Green Party leader Sinkamba sues Health Minister over cannabis licences

Green Party president Peter Sinkamba has dragged Health Minister Dr Chitalu Chilufya to Court for refusing to grant him a license for cultivation of cannabis for medicinal purposes.

Mr Sinkamba said in a statement that the party has applied for judicial review in the Kabwe High Court challenging the Minister’s decision to refuse to grant him a license to import, export, cultivate, produce, among others and use of cannabis for medicinal purposes.

He said the reason the Minister gave for not issuing the licence that there are other available drugs in health facilities capable of treating illnesses which cannabis is said to heal, is unreasonable and contrary to Part II of the Dangerous Drugs Act and Section 18 of the Narcotics and Psychotropic Substances Act which recognizes that medical doctors can in appropriate cases prescribe cannabis as a prescription drug.

He added that the refusal by the Minister is contrary to Section 9 of the Narcotics and Psychotropic Substances Act Chapter 9 of the Laws of Zambia which specifically states that the use of marijuana for medicinal purposes shall not be an offence in Zambia.

Mr. Sinkamba states that Minister failed to appreciate the framework of the law whose purpose is to provide access to cannabis for those with qualifying medical needs and was therefore ultra-vires and unreasonable.

Below is the full statement

GREEN PARTY DRAGS DR CHITALU CHILUFYA TO COURT FOR REFUSAL TO GRANT LICENCE FOR CULTIVATION OF CANNABIS FOR MEDICINAL PURPOSES

Dear all,

This serves to confirm that we applied for judicial review in Kabwe High Court challenging the decision of the Honorable Minister of Health Dr. Chitalu Chilufya’s refusal to grant the President of the Green Party a license to import, export, cultivate, produce, possess, sale, distribute, and use of cannabis for medicinal purposes.

a) The reliefs sought:

a) The reliefs sought:

(i). A declaration that the said decision is unlawful, unreasonable and ultra vires the provisions of Part II of the Dangerous Drugs Act Chapter 95 of the Laws of Zambia and Section 9 of the Narcotic Drugs and Psychotropic Substances Chapter 96 of the Laws of Zambia.

(ii). A declaration that the use of cannabis for medicinal and scientific purposes is indispensable and that individual persons with qualifying medical need should not be unduly denied access in accordance with International Law and the domestic law namely the Dangerous Drugs Act Chapter 95 of the Laws of Zambia and the Narcotic Drugs and Psychotropic Substances Chapter 96 of the Laws of Zambia.

(iii). A declaration that the said aforesaid decision of the Minister violated the rules of natural justice

(iv). An Order of Certiorari to quash the said decision of the Minister of Health

(v). An Order of Mandamus directed to the Minister of Health to promulgate Regulations for the importation, exportation, cultivation, production, possession and use of cannabis as required of Minister of Health under the aforesaid Dangerous Drugs Act

(vi). An Order of prohibition restraining the Minister of Health and the Minister of Home Affairs and the Commissioner of the Drug Enforcement Commission and the government of the Republic of Zambia in general from unduly restricting the use of cannabis for medicinal and scientific purposes

(vii). Damages

(viii). Costs

(xi). Any further or other relief the Court may deem fit.

The grounds upon which the said relief is sought are as follows:

1. The refusal of the Minister of Health (the Minister) to grant the Applicant a license to import, export, cultivate, produce, possess, sale, distribute, and use of cannabis for medicinal purposes was contrary to Part II Sections 3, 4, 5,6, 7, 8 and 22 of the Dangerous Drugs Act Cap 95 of the Laws of Zambia as the Minister is mandated by the law to provide for lawful use of cannabis and only regulate the said use.

2. The refusal of the Minister to grant a license to the Applicant to use cannabis for medicinal purposes was contrary to Section 9 of the Narcotics and Psychotropic Substances Act Chapter 9 of the Laws of Zambia (Act no. 37 of 1993) which expressly states that the use of marijuana for medicinal purposes shall not be an offence in Zambia.

3. The refusal of the Minister of Health (the Minister) to grant the Applicant a license to import, export, cultivation, produce, possess, sale, distribute, and use of cannabis for medicinal purposes was contrary to International Law such as the International Convention on Psychotropic Substances 1971 which recognizes in its preamble that “ that the use of psychotropic substances [including cannabis] for medicinal and scientific purposes is indispensable and that their availability for such purposes should not be unduly restricted”. The said International Law has been domesticated in Zambia under the Narcotics and Psychotropic Substances Act Chapter 9 of the Laws of Zambia (Act no. 37 of 1993)

4. The decision of the Minister failed to appreciate the frame-work of the law whose purpose is to provide access to cannabis for those with qualifying medical needs and was therefore ultra-vires and unreasonable.

5. The Minister acted contrary to the rules of natural justice and unreasonably by stating that the Applicant had not met the required criteria for the grant of a license when no such criteria has been promulgated by the Government and the Applicant was not accorded an opportunity to be heard on any alleged deficiency in his application and none was communicated to him despite proposing in his Application to the Minister to meet with him to discuss the Applicant’s conceptual framework, as well as procedural, licensing, regulatory and other imperatives.

6. The decision of the Minister that he would not allow cannabis cultivation because it would be irresponsible and unethical was arbitrarily, capricious and unlawful as it violated express provisions of the law allowing cultivation of cannabis for medicinal purposes.

7. The decision of the Minister that there are other available drugs in health facilities capable of treating ailments which cannabis was said to heal and therefore he could not issue a license to the Applicant was unreasonable and contrary to Part II of the Dangerous Drugs Act and Section 18 of the Narcotics and Psychotropic Substances Act which recognizes that medical doctors can in appropriate cases prescribe cannabis as a prescription drug.

Peter Sinkamba
President
Green Party of Zambia