Rastafarian man loses challenge against dangerous drugs legislation in Bahamas

NASSAU, Bahamas, CMC – A judge in the Bahamas has dismissed a motion filed by a Rastafarian man who challenged the constitutionality of the Dangerous Drugs Act in prohibiting the possession and use of marijuana, even for religious purposes.

“I find nothing anti-democratic or anti-rights in Parliament's decision not to make allowances for the religious or recreational use of marijuana,” said Justice Lorein Klein.

The judge had to decide “whether the freedom to manifest one's religion, which is guaranteed by the Constitution, trumps the prerogative of Parliament to make laws prohibiting the possession and use of substances considered harmful in the public interest, but which certain groups consider essential to manifesting their religious beliefs”.

Klein said that the vast majority of many democratic states still maintain general prohibitions on the possession and use of marijuana.

“Further, even those states which have reduced restrictions on marijuana for medicinal or recreational use still exercise stringent controls, having regard, inter alia, to their international obligations under the various conventions,” he wrote in a long-awaited judgment.

On December 28, 2020, police arrested and charged Lorenzo Stubbs following a raid at his home where they seized 1.6 ounces of Indian Hemp, with a street value of US$60.

But, Stubbs, through his lawyer Bjorn Ferguson, argued that marijuana is a “sacred herb”, which is used as a sacrament in the Rastafarian faith.

He also argued that Stubbs had a constitutional right to possess marijuana, and since the Dangerous Drugs Act does not have an exemption for religious use, it was incompatible with his constitutional right to freedom of religion.

The lawyer relied on the 2018 CARICOM Regional Commission Report on Marijuana and the 2020 United Nations Commission on Narcotic Drugs to show that marijuana is not as harmful as once thought.

But, in rebuttal, the acting Director of Public Prosecution, Cordell Frazer, urged the court to accept that the Dangerous Drugs Act was a law enacted to promote public health and safety, and as a result, its provisions are reasonably required in the interest of public health.

The judge said while he accepted that the Rastafari faith is a belief system serious, cohesive and important enough to be protected by Article 22 of the Constitution, which guarantees freedom of religion, he also accepted the connection between using marijuana as a sacrament and the underlying belief system of the faith.

He said that some matters should be left for legislators to decide.

“In my view, to subject every law to a strict forensic analysis of what is reasonably required in the interest of public policy objectives or for the protection of the rights and freedoms of others would diminish and second-guess the prerogative of Parliament to make laws for the “peace, order and good government” of the State.

“This is not to say that the power to make laws, wide though it may be, is not subject to limitations, which are set by the constitution itself or which may be found in general principles of administrative law.”

Klein said the applicant failed to produce evidence showing how less repressive measures, as opposed to the blanket prohibition against marijuana use, would adequately protect the public's interest.

“For example, there is no evidence or other material before the court on any of the following matters: the nature and frequency of the religious ceremonies during which cannabis/marijuana is used; what quantities are required for sacramental use and who would control the dispensing; who would be eligible to use it; how the system would be administered to ensure that religious claims are not asserted as a pretext for the possession and use of marijuana for recreational or more nefarious purposes (including the drugs trade); and what mechanisms would be put in place for protecting adolescents or other vulnerable persons within the Rastafari community.”

The judge said that even if he had concluded that the blanket prohibition on marijuana was not justifiable and therefore a constitutional breach, “I would still have been constrained from making the declaration in the form pleaded by the applicant.

“This is because the declaration sought is that section 29(6) of the DDA, without more, is unconstitutional. As explained, that section enacts a blanket prohibition on the possession of marijuana.”

He said for the court to make such a declaration would be to judicially legalise the possession of marijuana by anyone, which the court has no jurisdiction to do on the application before it.

“The real complaint of the applicant is not against the general public prohibition, but only that such prohibition should contain an exemption for religious use,” said Klein, making no order for costs, citing precedent against awarding costs in constitutional challenges brought in good faith.

Follow The Gleaner on Twitter and Instagram @JamaicaGleaner and on Facebook @GleanerJamaica. Send us a message on WhatsApp at 1-876-499-0169 or email us at onlinefeedback@gleanerjm.com or editors@gleanerjm.com.