Tag Archives: constitutional

Cannabis Reform Comes To Africa

By Marguerite Arnold
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For those familiar with the tragic history of apartheid in South Africa up until the end of the 1980’s, Lesotho is a country long associated with terrible political and economic repression. Also known as the “Kingdom in the Sky” because of its stunning geography, the tiny, landlocked country is literally inside and completely surrounded by South Africa. During the apartheid regime, Lesotho was a place where “vice industries” like prostitution and gambling were allowed to flourish by a much more conservative surrounding political regime. Much like Indian reservations in the U.S., in fact.

Even today, diamonds and water are the country’s top exports although tourism, including skiing, is still a major underpinning of the country’s domestic economy.

Moving forward into the 21st century and much like American Indians, the mountainous, impoverished country is looking at the cannabis trade to create a national income of global worth. In 2017, the country became the first on the African continent to actually legalize cultivation for medical purposes, as well as export. Illicit cultivation, mostly bound for the black market, however, has boomed since the end of the apartheid regime.

The country’s high altitude and fertile soils untainted with pesticides, makes Lesotho an ideal place to grow even outdoor crops. And as a result, the country has also begun to attract foreign capital interested in the production and export of finished products rather than the raw plant material. Several big Canadian producers, in fact, have already established commercial operations.

2018 Was The “Year For Cannabis” In South Africa

As a result of Lesotho’s lead, neighboring countries are now also following suit on the legalization front. Zimbabwe, just to the north of South Africa, has also legalized cultivation for medical purposes although local farmers have been slow to seize the opportunity. Malawi is also moving towards some kind of cannabis reform along with NigeriaGhana and Swaziland. And of course, to the north, Morocco, already established globally for illicit cannabis and hashish production (much of it making its way into Europe as it has for literally hundreds of years at this point) is also teetering on some kind of reform.

In South Africa itself, the economic powerhouse of the continent, the personal cultivation and smoking of cannabis (for both medicinal and recreational reasons) was enshrined as a constitutional right as of September 2018. That said, commercial production and sales for recreational use remains illegal. As in other places, the licensing process in South Africa has held up the medicinal and recreational market already on the table if not in the room. And most locals cannot afford the licensing fees.

That said, there is already a commercial cannabis beer brewing company called Durban Poison which rushed into the space as soon as the constitutional question changed in South Africa. The country is the biggest beer market in Africa. And there are competitors already lining up for similar opportunities of both the medical and recreational kind.

Including South Africa, according to estimates, there are already 10,000 tons of product produced (mostly illicitly) across the continent. Much as in other places, this “green gold” has financed many of the regional wars of the last sixty years. For this reason, apart from the economic benefits that legalization brings, it may well be that the first big continental competition on the cannabis front that enters first world markets, will be African rather than Latin American (or even Chinese).

Legalization and regulation will help stamp out the illicit financing of guerrilla wars and devastation, bringing more political and economic stability. It may also provide one of the best regional economic incentives to stop rare wildlife poaching.

Medical and Recreational Opportunities Loom Large- But So Do Liabilities

But for all the potential of the future, now comes the hard part (as in other regions of the world where reform has come). Stamping out the black market and establishing licencing and other regulations (of all kinds, starting with GMP). Plus of course, because this is Africa, attracting capital at reasonable rates, and establishing legitimate distribution domestically, plus trade routes for global export. Including of course, both to Europe and Australia.

Medical research in Africa is also likely to be an interesting question especially given the impact of cannabis on infection. Africa is home to some of the more dire contagious natural diseases known to man. This plant, in other words, produced locally, might also be applied locally to help manage everything from Malaria to Ebola. If not become a staple in the medical kits distributed by foreign aid organizations. That of course, will take reform at the UN level. But even this conversation, at this point, is now moving.

That said, as 2019 gets underway, there is not a single continent of the world, much less a region, where cannabis reform has not touched.

What Does The Constitution Have To Say About Cannabis Legalization?

