August 2021 seeking to have laws criminalising cannabis use and possession declared unconstitutional.

The challenge centred on whether the prohibition unjustifiably limits constitutional rights, including equality, dignity, religious freedom, cultural expression and fair trial rights.

The applicants further sought orders removing cannabis-related offences from existing legislation, stopping ongoing prosecutions and providing relief for people imprisoned over cannabis-related offences.

Doctrine of ripeness

However, the court declined to deal with the question of whether Namibia’s cannabis laws are constitutional.

Instead, Claasen said that the matter is not ready for judicial determination because government is already reviewing the country’s cannabis framework through ongoing policy and legislative processes.

The judgment turned on the court’s view that cannabis regulation involves far more than a question of individual rights. The judge described the issue as one affecting public health, criminal justice, law enforcement, social policy, economic considerations and Namibia’s international obligations.

The court held that deciding whether cannabis should be prohibited, regulated or permitted requires weighing competing interests and assessing the wider consequences of each policy choice, a responsibility primarily assigned to parliament and the executive.

A question of faith

A significant part of the judgment dealt with the possible recognition of a religious exemption for members of the Rastafari community.

Claasen noted that such an exemption would create practical challenges for the criminal justice system. Law enforcement agencies would require systems and resources to distinguish genuine Rastafari adherents from people who may attempt to rely on a religious defence despite not being part of the faith.

The court said this demonstrated how changes to cannabis regulation would affect multiple government structures and could not be viewed solely through the lens of constitutional rights.

Claasen also pointed to Cabinet-directed research, policy reviews and legislative work under way within government as evidence that cannabis reform is already being considered through democratic processes.

The judgment cautioned that courts should not interfere with ongoing legislative work unless there is a clear constitutional obligation to do so. It held that intervening before the process is complete could amount to stepping into the role of parliament and the executive.

Amoomo had relied on South Africa’s Constitutional Court decision that removed criminal penalties for private cannabis use. Claasen distinguished that case, noting that South Africa’s court also recognised the role of parliament in developing a new legal framework after the prohibition was declared unconstitutional.

The High Court upheld government’s special plea, dismissed the application as premature, removed the matter from the court roll and made no order as to costs.

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DISMISSED: Brian Jaftha. PHOTO: CONTRIBUTED