Cognitive liberty and the constitutionality of criminalising psilocybin mushrooms in South Africa

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.


Introduction
Naturally occurring psychedelic substances have been used by humans arguably since our prehistoric ancestors began to roam the earth. Humans 'have been using psychoactivemind-affectingsubstances such as opium, cannabis, coca, betel, kava, peyote and qat for millennia, and for diverse purposes ranging from social and spiritual to medicinal and nutritional'. 1 Evidence of the use of these substances can be found throughout the history of many human civilisations. 2 However, in modern times society has largely frowned on the use of psychedelics, typically denoting recreational drugs with negative societal connotations of illegality and unwanted harm, abuse, or addiction. This is also the case in South Africa, where the use of psychedelic substancessuch as psilocybinis criminalised under the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Act 101 of 1965.
Academic development on the right to psychological integrity may, however, pose a fresh avenue to challenge such criminalisation. The theory of cognitive libertysuccinctly regarded as the right to unfettered control over one's mind, mental processes, and the freedom to explore one's consciousness without restrictionis one such avenue through which criminalisation may be challenged. Cognitive liberty entails the liberty to engage in mind altering practices as and how one deems fit. It is heavily linked, if not tantamount, to bodily autonomy. Accordingly, academic analyses on whether the right to cognitive liberty has a place in South Africa's progressive constitutional lawand deserves the accompanying legal recognition and protection are beckoning.
The right to freedom and security of the personas guaranteed in s 12 of the Constitution of the Republic of South Africa, 1996may arguably provide a constitutional basis for not only the recognition of cognitive liberty, but further, the reconsideration of how psychedelic use is regulated. This article analyses the continued justification for a blanket ban on the use of psychedelic substances, focussing specifically on psilocybin mushrooms, to test the potential role of a right to psychological integrity in the constitutional analysis of such ban.
The emphasis here will be solely on whether the criminalisation is justifiable in terms of the right to freedom and security of the person, specifically the right to psychological integrity, as provided for in s 12 of the Constitution. I will argue that the Constitution provides for the right to cognitive liberty, and as psilocybin mushrooms aid in the exercising of an individual's cognitive liberty, their criminalisation is a limitation of a constitutional right. Accordingly, the justification of the limitation must pass constitutional muster in terms of a s 36 analysis.

Understanding psychedelics and their criminalisation
To better grasp the intricacies of this paper's arguments, it is necessary to offer a contextualisation of the fundamental constituents in playpsychedelics substances, cognitive liberty, and S12 of the Constitution. What psychedelic substances are, and their criminalisation in South Africa, will be detailed through a discussion of the criminalising legislation, notably the Drugs Act and the Medicines Act. Furthermore, the notion of cognitive liberty will be clarified, explaining how it is protected and guaranteed by the Constitution. Finally, a discussion of s 12 of the Constitution will be presented.

Psychedelic substances
2.1.1 What are psychedelic substances? The classic psychedelics are psilocybin (found in mushrooms), mescaline (found in peyote cacti), dimethyltryptamine (DMT, found in ayahuasca), ibogaine (found in the tabernanthe iboga plant), lysergic acid diethylamide (LSD, synthetically produced from ergot fungi) and 3,4-methylenedioxymethamphetamine (MDMA, synthetically produced). 3 These substances form part of a larger chemical family of consciousnessaltering substances. Predominantly used as sacraments throughout human history, 4 these psychedelics have traditionally been ingested within sacramental, religious, or spiritual settings, but may also be used recreationally, and potentially medically.

