Legal Brief reports that a landmark cannabis case heads to the Supreme Court of Mauritius in which an 81-year-old citizen challenging the constitutionality of the Dangerous Drugs Act of 1840.
The plaintiff, who has not been named, cultivates cannabis for personal medical use and may face up to 25 years in prison under the colonial-era law if convicted. He argues that the legislation infringes upon his fundamental rights to liberty and personal autonomy.
No date has yet been set for the hearing.
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.
The question of whether private cannabis cultivation and use constitutes a fundamental right will be tested. In Mauritius, this is not recognised 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.
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.
Mauritius has seen recent developments towards decriminalisation. The medical use of cannabis was legalised through an amendment to the Dangerous Drugs Act in November 2022. This amendment decriminalises the use of cannabis for medical purposes and established a framework for its regulation and dispensation.
In November 2022, the Mauritian government passed an amendment to decriminalise the possession of small amounts of cannabis for personal use. Instead of facing imprisonment, individuals caught with small quantities are required to undergo rehabilitation.
The amendment also set a framework for the use of medical cannabis. However, the implementation of this framework faced delays due to vague and contradictory language in the legislation. While the amendment has been approved, its proclamation into law, and the changes will take effect once the government sets a specific date.
Pro-legalization activists say that by bringing cannabis into a regulated, legal framework, its role as a gateway exploited by traffickers will be reduced. However, there is widespread opposition to legalization as it is associated with organized crime.
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