Cognitive liberty and the constitutionality of criminalising psilocybin mushrooms in South Africa
South African Journal on Human Rights – January 02, 2023
Source: OpenAlex
Summary
South Africa’s criminalization of psilocybin mushrooms is unjustifiable. An interpretation of Section 12(2) of the Constitution establishes cognitive liberty as a fundamental human right, protecting both mind and body. Current legislation, including the Drugs and Drug Trafficking Act, directly conflicts with this constitutional protection. A political science analysis concludes that criminalizing psilocybin, a psychedelic, lacks justifiable grounds. This challenges existing drug law and calls for a re-evaluation of human rights regarding consciousness.
Abstract
The principle of cognitive liberty is assessed as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. To do so, s 12 of the Constitution of the Republic of South Africa, 1996, is analysed, determining that s 12(2) is not a numerus clausa and is capable of enforcing further protections and/or entitlements, such as cognitive liberty. Further, it is suggested that the interpretation of s 12(2)(b) offers protection to both body and mind, and as such, also protecting the cognitive liberty right. Having established that the Constitution protects the right afforded by the principle cognitive liberty, it is deduced that the current criminalisation of psilocybin mushrooms – a means through which an individual may exercise their cognitive liberty rights – in terms of the Drugs and Drug Trafficking Act and Medicines and Related Substances Act, conflict with the rights established in s 12 of the Constitution. A s 36 limitation of rights analysis is presented, detailing that the criminalisation of psilocybin mushrooms is not justifiable when the nature and importance of the limited right are weighed against the importance and purpose of the criminalisation. As such, this article concludes that the current criminalising legislation is not justifiable.