Privacy vs. Prohibition: The Supreme Court Weighs in on Cannabis Cultivation

Qs & As

The Constitutional Court of South Africa ruled that punishing private cannabis use violates the fundamental right to privacy; the Mauritian Supreme Court’s decision on the matter is pending

By Lex

The Supreme Court of Mauritius is set to hear a landmark case filed by an 81-year-old citizen challenging the constitutionality of the Dangerous Drugs Act of 1840. The plaintiff, who cultivates cannabis for personal medical use and may face up to 25 years in prison under the colonial-era law, argues that the legislation infringes upon his fundamental rights to liberty and personal autonomy. This case opens a critical discussion about the nature of fundamental rights in a democratic society, the role of judicial interpretation in drug policy, and whether severe penalties for personal use remain proportionate and just in a modern era.

* An 81-year-old retired Mauritian citizen has recently filed a case with the Supreme Court, seeking to declare Section 30 of the Dangerous Drugs Act unconstitutional. He argues that this section infringes upon his fundamental rights, specifically his right to liberty, personal autonomy, and protection of the law. The citizen cultivates cannabis for personal medical use. If the law, which was first introduced during the colonial era in 1840, were to be applied, he faces up to 25 years of penal servitude. Is such a severe penalty for personal medical cultivation, under a law from the colonial era, proportionate and just in a modern society?

The question of whether private cannabis cultivation and use constitutes a fundamental right is a very interesting topic. In both the United States and Mauritius, this is not recognized as a fundamental right. No statute prescribes private cannabis use as a fundamental right; only the Supreme Court can establish it through interpretation, as it did in the case of sodomy.

It is very pertinent to note that the Constitutional Court of South Africa ruled differently in 2018. In the case of Minister of Justice and Constitutional Development v Prince, the court found it unconstitutional for the state to criminalize the possession, use, or cultivation of cannabis by adults for private, personal consumption.

The court gave Parliament 24 months to amend the legislation but granted interim relief, immediately making it legal for adults to use, possess, and cultivate cannabis in a private place for personal consumption.

* When we talk about a person’s “fundamental rights,” what does it imply? Would these have to do with a set of inherent and inalienable rights that are considered essential for human dignity, liberty, and a flourishing life?

Fundamental rights are a set of basic rights and freedoms essential for a democratic society, designed to protect individuals from state overreach and ensure human dignity. They are often enshrined in national constitutions and also recognized under international human rights law.

These rights are considered fundamental because they are deemed essential for individual liberty and are given a high degree of protection. They typically require a special majority to be altered.

* Are there limitations to those fundamental rights, and if so, could these limitations impede a citizen’s ability to cultivate and consume cannabis for personal recreational or medical use?

While fundamental rights can be limited, some cannot be altered, such as the right to life or protection against torture, inhuman treatment, or slavery. Laws may be passed that limit a right, provided the law is reasonable in a democratic society. It is for the court to decide whether the law is justifiable in a democratic society.

‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.’

The Constitutional Court of South Africa ruled that the punishment for the cultivation and use of cannabis in private is a breach of the fundamental right to privacy. Let us see what the Mauritian Supreme Court decides.

* The Supreme Court’s role is to determine whether any legislation, such as the Dangerous Drugs Act, is consistent with the Constitution. Do you expect the Justices to adopt a reformist approach in the case lodged by the retired Mauritian citizen and go against/beyond what was enacted in 1840, or is it more likely that they will adhere strictly to the existing law?

It all depends. Circumstances change.
In the sodomy case, Judges David Chan and Karuna Devi Gunesh-Balaghee found that Section 250 violated provisions of the Mauritian Constitution that protect equal rights and liberty. Specifically, Section 16 of the Constitution prohibits discrimination based on “sex.”
Perhaps the Court may argue that, so long as the use of cannabis occurs in private, the prohibition constitutes a breach of the right to privacy.

* While few countries have decriminalized cannabis, strong evidence supports it. For example, studies conducted by the UK Institute for Social and Economic Research suggest decriminalization of cannabis could save the British exchequer up to £300 million annually in policing, prosecution, and treatment costs. Additionally, licensing the drug could generate £400-£900 million in tax revenue without significant public health damage. Why, then, are most countries still hesitant to adopt this seemingly more efficient and safer approach?

