Has the legalisation of cannabis finally become a reality?

The festive season has indeed been a happy one for supporters of the legalisation of cannabis. Uruguay has become the first state to make the production, distribution and consumption of cannabis entirely legal. In the US, home to the “war on drugs”, the states of Colorado and Washington State have followed suit, putting in place the regulatory systems needed for the production, distribution and consumption of cannabis by private citizens. Even the city of New York has begun authorising the use of medical marijuana. My Facebook page has been alight with overtures of joy. Champagne has been drunk and bongs lit. After all, it seems that the legalisation of cannabis has finally reached a tipping point; if even North America is jumping on the legalisation bandwagon, it shouldn’t be long before the whole world is. Right?

These are indeed great strides in the legalisation movement, strides that could have scarcely been thought practically possible just a decade ago. And while I don’t want to put a damper on the celebrations, I do want to reflect critically on these achievements. The devil, they say, is in the fine print. Unfortunately it is this fine print that will have a direct bearing on legalisation efforts in South Africa. Beyond the hyperbole of the likes of the Dagga Couple and others, the steps taken by both Colorado and Washington State are complex, detailed, and costly — three things South Africa would find very difficult to translate as a useful regulatory framework for the legalisation of cannabis in the country.

Firstly, while both states are legalising the consumption of cannabis, there are some fundamental differences operating behind the scenes. Colorado, for instance, requires that anyone who sells cannabis to have also been a producer and distributor — known as vertical integration — and to have lived in the state for at least two years. This prevents cannabis grown in Colorado from moving across borders while also weeding out fly-by-night suppliers. Washington state, on the other hand, has chosen to impose a 75% tax mark-up on the produce (levied through three separate 25% charges), while also capping state production at 80 metric tonnes a year (not a lot in cannabis terms). Both regulatory frameworks are extremely strict, and have not limited the powers of the Federal government and DEA — both will still be extremely active.

Both of these systems rely on stringent and effective regulation. Both systems tax and control the entire process, both require third-party testing and both limit the sale of and the amount of cannabis that can be carried by a single person. The regulatory word of the moment is “seed-to-sale”. Without these measures, the Federal government would have never allowed legalisation to occur. Indeed, if the states do not effectively regulate the legalisation process, the Federal government will eagerly reassert its authority over the matter. And herein lies the problem. The South African government (excluding SARS) is unfortunately not very good at regulating anything. From immigration to TV licenses, the government tries its best but is not cut out for the individual and micro-regulatory practices that will be necessary to effectively regulate the production, distribution and consumption of cannabis.

There is also one other major consideration at play here: cannabis does not grow at commercially viable levels in either Colorado or Washington State. The plants have to be cultivated using hydroponic methods in brightly lit, climatically controlled indoor spaces. This makes regulation possible as each plant can be tagged from its germination to harvesting. The same, however, cannot be said for Southern Africa where the plant grows, literally, like a weed. Regulating the production and distribution of the plant is, without prior knowledge of the exact places it is being cultivated, nigh on impossible. Regulation of the level employed by both Colorado and Washington State is, furthermore, extremely expensive. Many of the necessary regulatory systems already exist in these states and are simply being adapted. South Africa, however, would have to create, from scratch, a comprehensive regulatory service. Considering the generally conservative nature of South African society, the costs involved in setting up such a service would soon be shot down by the public. After all, surely the government should be spending money of basic education services rather than implementing an extensive and ultimately unnecessary regulatory service to control the production, distribution, and use of cannabis?

Pardon my pessimism then, but I am not sure how much South African supporters of legalisation have to celebrate. The legalisation of cannabis in Colorado and Washington State does represent a giant leap forward in the larger drugs discourse. South Africa, however, lacks both the resources and ability to implement such complex regulatory systems. Might there be other systems? The bong will have to remain unlit, I am afraid, at least for a few more years.