High Court to hear case on whether cannabis ban in Namibia is unconstitutional

Three judges of the Windhoek High Court are set to hear oral arguments in early July on whether an attempt to have the outlawing of cannabis in Namibia declared unconstitutional is ripe to be decided at this stage.

The oral arguments are to be heard by judges Dinnah Usiku, Claudia Claasen and Philanda Christiaan on 2 July, High Court registrar Elsie Schickerling informed lawyers representing the parties involved in the constitutional challenge in a letter on Tuesday.

The plaintiffs in the case, Ganja Users of Namibia (GUN) president Brian Jaftha and GUN secretary general Borro Ndungula, want the High Court to declare the prohibition of the possession and use of cannabis by adults in Namibia as unconstitutional.

Jaftha, who is also the president of the Rastafari United Front, representing Rastafarians in Namibia, and Ndungula are further asking the court to order that all mentions of cannabis should be removed from the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act of 1971, in which the possession of cannabis is criminalised.

Jaftha and Ndungula are suing Namibia’s prosecutor general, the inspector general of the Namibian Police, the minister of justice, the minister of health and social services, and the government as defendants in their constitutional challenge.

In a plea filed at the court, the defendants say 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 is stated in the defendants’ plea.

In the plea, the defendants also say: “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.”

In their claim, filed at the court in August 2021, Jaftha and Ndungula say about the outlawing of cannabis in Namibia: “The prohibition owes its existence to outdated, unfounded and false convictions on the harmfulness and dependence-producing effects of cannabis, motivated in part by a now defunct racist political agenda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.”

They also say the prohibition of cannabis does not prevent harm that is claimed to arise from the use of cannabis, “but instead the prohibition inflicts unnecessary harms upon society through the criminal prosecution of the personal use of the harmless and medically beneficial herbal substance”.

Jaftha and Ndungula further claim: “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 claim as well.

According to the two plaintiffs, the prohibition of cannabis is an unjustifiable infringement of their constitutional rights to equality, freedom from discrimination and fair trial, and also their right to practice their culture and religion as Rastafarians.

Jaftha and Ndungula are being represented by Kadhila Amoomo.Deputy government attorney Jabulani Ncube is representing the defendants.