Harare lawyer Tapiwanashe Mukandi has taken his fight to the Constitutional Court, challenging the dismissal of his High Court application that sought the legalization and cultivation of cannabis, commonly known as mbanje, in Zimbabwe.
In July of this year, Mukandi filed an application contesting laws that criminalize the possession, consumption, and cultivation of cannabis in the country. However, High Court judge Justice Gladys Mhuri, in a judgment delivered on October 31, ruled that cannabis could have potentially harmful health effects if left unregulated.
Mukandi, seeking to overturn the decision, filed an appeal with the Constitutional Court earlier this week. His counsel, Tererai Mafukidze, instructed by Tapiwa Chivanga of Scanlen & Holderness, argued that the High Court had erred in its interpretation of the Criminal Law (Codification and Reform) Act.
“The provisions of section 156(1)(a), (b), (c), (d), and (e) as read with the definition of ‘deal in’ in section 155 of the Criminal Law are inconsistent with sections 57, 56(1), and 52 of the Constitution and are constitutionally invalid only to the extent that they make the cultivation in a private place, use, or possession by an adult person for his or her own consumption in private a criminal offence,” stated Mafukidze.
Mafukidze further contended that the court had erred in its belief that international laws and conventions, such as the United Nations Single Convention on Narcotic Drugs from 1961, obligated Zimbabwe to completely ban the use, possession, and cultivation of cannabis.
“The court a quo erred in failing to hold that the international laws and conventions do not supersede the international human rights instruments to which Zimbabwe is a party, as well as the provisions of the Constitution of Zimbabwe insofar as the cultivation, use, or possession of cannabis in private by an adult person for his or her own consumption in private is concerned,” argued Mafukidze.
The legal team also called for Parliament to rectify any constitutional defects within the next 12 months before implementing the sought-after order.
“Should the Parliament of Zimbabwe fail to rectify the constitutional defects within twelve (12) months of this order, then the order will become final,” Mafukidze stated.
“Until Parliament has made the amendments contemplated or the period of suspension has expired, it will be deemed to be a defence to a charge under the provisions set out for any adult charged with the use, possession, or cultivation of cannabis in a private dwelling or private place for personal consumption.”
Respondents in the case include Ministers Douglas Mombeshora (Health and Child Care), Ziyambi Ziyambi (Justice, Legal and Parliamentary Affairs), and Kazembe Kazembe (Home Affairs).
Mukandi’s appeal to the Constitutional Court marks another step in the ongoing legal battle over the criminalization of cannabis in Zimbabwe. The outcome of this case has the potential to significantly influence the future of cannabis legislation in the country, as well as impact discussions around personal freedom and the regulation of substances with potential medicinal and recreational applications.