By Brian Blumenfeld, J.D., M.A.
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With the Trump Administration sending mixed signals on legal cannabis, and with Congress beginning to ramp up efforts for reform, in order for industry stakeholders to best understand where we are headed, it will be helpful to remember how we got here. As readers may be aware, the current status of federal cannabis law can be traced back to the legislative prong of Richard Nixon’s War on Drugs. His Controlled Substances Act of 1970 (CSA) made it a federal crime for anyone to use or possess any amount of marijuana anywhere in the U.S. Current federal cannabis policy, on the other hand, complicates the matter, and can be traced back to a memorandum issued in 2013 by then-Deputy Attorney General James M. Cole. The Cole Memo instructed U.S. attorneys general in states that have legalized marijuana to use their limited resources in prosecuting CSA offenses only if they violated specific federal enforcement priorities. The highest of these priorities include diverting legal marijuana business revenues to illegal drug operations, transporting marijuana over state lines, making marijuana accessible to minors, and growing marijuana on federal lands. The problem is that the Cole Memo is only a policy, it is not law; and so not only can the current administration unilaterally change it whenever it wants, but state-legal cannabis businesses, their employees and customers are breaking federal law every single day!

Former Deputy Attorney General James M. Cole
Photo: Shane T. McCoy

This is a very unusual situation to be in for both the states and the feds, and it raises two basic constitutional questions: What gives the feds the right to make cannabis illegal everywhere in the U.S.? And how can states simply defy the prohibition?

The first question was in fact answered by the U.S. Supreme Court in 2005 when two California women (Diane Monson and Angel Raich), both with very serious illnesses, sued the federal government for confiscating their state-legal medical cannabis. The feds defended their actions by claiming that the Constitution’s Commerce Clause gave them the authority to march into California, march into the homes of these women, and enforce the CSA. Diane and Angel argued that the Commerce Clause only gives the feds the authority over interstate commerce; and since their cannabis was grown by themselves, used by themselves, never bought or sold, or transported out of the state, it was therefore wholly intrastate cannabis and had nothing at all to do with interstate commerce. The Court sided with the feds, ruling that even though the cannabis was intrastate, when you take all intrastate cannabis activity like that and add it together, it will have a substantial impact on the interstate cannabis market. Because of that connection it was ‘necessary and proper’ for the feds to enact the CSA and enforce it anywhere in the country they wanted. Although there is still much debate over this ruling, it remains the law of the land to this day.

United States Constitution
Photo: National Archive

Fast forward to 2014. The states of Nebraska and Oklahoma sued Colorado claiming that by legalizing marijuana, Colorado was violating federal law under the CSA. Because federal law overrides state law when they conflict, then Colorado’s cannabis laws must be struck down, or so they argued. In response Colorado took a very interesting position that built on the hard realities of the cannabis market. It is best to explain it in four parts. First, they cited the fact that the federal government lacked the resources to enforce the CSA, a claim which the feds have admitted to themselves. Second, Colorado pointed to a constitutional doctrine called ‘anti-commandeering’, which says that they have no obligation to criminalize cannabis at all. If the feds want to make it a federal crime, that is one thing; but that does not mean CO must make it a state crime as well. Third, Colorado said that by regulating cannabis as extensively and strictly as they have done, they are reducing the amount of cannabis activity compared to not regulating it at all. Taken together, this means that because Colorado does not have to criminalize cannabis, and because the federal government cannot enforce their own criminalization, then Colorado is actually helping out the feds by regulating the drug instead of allowing for a free-for-all under state law.

The Congressional Cannabis Caucus Announced

In March of 2016 the Supreme Court declined to hear the case in full or issue an opinion, which had the effect of giving a default victory to Colorado. Among political and legal commentators the speculation is that enough justices on the Court either agreed with the logic of Colorado’s position or wanted to wait for this federal-state controversy to be worked out by Congress. Because it was only a default victory, the constitutional status of the legal cannabis industry remains on unprecedented and unstable ground. The Controlled Substances Act has not yet been found to preempt state law, so cannabis businesses are still able to operate legally in their state. But because the CSA still applies to everyone, they do so at the whim of the Trump Administration’s policy preferences. The confusion that this presents has put cannabis businesses in many difficult situations, and it serves as the legal backdrop for such familiar problems as access to banking and contract enforcement.

Currently, legislative and judicial fixes are in motion. Related cannabis litigation is pending in federal court at the 10th Circuit Court of Appeals in Denver. And a Cannabis Caucus has formed in the U.S. Congress to address the shortcomings of the CSA. In the coming articles we will explore both of these routes to reform, the likelihoods of various possible outcomes, and the impact they will have on the legal cannabis industry.


Editor’s Note: For readers interested in learning more about this topic click here for Brian’s research article published by the Virginia Journal of Social Policy & the Law