An attempt to have the possession and use of cannabis legalised in Namibia has failed in the Windhoek High Court.
With Namibia’s government considering new legislation about the possession and use of cannabis, it is premature for the court to decide a legal challenge about the prohibition of dagga in the country, judge Claudia Claasen said in a ruling delivered in the Windhoek High Court yesterday.
Claasen said policymaking regarding cannabis – whether to legalise dagga, or keep its current prohibition unchanged – is primarily a function for the executive and legislative branches of the state.
“The classification of cannabis calls for a probe into matters such as the risk of harm caused by the substance, religious and broader social values, addiction potential, social and economic cost, and law enforcement,” Claasen said in her judgement.
She continued: “Having considered the evidence and legal issues raised herein, this court finds that the cannabis dispute is polycentric, implicating public health policy, criminal law enforcement, and broader social policies.”
Polycentricity in constitutional litigation refers to disputes in which judicial determination of issues produces consequences across other interdependent interests, Claasen observed.
She upheld a special plea by the government, the prosecutor general, the minister of justice, the minister of health and social services, and the inspector general of the Namibian Police in response to a claim filed by the president of the organisation Ganja Users of Namibia (GUN) and of the Rastafari United Front, representing Rastafarians in Namibia, Brian Jaftha, and GUN secretary general Borro Ndungula in August 2021.
Jaftha and Ndungula wanted the High Court to declare the prohibition of the possession and use of cannabis by adults in Namibia as unconstitutional.
In their claim, Jaftha and Ndungula said the prohibition of the possession of cannabis in Namibia “owes its existence to outdated, unfounded and false convictions on the harmfulness and dependence-producing effects of cannabis, motivated in part by a now defunct racist political agenda against the Rastafari religion and customs”.
Jaftha and Ndungula further claimed: “The prohibition of cannabis cannot be scientifically, morally or rationally justified as a legitimate and necessary limitation of rights.”
The outlawing of cannabis “further has no rational basis for regarding cannabis as a dependence-producing substance in any way comparable with truly dependence-producing substances such as nicotine, alcohol, opiates and other substances”, Jaftha and Ndungula alleged as well.
In a plea filed at the court, the defendants said the minister of justice has given approval to the Law Reform and Development Commission (LRDC) to undertake a review of the laws concerning the possession and use of cannabis in Namibia.
Since the LRDC is reviewing Namibia’s laws concerning cannabis, the claim filed by Jaftha and Ndungula is “premature and such an action or claim is not ripe for judicial adjudication at this stage”, it was stated in the defendants’ plea.
The defendants also said: “The task of determining in what manner cannabis may be used and possessed and for what purposes, is primarily a task for the legislature and it should be the legislature that should undertake that task and not the court.”
Claasen said courts should generally not interfere with the parliament’s ongoing legislative processes, except in the clearest cases of constitutional obligation.
The legislation Jaftha and Ndungula attacked represents a policy choice that requires democratic deliberation, Claasen said.
She also noted: “The government is currently reviewing and reforming the impugned legislation. In view of that, this court finds that judicial intervention into such polycentric, policy-laden decisions risks trespassing into the functions of the executive and the legislature. Intervention by this court, before the legislative process has run its course, will disrupt that process.”
Jaftha and Ndungula were represented by lawyer Kadhila Amoomo.
The defendants were represented by Dennis Khama and Donagene Garises.