Effects of psychedelic substances
Psychedelic substances have an effect on the human brain that regularly renders experiencers in a state of ineffability, 5 challenged to verbalise what is oftentimes a deeply personal, complex experience. Therefore, to understand what psychedelics do to humans, the effects will be separated into primary and secondary categories. The primary effects relate to the immediate effects of the psychedelic substances and how they alter consciousness. The secondary effects regard the long-term influence of psychedelics. The associated harms will also be detailed.
The active chemicals in psychedelics do not 'produce, originate or form anything at all'. 6 Rather, they 'modify fundamental brain processes that normally serve to constrain neural systems central to perception, emotion, cognition, and sense of self '. 7 This allows the human brain to experience the heightened state of consciousness and synaesthesia, 8 referred to as a psychedelic experience, or colloquially as a 'trip'. This altered state of consciousness is the primary effect of psychedelic substances. Consciousness is 'our subjective awareness of ourselves and our environment', 9 and can be altered by many activities, 10 or substances. 11 The reasons that psychedelics have an effect on the human brain and consciousness is neatly summarised as follows: a psychedelic substance's '"keys" can fit human "locks"'. 12 The human brain is predisposed to receiving the active ingredient contained in psychedelics.
To comprehend the science behind a psychedelic experience, a simplistic understanding of the workings of the brain is necessary. The human brain contains billions of neurons that connect with one another through signals that are transported by chemicals called neurotransmitters. There are a variety of neurotransmitters responsible for the release of neurotransmitter molecules between two neurons. These molecules can bind to the receiving neuron's receptors where they act upon the receptors 3 D Marlan 'Beyond cannabis: Psychedelic decriminalization and social justice' (2019) 23  to elicit a variety of effects or reactions. 13 When psychedelics are consumed, their chemicals bind to the neurons and receptors of the brain, eliciting the psychedelic response. These substances primarily stimulate the serotonergic and dopaminergic systems and indirectly stimulate the glutamatergic and gamma-aminobutyric acid systems. 14 It is useful to note that psilocin, the metabolite of psilocybin, shares close similarities in composition and shape with serotonin. 15 The psychedelic experience has been explained as not 'causing physical addiction, craving, major physiological disturbances, delirium, disorientation, or amnesia' and 'more or less reliably [producing] thought, mood, and perceptual changes otherwise rarely experienced except in dreams, contemplative and religious exaltation, flashes of vivid involuntary memory, and acute psychosis'. 16 The experience begins soon after a psychedelic is consumed, with the experience's duration ranging from minutes to hours, depending on the substance. The user will begin to experience ranging alterations in their engagement with reality, based on the substance's quantity and quality. This results in hallucinations ranging from a subtle heightening of senses to a fully immersive experience in which reality dissipates and is replaced by deep hallucinations.
However, reducing a psychedelic experience to simply hallucinations is inaccurate. Rather, psychedelics produce more than 'frank hallucinations', suggestively having radical effects on self-identity and human connectedness. 17 As research has shown, the experience can encourage enduring positive benefits, with users reporting feelings of 'universal connectedness, experience of beauty, and familial love'. 18 The secondary effects of psychedelic substances include enduring mood and brain function changes. Reportedly, these lasting effects 'promote cell survival, [are] neuroprotective, and modulate neuroimmune systems of the brain'. 19 Whereas the primary effects wear off within hours, there are physical and mental secondary effects which endure in the long term. These effects appear beneficial, with no reported negative effects days to months after use. 20 There are considered risks involved with psychedelic use. General acute side-effects to psychedelics include 'pupillary dilation, nausea, vomiting, tremor, hyperreflexia, dizziness, and ataxia', coldness, diarrhoea, fatigue, and agitation/restlessness. 21 A rare side-effect is hallucinogen-persisting perception disordercharacterised by 13  flashbacks, perception distortions, and visual disturbancesalthough its prevalence is 'generally considered low'. 22 The most common risk is that of a dysphoric experience, otherwise referred to as a 'bad trip' -'an anxious, dysphoric, confusing, and, less commonly, delusional acute reaction'. 23 This reaction is what was, and still is, considered the dark side of psychedelics. A dysphoric experience occurs predominantly when psychedelics are administered in an environment not conducive to the user's safety, or where the individual is unsupervised and/or importantly, unable to critically interpret the experience correctly. 24 Understanding the importance of 'set' and 'setting' in psychedelic use is fundamental. 25 Set refers to the mindset or mental state of the individual at the time of, and during, the psychedelic experience, and setting donates to the environment in which the individual is inbe it recreational, sacramental, or clinical, for example. Regarding set, individuals who have '[n]euroticism [ … ] a propensity towards negative emotionality and [are] poor [at] coping with stress' are more inclined to experience a bad or challenging psychoactive experience. 26 Accordingly, those who lack positive coping mechanisms and have a negative inclination to the experience or their current state of mind, are more likely to have a negative experience.
The setting in which psychedelics are used will also effect the experience. Calming and familiar environmentwhether recreational, sacred, or clinical settinggreatly reduce the likelihood of a dysphoric experience, whereas overstimulating, anxietyinducing environment increase the likelihood thereof. Research on a large group study of individuals in non-clinical settings, concluded that 'a "recreation [al]" intention for the psychedelic experience was associated with a lower likelihood of having a challenging experience' or bad trip. 27 Arguably, being in a familial recreational setting allows for a positive and open-minded expectation of the experience. Accordingly, it would appear that a strong predictor of psychedelic-associated risks remains set and setting.
However, potential risks remain likely for those who engage in reckless psychedelic use without sufficient guidance or understanding. During a dysphoric experience, individuals may pose a risk of harm to themselves and potentially others, should they act irresponsibly or aggressively. Furthermore, individuals who are at risk of psychotic disorders and vulnerabilities may exacerbate their susceptibilities, albeit research suggests the likelihood of such is very low. 28 Additionally, there remains possible risks when administering other substances with psychedelics, such as alcohol or serotonergic drugs. 29 Moreover, in the aforementioned large group study, researchers concluded that a 'challenging experience seemed to have a negative influence on well-being scores', indicating potential lasting negative effects. 30 Lastly, a study on individuals who had dysphoric experiences reported that 11 per cent caused risk of physical harm to themselves or others, 2.6 per cent behaved physically aggressive or violently, and 2.7 per cent required medical intervention. Three cases of the almost 2000 respondents admitting attempting suicide, with three reporting enduring psychotic symptoms. However, despite this study focussing on bad trips, '84 per cent of respondents reported having benefitted from the experience'. 31 It would appear that psychedelic substances are 'generally considered physiologically safe and do not lead to dependence or addiction'. 32 This sentiment is supported by research which found that a single 10 mg or 25 mg dose of psilocybin, given to healthy subjects, elicited no significant adverse events and resulted in no short-or long-term effects deemed clinically relevant. 33 However, the caveat remains that further research ought to be encouraged to formulate a greater understanding of the potential risks of different types of psychedelics.

History and modern context
Imperative here is to deduce the legal reasoning and context that led to the criminalisation of psilocybin mushrooms and their psychedelic cousins. Psychedelics have long been associated with the 1960s counterculturean era when young adults in the Western world, notably the United States of America, were protesting against civil injustices and the Vietnam War. A prominent protagonist of the counterculture was Timothy Leary. His radical rhetoric, advocating for psychedelic use, garnered him the title of 'the most dangerous man in America' from then US President Richard Nixon. 34 The growing anti-war agenda and hippie counterculture movement, coupled with the increasing publicity of the 'dark side of psychedelics', 35 led Nixon to combat . 35 Pollan (note 10 above) 3; due to their growing publicity and recreational use, many people were having negative psychedelic experiences. When used in an unsafe environment not conducive to a meaningful experience, the likelihood of a negative psychedelic experience is increased. Used incorrectly, psychedelics can lead to unwanted experiences or place the user at risk due to their intoxication.
the movement by setting into motion a hastened demonisation and criminalisation of, inter alia, psychedelicsbringing into legal effect the war on drugs. Subsequently, the Convention on Psychotropic Substances of 1971 (CPS) was adopted. 36 South Africa assented to the CPS in 1972, and in 1976 the CPS entered into force. 37 The CPS lists psychedelics as schedule 1 (most restricted) substancessubstances which posed a serious public health risk and have unknown or no therapeutic valuealongside THC, 38 and amphetamine-type stimulants. 39 The CPS required state parties to enact domestic legislation which treated any conduct contrary to the obligations of the CPS as a serious, 'punishable offence', enforcing that offenders be 'liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty'. 40 Instead of being premised on scientific assessments of the possible harms of psychedelics, Nixon's anti-psychedelic agenda was rather a 'political assault designed to help Nixon win, and keep, the White House'. 41 As former US domestic policy chief John Ehrlichman disclosed in 1994: The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people [ … ] We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana [and psychedelics] and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. 42 Clearly, there is compelling evidence to suggest that the catalyst for the wide-spread criminalisation of psychedelic substances was a political agenda, informed by prejudicial and questionable beliefs, rather than scientific evidence regarding the dangers associated with the substances.
Despite this, many states and societies continue to perceive psychedelics (and many other drugs) in a negative light, upholding the status quo initiated by Nixon's presidency that these substances are harmful, dangerous, addictive, and have no therapeutic benefit. Although drug laws may have been reassessed over the decades, arguably these reassessments have inherently been influenced by the sentiment of the worldwide criminalisation, rather than scientific research. This opinion is seemingly justified by the many academic and clinical studies which were disapproved of and not conducted over these decades, and by the lack of worldwide developments in decriminalising psychedelics. For example, a 1985 article noted morality as a justification for the sanctions on psychedelic substances, further noting that users were perceived by the public as being linked to moral degeneracy, mental illness, and criminal behaviour. 43 It is, therefore, apropos to state that 'it is the modern stigma attached to drugsnot any inherent quality of the chemicalsthat makes their use shocking'. 44 As such, it seems evident that the criminalisation of psychedelics is based largely upon moral and political beliefs, rather than on the harms they may pose to individuals and society.