There are many considerations. In a country where religion plays an important role, legislators may be reluctant to legalise the use of cannabis.

In the South African case, the court stated: “The criminalisation of the possession, use or cultivation of cannabis by an adult person for personal consumption in private is no longer based on deviant behaviour considered to violate prevailing social norms, but rather on arbitrary factors such as age and timing. This is constitutionally indefensible.”

This ruling was part of the landmark Minister of Justice and Constitutional Development and Others v Prince (2018) judgment, where the Court decriminalised the private use of cannabis by adults in South Africa, citing the right to privacy under the Constitution.

However, many countries still view marijuana as something inherently wrong; some still classify it as a hard drug. Even though evidence suggests that it is not exactly a hard drug and is significantly less harmful than cigarettes, it will take time for such views to gain widespread acceptance — and even longer for legislation to reflect this change.

Several countries have begun adopting more relaxed policies, but progress remains uneven and cautious.

* The Global Commission on Drug Policy’s report starkly highlights that the “hundreds of thousands of people (who) have died, considered collateral victims of prohibition… represent the price paid for a policy that has only enriched and empowered criminal organizations, fuelled corruption and money laundering, and contributed to the increase of trafficking, the number of trafficking routes and networks…” This suggests significant vested interests in maintaining drug trafficking, both within and outside illicit organisations. Does this observation resonate with the situation in Mauritius?

One view holds that prohibition inevitably breeds crime — fuelling the rise of gangs, mafias, and drug cartels. Do we really want to support a system that empowers criminal networks? People will use drugs regardless of whether we approve or not.

Rather than leaving the market in the hands of traffickers, legalising marijuana opens the door to regulated, transparent, and safer use. It also paves the way for innovation in research, cultivation, and the development of cannabis-based natural medicines. With legalisation, legitimate businesses can thrive, the government can collect substantial tax revenues, and the illegal trade that currently enriches criminal syndicates can be significantly weakened.

* The substantial volume of drug seizures and high reported rates of consumption underscore the immense scale of Mauritius’s drug problem. Furthermore, the constant evolution of trafficking methods, such as utilizing speedboats and dhows for transporting drugs from neighbouring islands, points to a sophisticated and resilient illicit market. Given these factors, winning the drug battle will undeniably be a formidable challenge, wouldn’t you agree?

The fight against the drug scourge is a relentless and global battle. The vast sums of money generated by drug trafficking serve as a powerful incentive for traffickers to continuously develop new and sophisticated methods to stay one step ahead of law enforcement.

* On the other hand, there’s also the issue of the significant social and health costs imposed by legally available substances such as alcohol, nicotine, and tobacco. These substances are widely acknowledged to cause more deaths, though admittedly fewer crimes, than less harmful but potentially crime-prone substances like cannabis (unless decriminalised). Doesn’t this raise questions about the inherent fairness and effectiveness of current drug laws?

Legalising cannabis could potentially close off what is currently an attractively low-risk entry point into the world of drug networks — a pathway that too often becomes the first step drawing vulnerable young people into more harmful and dangerous situations. By bringing cannabis into a regulated, legal framework, we reduce its role as a gateway exploited by traffickers.

Moreover, it is worth noting that alcohol — widely accepted and legal — is generally considered more harmful than cannabis in several respects. Alcohol is more strongly associated with physical dependence, severe withdrawal symptoms, violent behaviour, fatal overdoses, and long-term health complications. While both substances can carry risks, the societal harms linked to alcohol are significantly greater. This contrast calls into question the logic of criminalising cannabis while tolerating alcohol.

* When drug policies harm drug users whatever their background, enrich criminals, and ignore science, does the state have an ethical duty to review and change them based on evidence and fairness?

It is, of course, the duty of the State to identify and bring drug traffickers to justice. One of the most effective forms of punishment is the freezing and confiscation of their assets, which strikes directly at the heart of their operations — their financial power.

Mauritius Times ePaper Friday 11 July 2025