LEX Africa member firm Scanlen & Holderness is challenging the current Zimbabwe laws that ban personal use of cannabis – that is, the criminalization of the possession, cultivation, use and consumption of cannabis.
The case is being handled by Associate Tapiwa John Chivanga who is passionate about this issue and has been working at the firm for two years, although his history with the firm goes back much further.
Chivanga had a close friend in Malawi, which is famous for Cannabis and he discussed it with him and with varsity friends and the question came up as to why it is illegal in Zimbabwe. “We have so many archaic laws which were put in place during colonial times.”
Statistics show that by 2026, the global market for Cannabis will reach about USD 90.4 billion, says Chivanga. “Zimbabwe has an ideal climate for growing cannabis, we already grow tobacco, and we are in the best position to take advantage of it for the benefit of the economy.
“While Western countries are moving to legalise Cannabis, Zimbabwe is losing out on the opportunity and Parliament is not even having a conversation about it.”
In 2018 Zimbabwe did pass a law to allow cannabis to be used for medical use and for export purposes, supported by strict rules around licences, how it’s grown, the security processes to be followed, and other aspects.
But it is not permitted to be used for personal recreational purposes. “Cannabis is described in the Dangerous Drugs Act as a dangerous substance.”
Last year, Chivanga wrote an article, based on the South African cannabis judgement, proposing a way forward to open the way for allowing personal use of cannabis.
From there he started doing extensive research, reading up on case laws and gathering opinions and affidavits from experts that worked on the South African judgement, including Professor David Nutt from the UK and Professor Abrams from the USA. “I was also speaking to lawyers based in Colombia, Canada and other countries and everyone was helping me.
“There was no funding for this project, so I persuaded these people to help me for free and they agreed and they sent me their affidavits containing expert opinion, saying they were donating them to the cause.” Chivanga also received encouragement from colleagues and former colleagues who were interested in cannabis legislation, in preparation for challenging the prohibition of personal use in the Zimbabwe High Court.
Under the auspices of Scanlen & Holderness this led to the filing of a case on 13 July calling for the personal use of cannabis to be legalised. In legal terminology this was an application for a declaratory order to the effect that the current provisions on cannabis are constitutionally invalid, said Chivanga.
This was on the basis that the banning of personal use is unconstitutional, in that it infringes on the personal rights to privacy.
“Unlike the South African case, I also included the right to bodily and psychological integrity – in which the argument goes that by allowing alcohol and nicotine they have created a threshold. “They cannot therefore say a person can’t have less harmful substances in their body or that they cannot enjoy the high they can get with cannabis that other people get with the more dangerous substances of alcohol and nicotine.”
He says he also added the right to equal protection and benefit before the law, which protects a person from being prosecuted for using cannabis (a ‘dangerous substance’) while users of more dangerous substances such as alcohol and nicotine are permitted to enjoy them.
The applicant in this matter is Tapiwanashe Chriswell Mukandi, who is a former Scanlen & Holderness lawyer himself. The case, accompanied by affidavits containing extensive expert opinions, was served on the Ministry of Health and Child Care, the Ministry of Justice and Parliamentary Affairs and the Ministry of Home Affairs & Cultural Heritage, which enforces the relevant laws.
“The reason government gave for comprehensively banning cannabis is that it is harmful to public health.”
The founding affidavit that supports the application for legalisation of personal use of cannabis states the legal case and why the constitutional rights of individuals are being infringed upon with the current laws.
“According to Professor Nutt’s expert affidavit, cannabis is less harmful to both the society and the individual than alcohol or nicotine. So, it follows that the moment you create a threshold of substances that are harmful, then less harmful substances should be permissible,” says Chivanga.
Because then, the reason that personal use of cannabis is banned for public health reasons becomes a hypocritical statement, he says. “What we want is for the legislator to declassify cannabis as a harmful substance.”
“Professor Nutt was the former head of the drug department in the UK.”
Professor Nutt’s affidavit assesses the harmfulness of different types of drugs, including cannabis, alcohol and nicotine and demonstrates that cannabis is the least harmful. This includes, for instance, whether the person using them could lose their job, whether it would cause them to be more violent, or have more traffic accidents, or whether it would increase their propensity to commit crimes.
On top of this, the affidavit of US-based Professor Abrams’ demonstrates the effects of cannabis on human health and how it benefits people with certain underlying health issues. This avoids baseless claims that it could cause harm to them.
At its core, the personal use of cannabis is a human rights issue, and Scanlen & Holderness, one of the oldest firms in Zimbabwe, has for almost 128 years been at the forefront of protecting the human rights of Zimbabweans, says Chivanga. “So, this is one of the things the firm will continue to do on a daily basis.
This is just one of the human rights cases among many that the firm is working on. “I’m the lawyer working on the matter for the applicant that Scanlen & Holderness is representing in this case.”
He says the project really started with his article that LEX Africa published last year. “Tapiwanashe read the article and contacted us and we started discussing it, and he subsequently became the applicant and I started working on the case.”
Now that the case is filed in the High Court, the respective ministries will be given 10 days to respond. Another 15 days is given to friends of the court, whereby members of the public or anyone that is either for or against can offer input or expert assistance, says Chivanga.
“Thereafter we are given time to respond to their response, after which the case will proceed to heads of argument when we set down the matter for hearing and argue the case to the fullest extent. “This is where South African judgements will come in handy, as will such judgements from any other jurisdictions.”
The judges will then decide and the matter will be referred to the Constitutional Court. “Should the High Court find in our favour, any orders of constitutional validity have to be referred to the Constitutional Court,” says Chivanga.
The court application includes the provision that once the order is granted, the government would then have 12 months to come up with the frameworks for how it is going to be regulated.
During those 12 months anybody who is using or cultivating cannabis should not be arrested, says Chivanga. It will be deemed a defence to the charges that the use, possession, or cultivation of cannabis in private is for personal use.
For the government to bring in new laws to legalise personal use of cannabis will be as easy as cutting and pasting from South African laws, because the two countries share the same legal regime, says Chivanga.
“And the Zimbabwe regulators can learn from any mistakes the South African regulators made when they implemented their laws to legalise personal use of cannabis. “South Africa has opened the way for us,” he says.