The criminalising legislation in South Africa
As determined by international law, and consequently similarly in other jurisdictions, 45 plants/fungi with psychedelic properties are not, themselves, criminalisedrather only the 'chemical substances which constitute the active principles contained in them'. 46 In effect, this places a ban on the natural substance itself. Following South Africa's accession of the CPS, the laws which domestically criminalise psychedelics, inter alia, psilocybin, are the Drugs Act and the Medicines Act.
The Drugs Act was enacted in order to 'bring South Africa into line with international drug norms', 47 like the CPS. As per s 4(b) and s 5 the Drugs Act, the use, possession, and dealing in of psilocybin is illegal, when read with Part III of Schedule 2 of the Drugs Act. Part III of Schedule 2 lists psilocybin as an undesirable dependence-producing substance. The cultivation of psilocybin-containing mushrooms is deemed sufficient to constitute 'dealing in'. 48 The Drugs Act makes no exception for private use, possession, and/or cultivation of psilocybin-containing mushrooms by an adult. In accordance with the Medicines Act, the acquisition, use, possession, manufacturing or supplying of psilocybin mushrooms is prohibited; however, the Director-General may authorise the use of such for the 'purposes of education, analysis or research'. 49 Accordingly, there is no ground upon which the recreational, medical, or sacramental use of psilocybin mushrooms may be allowed.
Both the Drugs Act and the Medicines Act are in force and fully effective. However, an assessment must be undertaken to determine if these Acts are indeed constitutional. Although there may be scope to challenge the constitutionality of both Acts on multiple grounds, 50 this article will solely focus on challenging their validity based on s 12 of the Constitution.

The influence of state paternalism on the prohibition of psilocybin
It is prudent to consider the paternalistic nature of the criminalisation of psilocybin mushrooms, considering this article will discuss the rights of individuals to have full control and freedom with regard to their body and mind. Hence, it is necessary to understand how the prohibition of psilocybin mushrooms is paternalisticthat is, it is a manner through which the state can justify stopping individuals from acting 43 47 Prince v The President of the Law Society of the Cape of Good Hope 1998 JDR 0368 (C) 15. 48 Section 1(1) of the Drugs Act. 49 Section 22A(9)(a)(i) read with Schedule 7 of the Medicines Act. 50 Potential challenges could be raised on the grounds of, inter alia, s 9, 10, 14, 15, 16, 18, and 31 of the Constitution.
a certain way, on the basis that it is for their own good, on the assumption that the state knows best. Paternalism, as a legal doctrine, allows for the reduction of an adult's ability to act with free volition. When a state acts in a paternalistic manner to justify decisionmaking, it limits competent adults' autonomy to act freely, creating an assumption that they are unable to make rational and mature decisions for, and regarding, themselves. Joel Feinberg, in discussing the theory of paternalism, argues that the 'fully voluntary choice or consent of a mature and rational human being concerning matters that affect only his own interests is such a precious thing that no one else (and certainly not the state) has a right to interfere with it simply for the person's "own good"'. 51 As such, paternalistic governmental decision-making is arguably an encroachment on the rights of adults to the full exercising of their freedom rights. It is argued that this encroachment is a limitation of constitutional rights, and therefore, can only be limited justifiably.
Justifying a limitation in terms of paternalistic beliefs alone should never be acceptable. Where the state, through regulation or criminalisation, limits rights on the basis of mere paternalismnot paternalism paired with a more reasonable cause such a limitation can never be justifiable and should not be legally acceptable. The state's duty is not to parent its citizens, rather, it should encourage and protect the exercising of freedom rights.
Through paternalism, the state acts as a parental figure for all citizens, regardless of majority. When adults are '[de]prived of the right to choose for themselves, they will soon lose the power of rational judgment and decision'. 52 This is certainly not an outcome desired within the South African constitutional dispensation, especially in light of the restrictions on freedoms experienced in South African's recent history, where many were 'victims of processes of historical silencing'. 53 As such, criminalisation on the basis of mere paternalism is undesirablethe state should not be an overbearing, rigid parental figure, and adults should be empowered to assume risk.
However, although it would be invalid for the state to outright criminalise psychedelics on paternalistic bases, paternalism may be useful in the regulatory process. It is agreed that necessary limitations are desirable, such as those applicable to, inter alia, alcohol and nicotine. Paternalism would be justifiable in restricting a citizen's volition to, for example, drive under the influence or take the substances in certain environments. 54

