Does The Best Constitution In The World Serve The Interests Of Its Citizens?

The Constitution of The Republic of South Africa has been hailed as the best Constitution in the world but some might argue that in our pursuit of being the model country in terms of human rights protection and promotion, this is oftentimes to the detriment of our citizens. I am the 'some', by the way. 

The Constitution Court recently handed down a judgment which, in layman terms, looked at the relationship between minors and the usage of dagga. The first (informal) reporting of this judgment was a bit misleading, I think I first came across on the ConCourt's Twitter page and in their defense, there isn't much sensible reporting that can be worded properly in 280 characters.

The impression given by the initial tweet was that the Court was dealing with the legalization of the usage of marijuana amongst minors and that, dear reader, was not at all what the Cenre for Child Law was arguing before court. The court was more concerned about the repercussions of the use and/or possession of cannabis by a child. The question the court had to answer was whether the criminal justice system (as it is) was the appropriate mechanism to respond to the use of marijuana by minors or if there were social systems which were designed to protect and promote the rights of the child which could be more suitable when dealing with this matter?

There is a Nelson Mandela quote that says "there can be no keener revelation of a society's soul than the way in which it treats its children", our laws are evidence of this hence in all matters that involve children, it is their best interests which are to supersede all others'. 

Judge Mhlantla, who handed down the judgment in question, shares the same sentiments as he opens his judgment by quoting paragraph 1 of the Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013] case which read "children are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. We have a duty to ensure that they receive the support and assistance that is necessary for their positive growth and development"

The reason why children enjoy the highest form of protection from the law is because we're taking into consideration that they have not yet fully developed to a point where they can make independent decisions and choices regarding their lives and in some instances, do not fully appreciate the consequences that arise as a result of their actions. I would be doing an injustice to the talk about children's rights and interests in South Africa if I did not mention the importance of section 28 of the Constitution, it is against this background that we have very important laws and regulations guarding against, for example, statutory rape. 

The Center for Child Law (CCL) asked this question, taking into account that we are not only guided by our Constitution but International Human Rights Law as well, is it then in the best interest of the child that they are criminalized for the usage and possession of marijuana? The judgment is made up of 48 pages and I cannot, for fear of writing an unwarranted bible, squeeze everything here but the Lord rewards effort so I will try.

The CCL, acting as amicus curiae, was called in after four children tested positive for cannabis during a school-sanctioned drug test. An initial agreement was reached between the State and their parents which required these children to participate in diversion programmes, they failed to comply and as a result, were subjected to mandatory residential diversion. A Review application was brought before the High Court, the children were then released after the Court found there should not have been mandatory residence for this offense and perhaps as the genesis for this very matter, the Court called into question the legality of the proceedings considering the famous Minister of Justice and Constitutional Development v Prince (2015). 

This opinion piece might turn into a constitution of its own if I don't bring us back to the B.O.D, I understand the reasoning behind these judgments, I really do because afterall, we don't have prisons but rehabilitation centres so the intention always is to briefly move offenders away from society for the safety of citizens at that time, rehabilitate and then ultimately integrate them back into society. The imprisonment and possible ruining of the future of a child because they were found with a bag or two of marijuana might defeat this purpose but then again, will this judgment not influence and encourage a rise in the usage of marijuana amongst the youth? 

Afterall, research has shown that most people don't commit crime not because they can't or because they don't want to but simply because of the fear of the consequences. This is why we do not rely on the conscience of people but we have laws in place to regulate their behaviour and in the event they have not complied, we have 'punishments' ready. What then happens when you blatantly take away the "punishment", will that not encourage the commission of crime and I'm afraid you can't run a (functional) state in that manner. 

If we are to appreciate that minors cannot make independent decisions and should be treated as such, perhaps in their case we should be using a punitive approach because lugotjwa lusesemanti anyways. There is a distinction to be made between what is on paper and what is practiced and often times, youth found in possession of marijuana would get a scolding, a scare and\or lecture from the enforcers of the law (the SAPS), it was a rare occurrence for a minor to be taken in for this. 

This ConCourt judgment has taken that away too and what's next? Will kids not be held liable for using more hard-core substances because "it ruins their future"? I promise you, it is not rehabilitation that will happen now, it is simply manna from heaven that has just befallen those who freely smoke dagga while fully apparelled in their school uniform.