Experts clash in court over cannabis possession law’s logic

Two pharmacology experts yesterday differed in testimony heard in the Windhoek High Court about the logical purpose of a section of the 1971 law criminalising the possession of cannabis.

Expert witnesses Louis Prins and Bonifasius Singu explained their opinions about a section of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act of 1971 to judge Hannelie Prinsloo in a case in which the constitutionality of a section of that act is being questioned.

Keetmanshoop resident Juvani Swartbooi is asking the court to declare the section of the act that says someone found in possession of more than 115 grams of cannabis is presumed to have dealt in that cannabis, unless it is proven that the person did not deal in the cannabis, as unconstitutional.

According to Swartbooi, that presumption in the law is unconstitutional because it infringes on his right to be presumed innocent until proven guilty and on his right to a fair trial.

He is also claiming the presumption that someone found in possession of more than 115 grams of cannabis dealt in the cannabis “is illogical and does not have any justifiable rationale”.

Under the act, someone convicted of dealing in cannabis can be sentenced to stiffer fines and longer terms of imprisonment than someone found guilty of possession of cannabis.

Swartbooi was found guilty in the Lüderitz Magistrate’s Court of dealing in cannabis, and was sentenced to 12 months’ imprisonment, in April 2021. He had been found in possession of 241 grams of cannabis, valued at about N$2 500, at Lüderitz in February 2020.

In March 2022, Swartbooi filed an application against the attorney general, the prosecutor general and the government in the Windhoek High Court to have the presumption in the 1971 act declared unconstitutional.

In an affidavit filed at the court, attorney general Festus Mbandeka notes that Swartbooi was convicted after he pleaded guilty to the charge and admitted that he intended to sell the cannabis found in his possession. He has also lodged an appeal against his conviction and sentence.

The wording of the part of the law that Swartbooi is complaining about did not create a presumption of guilt beyond reasonable doubt, Mbandeka says.

He says in his affidavit in the matter: “The constitutionality (or not) of the specific section also needs to be considered in light of the mechanisms available to the state to effectively prohibit the abuse of illegal drugs, particularly those which result in severe damage to users and which are undoubtedly a pressing social issue.”

In their testimonies yesterday, Prins and Singu testified about their differing findings in expert witness reports that they completed for the court.

Singu concluded in his report that the section of the act that Swartbooi wants to be declared unconstitutional “was passed to protect the public against the negative socioe-conomic impact of addictive substances such as cannabis”.

He also stated: “Even with the prevailing legal reform with regard to cannabis laws in current times, the most progressive states still insist on having restrictions on the possession, use and dealing in of cannabis.”

Singu further said in his report: “In my opinion, the 115 grams limit is logical and has justifiable rationale.”

According to Prins, though, the presumption that someone found in possession of more than 115 grams of cannabis is guilty of dealing in cannabis “does not seem to be based on science”.

Prins also stated in his report: “Furthermore, when comparing the safety ratios, dependence potential and physiological and psychological effects of cannabis to that of alcohol, nicotine and caffeine, it is nonsensical that cannabis is classified as a prohibited substance in Namibia.”

Prinsloo postponed the case to 26 March after hearing the two witnesses’ testimony.

Swartbooi is being represented by Ankia Delport and Percy McNally. John-Paul Jones and Lindrowski Tibinyane are representing the attorney general and other respondents.