Section 12 of the Constitution
The rights secured in s 12 of the Constitution is the right to freedom and security of the person and the right to bodily and psychological integrity. 55  offers examples of what the right protects, but this list is not a numerus claususevident through the term 'includes'. The focus here is to determine if s 12(2) offers persons the right to cognitive liberty and by extension the right to use psilocybin mushrooms to achieve this outcome.
In the Interim Constitution, the right to freedom and security of the person was formulated differently, 56 with the right to personal autonomy being secured within s 11(1). 57 The Interim Constitution protected the right to freedom and security of the person, which included the right not to be detained without trial, and protections against torture and degrading treatment. Despite this, the legislature deemed it vital to extend the ambit of the right. The Constitution extended this right to add protection against arbitrary deprivation of freedom, as well as providing everyone with the right to bodily and psychological integrity. This deliberate extension of the right clarifies that the Constitution specifically protects everyone's right to integrity in both the psychical and metaphysical senseboth the flesh and the mindas will be elucidated upon.
It is important to understand the use of the terminology in s 12. Integrity, in the legal context, is used to denote notions of 'self-determination and autonomy'the right to the control over one's body, and arguably, one's mind. 58 Bodily integritycommonly referred to as corpusis the freedom of self-determination for a person to do with their body what they want, free from 'significant, non-consensual interference'. 59 It is the freedom to make decisions about one's own body, free from unwanted manipulation. The right to bodily integrity, therefore, protects one's ability to make autonomous determinations regarding one's body. The right enforces the practicality that 'every person's body is inviolate'. 60 In the case of R v The Parole Board, 61 the court stated that the right to bodily integrity has always been regarded as the 'most important of civic rights' in English common law. In In re A (Children) (Conjoined Twins: Surgical Separation), 62 the court concluded that the bodily integrity right was 'the right to have one's own body whole and intact and (on reaching an age of understanding) to take decisions about (1) Everyone has the right to freedom and security of the person, which includes the right-(a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and psychological integrity, which includes the right-(a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent. 56 Constitution of the Republic of South Africa, Act 200 of 1993 (Interim Constitution). The Interim Constitution has been repealed. Section 11 reads: '(1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.
(2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment'. 57  one's own body'. Therefore, it is clear that the right to bodily integrity protects an individual's physical matter and their autonomy to do with it what they freely decide. The importance of the inclusion of a right to psychological integrity cannot be understated. Where bodily integrity has always garnered protection and respect throughout legal historyeven in cases of mere touching and/or causing of fleeting painthe equal protection of psychological integrity is often legally overlooked. 63 As Hoexter JA stated in Minister of Justice v Hofmeyr: One of an individual's absolute rights of personality is his right to bodily integrity. The interest concerned is sometimes described as being one in corpus, but it has several facets. It embraces not merely the right of protection against direct or indirect physical aggression or the right against false imprisonment. It comprehends also a mental element. 64 Accordingly, the inclusion of the right to psychological integrity is a vital step towards the equal protection and privileging of an individual's psychology.
By proxy of bodily integrity, psychological integrityand the right theretois the freedom of an individual's psychological self-determination and the right to be protected from 'nonconsensual interference with [an individual's] mind'. 65 In other words, the right protects the inviolability of the mind. Each individual has a right to their '[m]ental states, thoughts, feelings [and] behavioural dispositions', 66 and to have these sanctities of the mind protected and not abused, manipulated, or infringed upon. This often overlooked right, is arguably an invaluable fundamental right of all human beings.
Philosophically, if an individual finds their mindas well as their bodyunfettered from external (non-consensual) influence, what state do they find themselves in? Arguably, one of personal authenticity. Without external psychological influences, be it through chemical or active influences on the brain or pressures from peers and society, an individual will be left completely in the hands of their own natural inclinations and actualisations: they would be 'getting through the pseudo-self to the Real Self'. 67 Although the reality of this state of personal purity is not necessarily realistic as all individuals are influenced by their natural surroundings dailynonetheless, there is a human desire to achieve this state.
The law, at the very least, should prevent unjustifiable limitations on an individual's exploration of their 'Real Self'. As the right allows for the protection against unwanted mental persuasions and influences, it is argued that the right to psychological (and bodily) integrity can be viewed as the right to enable one to be 'true to oneself' in both body and minda state of authenticity or self-actualisation. 68 This must, however, carry with it a caveat. Individuals will always be influenced by external pressures that may have a preventative effect on self-actualisation. Like bodily integritywhere an innocent foreign touch of an individual's body does constitute a breach of the rightthe right to psychological integrity must be handicapped by the de minimus non curat lex maxim, ensuring that exposure to advertisements or social engagements do not constitute infringements worthy of legal intervention. Individual authenticity allows for persons to experience life in the highest, healthiest, and most meaningful way. Ideally, it is a reality that all of society should strive to achieve. Bevae Svenson identifies psychological integrity as a presupposition of psychological identityarguing that it is psychological integrity 'which gives man the possibility of experiencing "life itself"'. 69 In striving for authenticity, individuals find meaning and purpose in their existencethe 'central task' of self-actualisation. 70 There are dangers in resisting authenticity. Abraham Maslow claims that 'a person who gives in eagerly to the distorting forces' of culture 'may occasionally be less healthy than a [person who] … has spunk enough left to resist the breaking of his psychological bones'. 71 The importance of leading an authentic life cannot be understated -'authenticity is a fundamental aspect of individuals' well-being'. 72 Resisting such may endanger an individual to be 'perceived as a fake', 73 leading to issues in confidence, self-esteem and social standing.
It is, ultimately, fair to deduce that an individual's right to pursue their authentic self should be protected in law and further encouraged. This argument is echoed by Maslow, who states that 'perhaps it should be at least one function of education, law, religion, etc., to safe-guard, foster, and encourage the expression of the [basic] needs for safety, for love, for self-esteem, for self-actualisation'. 74 It is, therefore, safe to argue that the Constitution should recognise the right to psychological and bodily integrity as a fundamental right which safe-guards, fosters and encourages an individual's pursuit of authenticity.
The right to bodily integrity offers more than protection against non-consensual bodily infringementsit empowers individuals to do with their body what they will, regardless of potential hurt or harm. Arguably, the understanding of the freedom of this right is synonymous with the notion of freedom put forward by Ackermann J in Ferreira v Levin; Vryenhoek v Powell. 75 In Ferreira, Ackermann J understood the right to freedom (in relation to the right to freedom and security of the person) as the 'right of individuals not to have "obstacles to possible choices and activities" placed in their way by [ … ] the State'. Although Ackermann J's understanding of freedom as it pertains to the right in s 12(1) of the Constitution was the minority in Ferreira, 76 it is argued that this proposition should find force and favour with the s 12(2) rights. The right to psychological integrity, therefore, should protect against both the non-consensual 'trespass upon and violation of [an individual's] right to mental and intellectual wellbeing', 77 and exploration of their most authentic self. The right to psychological integrity includes 'positive entitlements' that materialise as a 'freedom to self-determine one's inner realm, e.g., the content of one's thoughts, consciousness or any other mental phenomena'. 78 In conclusion, it seems apparent that the rights to both bodily and psychological integrity, as found in s 12(2) of the Constitution, are, in effect, a right to bodily and psychological authenticity. Both of these rights protect psychological authenticity but, fundamentally, also the right to explore the authentic self. Therefore, in the same way as an individual has the right not to be branded, but has the right to tattoo themselves, an individual also has the right to not have their psychology invaded by unwanted interference, but has the right to pursue the exploration of their own psychology, as they deem fit.

