High Court makes landmark ruling on mbanje – What you should know


A prospective user of marijuana had his application seeking an order legalising the cultivation, possession and recreational use of marijuana by adults thrown out after the High Court ruled mbanje has potentially harmful health effects, if left unchecked.

The Government legalised marijuana farming only for medicinal and scientific uses in 2018.

The ruling comes after Tapiwanashe Mukandi approached the High Court last year challenging the law which deemed cannabis as a dangerous substance and drug, last year.

He wanted the court to strike down provisions which criminalised the cultivation, possession and/or use of cannabis including section 157 (1) (a) and (b) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and section 3 as read with Section 6 of Dangerous Drugs Act (Chapter 15:02).

Through his legal counsel, Advocate Terry Mafukidze, Mukandi argued that the laws criminalising the use, possession, cultivation and consumption of cannabis in Zimbabwe infringed on his rights to privacy, equal protection and benefit of the law, as well as to bodily and psychological integrity.

He said cannabis users are not given the same benefit and protection that users of more harmful and dependence-producing substances such as alcohol and tobacco enjoy.

In addition, Mukandi argued that to penalise cannabis users for engaging in a practice that is no worse than tobacco smoking and alcohol is profoundly disrespectful of human personality and violates the equal protection and benefit clause.

He also sought to argue that if users of other more dangerous substances such as alcohol and nicotine are permitted to possess and consume alcohol and nicotine, it follows that users of less dangerous substances should be allowed the benefit of the law in this respect, read part of the application.

But Justice Gladys Mhuri rejected his arguments and dismissed his application with costs of suit. She ruled that the effects of cannabis are hazardous cannabis is a mind bending and habit forming drug which the court has to be seen to be discouraging its use with all its dangerous consequences to the youth and community at large, citing a previous judgment by the same court.

“ . . . cannabis remains a dangerous drug with the potential of magnifying or increasing crime if not properly handled or controlled,” said Justice Mhuri.

She said Zimbabwe is a democratic society that is part of the global village hence it subscribes to various international conventions and treaties.

As such, the judge agreed with the submissions by the Ministry of Health and Child Care that cannabis is an internationally controlled substance by the International Narcotics Control Board (INCB).

The Convention of Narcotic Drugs 1961 establishes strict controls on the cultivation of cannabis plant and their products and Zimbabwe subscribes to this Board and to the Convention thereby undertaking to limit the production, manufacture, export, import distribution . . . trade in, use and possession of cannabis, with the exception of use for medicinal purposes as provided for in the Dangerous Drugs (Production of Cannabis for Scientific Use) Regulations, 2018 SI 62 of 2018.

Although the court accepted submissions by Mukandi that other jurisdictions have decriminalised the use, possession, cultivation of cannabis, Justice Mhuri found the submissions unhelpful to his case.

“Further, I am not persuaded by the submission that a consumer of cannabis is not treated equally with a consumer of alcohol,” she said.

“These two are different and are not comparable. If the argument was that one consumer of cannabis is not treated equally with another consumer of cannabis, the argument will hold water. Applicant (Mukandi), therefore, cannot compare himself to a consumer of alcohol. They are not in a similar position.”

Ministers of Health and Child Care, Justice Legal and Parliamentary Affairs, and Home Affairs who were listed as respondents opposed the application.

In 2018, the Constitutional Court in neighbouring South Africa passed down a judgment making it legal for adults to cultivate and smoke marijuana in their homes.

The Constitutional Court in that country ruled that the right to privacy was violated by prohibiting the possession, purchase, or cultivation of cannabis for personal consumption by an adult in a private dwelling.

The case was pursued by various parties, including a Cape Town lawyer, Gareth Prince, who is a practicing Rastafarian.

It was opposed by, among others, the country’s ministers of Justice and Constitutional Development, Police and Health, the country’s National Director of Public Prosecutions and the NGO Doctors for Life International.

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