Understanding cognitive liberty
The mind is a unique mystery which gives every human an unmeasurable amount of potential, capacity, and individuality. To each individual, their mind is the core to their beingit should be the most protected aspect of existence. This sentiment was echoed by the dissenting judgment of Murphy J in the United States of America case of Jones v City of Opelika: 'the most tyrannical government is powerless to control the inward workings of the mind'. 79 It is cognitive liberty that advocates for the legal protection of rights needed for the full utility of the human mind. The notion is closely linkedarguably synonymouswith psychological integrity; however, it differs in a fundamental manner: cognitive liberty requires that individuals be free and legally entitled to positively control their cognition. Where psychological integrity simply protects an individual's right to their own, unfettered psychology, cognitive liberty goes further to argue that individual should have the right to determine what does and does not affect their mind. As Nita Farahany cogently explains: '[c]ognitive liberty secures authority to individuals over actions essential to their self-determination'. 80 Cognitive liberty does not simply protect an individual's consciousness, but advocates for the right of that individual to be able to determine how to utilise, alter, or direct their consciousness. It is the total unchaining of the most essential freedomthe right to self-determination and control over one's consciousness. As Richard Boire elaborates: The right to control one's own consciousness is the quintessence of freedom. If freedom is to mean anything, it must mean that each person has an inviolable right to think for 77 Ferreira (note 75 above) para 146. 78 Bublitz & Merkel (note 63 above) 60, emphasis added. 79 Jones v City of Opelika 319 U.S. 103 (1943)  him or herself. It must mean, at a minimum, that each person is free to direct one's own consciousness; one's own underlying mental processes, and one's beliefs, opinions, and worldview. This is self-evident and axiomatic. 81 Today, many stigmatised drugslike cocaine and opiateswere 'common among upright citizens in America and elsewhere in [ … ] the nineteenth century'. 82 Arguably, through criminalisation, society's view on drugs has become ingrained: these substances are believed to be toxic, linked with notions of 'secretiveness, dishonesty, stealing and irresponsibility'. 83 Although somewhat true, these beliefs are linked to, and encouraged by, the criminal sanctions attached to these substancesdecisions influenced by political and legislative measures based on rationale which is not always truly accurate. However, through objective and in-depth assessment, valid reasons can be found for justifying a challenge on such ingrained beliefsthe likes of which have been seen before. 84 To conclude, cognitive liberty is best defined as 'the right to choose one's own cognitive processes, to select how one will think, to recognise that the right to control thinking processes is the right of each individual person'. 85 It is, quintessentially, a freedom of the mind and the right to explore one's consciousness without restraint the entitlement to 'make free and competent decisions with respect to' that which affects thoughts and consciousness. 86 It is an open and accepted standard that everyone has the unfettered right to control their bodily processesand any non-consensual invasion of a person's bodily autonomy may amount to an infringement of a human right. Cognitive liberty simply applies the same privileges awarded the body to the mind.

How the Constitution provides for cognitive liberty
Arguably, cognitive liberty is evidently interlinked with the right to psychological integrity, as afforded by s 12(2) of the Constitution. Interpreted widely, the right to psychological integrity essentially provides for cognitive liberty, insofar as it allows individuals control over their consciousness. Cognitive liberty provides a foundation to many fundamental human rightshuman dignity, psychological integrity, privacy, belief and opinion, and expression. 87 Accepting cognitive liberty as a right worthy of protection and enforcement under s 12(2) of the Constitution, would be congruent with a constitutional context that allows for the enforcement of these related rights.
Section 12(2) of the Constitution allows for additional manifestations of the right through the use of the word 'includes'. 88 However, it is further proposed that the right to cognitive liberty may already be inferred from the provisions in s 12(2)(b) of the Constitution -'to security in and control over their body'.
The issue here is to deduce if the mind/psychology/conscious may be included in a reasonable interpretation of body. Narrowly interpreted, body may be said to only amount to the physical flesh of a human being. However, this section was never intended for narrow interpretation, as was noted by Liora Lazarus: '[s 12(2)(b)] is probably the most extensively defined autonomous, express and justiciable right to security in any constitutional document around the world'. 89 Due regard must be given to the context of the word body, which in this case falls under the sub-heading of the right to bodily and psychological integrity. Taking this context into account, therefore, the interpretation of body in s 12(2)(b), seems to be inclusive of the mind. To provide a right to security in and control over only one's physical body would undermine the purpose of s 12(2), which evidently protects the psychological, too.
Accordingly, it is submitted that the constitutional interpretation of s 12(2)(b) should be that everyone has the right to security in and control over their body and mind. In Natal Joint Municipal Pension Fund v Endumeni Municipality, the Supreme Court of Appeal established the new approach to statutory interpretation. 90 The Endumeni approach is centred on a holistic interpretation of the meaning of the language used, within its presented context, taking into consideration the background information of the clause. This differs from the old approacha stepped assessment that placed more weight on the meaning of the language used, with proportionately less weight on the other consideration. In following the new approach, a holistic interpretation of s 12(2) ought to allow for the inclusion of and mind, so not to deprive individuals of the right to security in and control over their mind.
Despite the presence of academic debate, it is propositioned that the Endumeni approach is constitutionally viable, in accordance with s 39(1)(a) of the Constitution, empowering an interpretation premised on the fundamental values of 'an open and democratic society based human dignity, equality and freedom'. Accordingly, the proposed interpretation of s 12(2) ought to comply with the Constitution, insofar as an interpretation which excludes protection of the mind would fail to promote the values of an open and democratic society. As Khampepe J fittingly remarks: [The Constitutional Court] has adopted a purposive and contextual approach to interpreting the Constitution. In doing so, we are enjoined to provide a broad and generous reading in determining the ambit of constitutionally enshrined rights. Because of the inclusion of the limitation clause in s 36, rights should not be interpreted in a miserly fashion. It is, therefore, apparent that recognising and protecting the right to security in and control over one's mind is congruent with the theory of cognitive liberty. It has been found that the Constitution does provide for cognitive liberty through s 12(2). This is found either as an additional manifestation of the right to psychological integrity, or in terms of a holistic interpretation of s 12(2)(b).

The issue of AB v Minister of Social Development
A possible concern for this section's proposed argument is the judgment in AB v Minister of Social Development, specifically regarding how the criminalisation of the consumption of psilocybin mushrooms may infringe one's s 12(2) rights. This matter addressed the constitutionality of s 294 of the Children's Act 35 of 2005, which prohibited single parents from concluding a surrogacy agreement where they were unable to produce their own gamete. Of interest is the court's different approaches to interpreting the right to bodily and psychological integrity.
The AB majority argued that s 12(2) had to be interpreted in line with its origins 11 of the Interim Constitutionwhich held that the 'primary purpose of the right was to "ensure that the physical integrity of every person was protected"'. 92 The majority reasoned that bodily and psychological integrity have historically been 'inextricably linked' and, therefore, 'any limitation of autonomy [ … ] is only an infringement of s 12(2)(a) if it invokes both psychological integrity and bodily integrity; and not if it only impacts upon psychological integrity'. 93 Accordingly, the majority interpreted s 12(2) to be a continuation of s 12(1), concluding that one's bodily and psychological integrity must be infringed for a violation in terms of s 12(2) to occur.
The minority disagreed, arguing that s 12(2) 'provides for a new, freestanding and definitionally-proscribed freedom right'. 94 In justifying this, Khampepe J notes that the Bill of Rights should be interpreted broadly, explaining that rights remain subject to the scrutiny of the limitations clause. To interpret rights narrowly would, accordingly, be restricting and unreasonable. 95 In separating s 12(1) and (2), the minority develops 'a new understanding of "freedom and security of the person" that demonstrates respect and attentiveness to the decisions of others. The inclusion of s 12(2) is one facet of this new approach'. 96 In relation to my arguments, the majority's reading would allow for legislation to limit psychological integrity where bodily integrity is not violated. In line with this, it may be argued that banning the consumption of psilocybin is not an infringement of one's bodily integrity. It shall, however, be argued that the majority's interpretation of 92 Ibid para 309, emphasis added. 93 B Shozi 'Something old, something new: Applying reproductive rights to new reproductive technologies in South Africa' (2020) 36 South African Journal on Human Rights 1, 9-10, emphasis added. 94 AB (note 91 above) para 59. 95 Ibid para 62. 96 Ibid para 67. s 12(2) is lacking, in regard to their original interpretation and the possible implications it may have on the consumption of psilocybin.
First, as Bonginkosi Shozi elaborates, the 'plain reading of the text of s 12(2) necessitates that we view bodily and psychological integrity as two separate concepts, each applicable to subsections (a), (b) and (c) in their own right'. 97 This way of reading is in line with the Constitution. Take s 27(1)(b) of the Constitution for example, which states that everyone has the right to have access to sufficient food and water. Through the majority's reading, legislation enacted to provide access to sufficient food only, would violate this right, insofar as it neglects to address access to sufficient water, too. This cannot be the casethe correct reading must be that everyone must have sufficient access to both food and water, as separate concepts.
Second, the majority erred in leaving judgment open on whether s 12(2)(a) alone would be restricted to bodily harm, whereas s 12(2)(c) would not. 98 This anomaly places doubt in the strength of their argument, as there is nothing in the section to indicate a separation of treatment between (a), (b), and (c). Furthermore, this judgment fails to understand the true purpose of s 11 of the Interim Constitution, neglects to appreciate the difference between s 12 and its predecessor, and takes an archaic view to reproduction being limited to the body. 99 Finally, to their rejection of the autonomy of psychological integrity, the majority seemingly failed to recognise the well-observed protection of psychological integrity found within the state's law of delict. As Khampepe draws from NM v Smith, 100 there is protection afforded to the 'harm that emerges from the psychological stress caused by the removal of the applicants' choice'. 101 As has been shown, it cannot be that psychological integrity is relegated below that of bodily integritysuch an understanding cannot be constitutional.
However, the majority's judgmentshould it be the correct interpretation of s 12(2)may not be detrimental to my arguments with regard to s 12(2)(b). In this instance, it appears that s 12(2)(a) does not extend to an individual who wishes to exercise this right using the body of another. Currently, the law prohibits individuals from consuming psilocybin mushrooms. This would appear to be a prohibition on one's choice relating to their own bodythat being the right to choose what to consume. According to the AB majority, this would still amount to an infringement on one's bodily integrity, and the choice and control they have over their body. 102 Consequently, the minority's interpretation is preferred, and would allow for the detachment of psychological integrity from bodily integrity. This would allow for a irect attack on legislation which violated psychological integrityor cognitive liberty as arguedbut not bodily integrity. However, in keeping with the majority of AB, it has also been propositioned that prohibiting what one may consume may be 97 Shozi (note 93 above) 10. 98 AB (note 91 above) para 76, read with judgment's footnote 74. 99 Shozi (note 93 above) 11-12. 100 NM v Smith 2007 (5) SA 250 (CC) para 40. 101 AB (note 91 above) para 69, emphasis added. 102 Ibid paras 312-315. a limitation of bodily integrity and would be susceptible to a limitation of rights analysis, too.

Cognitive liberty in the Constitution
It would be simple to apply inductive reasoning and find that, as in Prince, psilocybin mushrooms should be decriminalised based on the right to privacy. 103 However, the arguments put forward in this article seek to introduce the legitimacy of the right to cognitive liberty to South African legal academia, as established in terms of s 12(2) of the Constitution. It is hoped that the recognition of the right to cognitive liberty may provide a basis upon which future claims may be brought by adult citizens who wish to explore their cognitive liberty unimpeded by legislation.
As Boire appropriately affirms, 'cognitive freedom is so self-evidently a basic human right', 104 one which the Constitution provides for. It has been argued that cognitive liberty is an independent extension to s 12(2); alternatively, that cognitive liberty is included in s 12(2)(b), through the constitutional interpretation of the section to include the mind as an extension of the body. Regardless of the avenue, there are persuasive arguments to be made that the Constitution provides for the freedoms and protection associated with the theory of cognitive liberty.
The right to cognitive liberty provides, inter alia, that everyone be afforded security in and control over their own minds. Consequently, as per the theory of cognitive liberty, individuals have the constitutionally protected right to explore their mind as they deem fit. Psychedelics are considered to be a 'powerful tool for self-discovery and understanding consciousness', 105 and should be available for individuals to utilise in the exercising of their own cognitive liberty, insofar as these benefits outweigh the potential risks psilocybin may have on the user and those around them.
It follows that the criminalisation of psychedelic substances such as psilocybin mushrooms is a prima facie infringement upon the right of s 12(2) of the Constitution. Of course, the acceptance of this theory and its right would be susceptible to limitation; however, only if it is constitutionally justified in terms of s 36 of the Constitution. 106

Limitation of rights analysis
Having concluded that the Constitution provides for cognitive liberty and that the criminalisation of psilocybin mushrooms constitutes a prima facie infringement thereof, it must now be shown that the nature and importance of the right to cognitive liberty, as found in s 12(2) of the Constitution, weighs heavier than the importance and purpose of the limitationthe criminalisation of psilocybin mushrooms as per the criminalising sections in Drugs Act and Medicines Actboth of which are laws of general application. Section 36(1) of the Constitution provides: 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.
Having accepted that the criminalising legislations are laws of general application, it must be determined whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, freedom, and equality. A s 36 analysis, therefore, requires a proportionality or balancing exercise. 107 Lastly, having proved an infringement, the burden of justification would fall upon the state. 108 6.1 The nature and importance of the right to cognitive liberty 6.1.1 The nature of the right limited The right to cognitive liberty falls under the right to freedom and security of the person, specifically the right to bodily and psychological integrity. This right is afforded to everyone. The right contains no internal qualifiers, making it only limitable through a s 36 limitation. Furthermore, the nature of cognitive libertybeing the right to control over one's own consciousnessis intrinsically linked to other fundamental rights.

The importance of the right limited
The right to cognitive liberty is unquestionably important, premised upon the freedom and control of an individual's mind. As Farahany articulates, 'cognitive liberty is the interest upon which many of our most cherished freedoms are secured', it 'encompasses freedom of thought and rumination, the right to self-access and selfalteration, and to consent to or refuse changes to our brains and our mental experiences'. 109 Intrinsically linked to psychological integrity, the right provides everyone the opportunity to exercise their mental freedoms.
Furthermore, in an open and democratic society, the right to psychological freedomfreedom of thought, self-determination, mental autonomyis arguably 'so self-evident that its codification is meaningless'. 110 Without the adequate recognition, protection, and participation in the right, members of society will render themselves uninquisitive followers, forever maintaining the status quo, for good or for bad, better or for worse. This is not the manner in which society animates transformation.
South Africa's Constitutionin necessitating effective transformationdemands public participation, 111 by ensuring that 'South Africa's democracy contains both representative and participatory elements. These elements are not mutually exclusive. Rather they support and buttress one another'. 112 As Sachs J stated in Doctors for Life International v Speaker of the National Assembly, '[p]ublic involvement accordingly strengthens rather than undermines formal democracy, by responding to and negating some of its functional deficits'. 113 Therefore, to give maximum effect to the transformative ideals of the Constitution, society must be allowed full utility of the right to cognitive liberty. Any limitation of an individual's freedom of mind limits their capacity to engage critically, handicapping societal transformation. Evidently, the right to cognitive liberty is important in light of the Constitution.

The importance and purpose of the criminalisation of psilocybin mushrooms
Both the Drugs Act and the Medicines Act prohibit the use, possession, and cultivation of psilocybin mushrooms. This prohibition is deemed an important mechanism in adequately preventing and deterring persons from taking a potentially dangerous substance. As psilocybin is listed as an undesirable dependence-producing substance in both the Drugs Act and the Medicines Act, this prohibition is considered logical. The purpose of the criminalisation is to conform to international law drug standards and to punish offenders for the harm which they may cause themselves or society, in using, cultivating, and/or supplying psilocybin mushrooms.
As was stated in Prince v President, Cape Law Society, 114 the purpose of the limitation is based in state 'control' over the use, consumption, and dealing in, of a dependence-producing substance, in order to adhere to international legal obligations. I have assessed the justifiability of the international legal obligations which are protected by the limiting statutory provisions. However, it has been determined that the genesis of the criminalisation of psychedelic substances, although replete with concerns and cautions, appears to have been underpinned by a political agendathe effect of which was to limit research relating to, and consumption of, psychedelic substances.
Nevertheless, the properties of the limitation must be assessed. To do so, empirical data must play a rolesentiment which the AB majority challengedstating 'courts do not rely on the opinions or "credible data" by experts when determining the constitutionality of legislation'. 115 This cannot be the case in instances where the legitimate purpose of the legislation is being attacked. As Donrich Thaldar argues, 'purposive construction [of an impugned provision] in abstract isolationuninformed by credible real-world datacannot provide an answer to the constitutional question of rationality'that being whether the impugned provision does, in actuality, serve the intended legitimate governmental purpose. 116 Accordingly, in determining whether the criminalisation of psilocybin mushrooms serves its governmental purpose of controlling the use, consumption, and dealing in, of a dependenceproducing substance, empirical data ought to be considered.
Accordingly, the preventative influence in play is that of the potential harm caused by psilocybin mushrooms. The state's intention is that of preventing citizens from unwanted drug-related harms, such as addiction, mental illness, and/or misuse. To date, psilocybin mushrooms have limited evidence of being a toxic, poisonous, or 'dependence-producing' substance. Instead, the toxicity of psilocybin is considerably low, rarely leads to psychotic symptoms, and no lethal overdose is known. 117 In a South African study on drug-use fatalities, '[n]o positive results were reported in respect of [ … ] psilocybin'indicative of psilocybin not being a deadly substance. 118 Furthermore, evidence suggests that use of hallucinogens, such as psilocybin mushrooms, 'virtually never leads to the development of classic dependence syndromes', and users 'do not experience withdrawal symptoms'. 119 On the contrary: research has shown that psilocybin mushrooms may instead elicit 'antidepressant and anti-addictive effects', 120 with evidence showing that the substance enjoys high rates of success in dealing with addiction. 121 Furthermore, with regard to mental health issues, psilocybin mushrooms, again, show promise as a medicinal aid, rather than a cause. David Nutt remarks that a 'single psychedelic experience could produce profound and enduring mental health benefits' in patients suffering from anxiety, depression, and existential distress. 122 Nutt further states that it is 'the safety and ease of practical use of psilocybin that has led to it being resurrected in a series of psychological, psychopharmacological, imaging, and small pilot clinical studies'. 123 As for the arguments regarding abuse/misuse, it is debatably hypocritical to criminalise psilocybin mushrooms out of fear of misuse, accepting that alcohol and tobacco are frequently abused, yet both substances remain legal. More so, the result of misuse of psilocybin mushroomsdysphoric experiencesis firmly due to set and setting, whereas alcohol and tobacco misuse is due to the person. 124 The importance of prevention, therefore, has limited rational connection to the purpose of the limitation, as research suggests that with responsible psilocybin mushroom useuse which is 'safely managed with safeguards in place'the risk of harm is largely mitigated, with the potential for benefit increased. 125 It would be short-sighted to outright disregard the potential for psilocybin mushroom misuse. There may be possible harms which are yet to be well documented outside of the research clinic. As such, although perhaps contradictory, there may be weight given to the state erring on the side of caution. With the importance of set and setting in psilocybin use not being fully understood and regularly communicated to the general public, it may be considered wise to regulate the substance until such time as research can offer clearer advice on safe psilocybin use. However, in making such a concession, there should also be a duty on the state to ease prohibitions so that further research can be conducted, and in time, a more accurate assessment of the potential unpredictable harms of psilocybin mushrooms can be made. The state should not act in a knee-jerk and paternalistic fashion, unquestioningly and unconditionally prohibiting psilocybin mushrooms outright without allowing for the opportunity and possibility of critical (re)assessment.
As it has been established that psilocybin mushrooms carry considerable benefits against limited-to-no harmboth to the individual and to societyit would be unjustifiable to punish the use, possession, and/or cultivation on the basis of retribution. However, it must be noted that, even should psilocybin mushrooms carry a risk of harm to the individual user, competent adults ought still to be allowed to assume the risks on the basis of volenti non fit injuriaconsenting to the risk of harm. For the state to limit competent adults' freedom to assume the risk of consuming psilocybin mushrooms and further punish them criminally for doing so, reduces adults to 'children' of the paternalistic state. 126 Arguably, this paternalistic attitude is an unsuitable approach in the current constitutional dispensationthe state should not be authorised to punish competent adults who consent to the risk of consuming psilocybin mushrooms.
As for deterrence, the current criminalising legislation has certainly deterred the use, possession, and cultivation of psilocybin mushrooms. The majority of citizens will not be exposed to psilocybin mushrooms, due to their criminalisation. These mushrooms have successfully been marginalised from general society, with those who wish to engage with psilocybin mushrooms having to source them through 'underground', illegal means. Furthermore, for better or for worse, their criminalisation has immensely reduced the academic research and media attention of psilocybin mushrooms, rendering the large majority of South African society deterred and disinterested. This, however, may change as psychedelics seem to be experiencing a 'modern renaissance'. 127 For individual deterrence, it is argued that the criminalising legislation has had success, except from deterring determined individuals. Their availability is such that even pensioners have access. 128 Ultimately, it can be conceded that the criminalising laws do have a deterrent effect. However, despite the evidentiary deterrence, it is contended that the state is required to present 'more' compelling evidence to justify that the prohibition has the deterrent effect desireda hurdle which may not be cleared with the current levels of deterrence. 129 What may be acceptable in this instance is a less restrictive regulation of psilocybin mushrooms. It is advised that the scheduling of the implicated psychedelic substances be reassessed. Re-categorising them as a lower scheduled substance would be more acceptable in this context. This would make academic research accessible, allowing for a more accurate and detailed understanding of psilocybin mushrooms. However, it remains prudent that regulations stay in place for minors and potentially at-risk individuals, while there remains limited research.

Justifiability assessment
The nature and extent of the limitation encroaches upon an individual's fundamental human rights implicated in the right to cognitive liberty. The limitation, put simply, is not justifiable in a democratic society based on human dignity, equality, and freedom. As regards drugs, the 'task of policymakers is to assess the relative risks of illegal drugs and compare those risks to others we takeor permit others to takewith hardly any qualms'. 130 This rational assessment is not undertaken by the legislature in its approach to controlled substancesevidenced by the legality of, for example, alcohol and tobacco. As Charlotte Walsh enlightens: the 'distinction between legal and illegal substances is not unequivocally based on pharmacology, economic or risk benefit analysis. It is also based in large part on historical and cultural precedents'. 131 Notably, the criminalisation of psilocybin mushrooms has long been based on a fallacy, rather than science and academic certainty. The continued criminalisation is 'hobbled by a host of systematic and psychologically stubborn biases of reason and emotion. And these biases persist even when there are no limits on the evidence made available to the decision-makers'. 132 The criminalisation is still heavily linked to reasons dissociated with the reality presented by scientific evidence. The war on drugs agenda remains an unpersuasive, yet persistent, justification to uphold the prohibition, despite the evidence suggesting that psilocybin mushrooms are not toxic and deadly to the user or society, but could rather be beneficial if utilised correctly.
In weighing up the nature and importance of the right to cognitive liberty against the importance and purpose of the limitation, it is evident that the infringement upon the right to cognitive liberty is not one which is justifiable in an open and democratic society based on human dignity, equality, and freedom. The continued belief that 'there can be little doubt about the importance of the limitation in the war on drugs', 133 can no longer hold the same weight it once did. As the renaissance of psychedelics develops, historical and current evidence of the benefits of psilocybin mushrooms continue to disprove the societal beliefs connected to the fungi. In addition, with an increased recognition and protection of the rights afforded in terms of s 12(2) of the Constitution, specifically the right to cognitive liberty allowing citizens to take active steps in how they exercise self-determination over their mind, it is premised that there is sufficient evidence to justify the weighing in favour of decriminalisation, with regulations.

Conclusion
Psilocybin mushrooms, alongside their psychedelic cousins, have co-existed with the human species for millennia. Our ancestors have dieted on them, worshipped them, learnt from them, and respected them. Over the past fifty-plus years, psilocybin mushrooms have been criminalised and ostracised by society. This decision has hindered further academic and scientific research into the plethora of potential health and wellbeing benefits associated with the fungus, as well as any potential harms. As politician Cori Bush stated upon introducing a health-centred approach drug reform and decriminalisation Bill: '[i]t's time to put wellness and compassion ahead of trauma and punishment'. 134 The theory of cognitive liberty was put forward as a constitutional basis upon which to challenge the criminalisation of psilocybin mushrooms. An understanding of psychedelic substances has been detailed, briefly showcasing the interconnected history they share with the human species, what they are, and the potential effects they have on the human brain. The international and domestic geneses of their criminalisation was addressed, providing clarity on important sections of the Drugs Act and Medicines Act, as well as elucidating upon the paternalistic presence associated with the prohibition of psychedelics in South Africa. Further, an assessment of s 12 of the Constitution was presented, explicating that s 12(2) provides for the right to bodily and psychological authenticitycatering for both the protection and exploration of one's bodily and psychological integrity. Notably, the theory of cognitive liberty has been explained, as well as how the right to cognitive liberty may be contained in, or found under, s 12(2) of the Constitution, through either a broad interpretation of s 12(2)(b), or via an additional manifestation of the right to psychological integrity.
Finally, having addressed concerns raised in AB, it was determined that the criminalisation of psilocybin mushrooms may infringe upon the right to cognitive liberty. Accordingly, a limitation of rights analysis was conducted to show how the nature and importance of the right to cognitive liberty weighs heavier than the importance and purpose of the limitation served by the criminalisation of psilocybin mushrooms.
South Africa criminalised psilocybin mushrooms on the basis of very little independent research and evaluation. In doing so, the state has failed to uphold its obligations in respect of the progressive rights afforded by s 12(2), which empower individuals with the right to security in and control over their minds. In the current constitutional dispensation, premised on a culture of justification, it is argued that the state, through the criminalisation of psilocybin mushrooms, has failed to adequately justify its decision-making and subsequent infringement of a fundamental right.