A Bahamian judge has dismissed a motion by a Rastafarian man, which contested the constitutionality of the Dangerous Drugs Act in relation to the possession and use of marijuana, inclusive of religious usage.
“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.
Constitutional rights versus public health concerns
The crux of the judgment revolved around determining “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”.
Justice Klein observed that most democratic nations still uphold broad prohibitions against the use and possession of marijuana.
He further noted that even those nations that have reduced restrictions on marijuana for medicinal or recreational purposes still implement stringent controls, primarily in compliance with their international obligations under numerous conventions.
More on Rastafari and marijuana in the Caribbean
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Marijuana in the Rastafarian faith
Reports are that on December 28, 2020, the police apprehended and charged Lorenzo Stubbs after a raid at his residence where they confiscated 1.6 ounces of Indian Hemp, with a street value of US$60.
Through his attorney, Bjorn Ferguson, Stubbs claimed that marijuana, a “sacred herb”, is employed as a sacrament in the Rastafarian faith.
Ferguson argued that Stubbs’ constitutional right included possession of marijuana and since the Dangerous Drugs Act does not provide an exemption for religious usage, it contradicts his constitutional right to religious freedom.
Ferguson referenced the 2018 CARICOM Regional Commission Report on Marijuana and the 2020 United Nations Commission on Narcotic Drugs to argue that marijuana is not as harmful as previously thought.
Acting Director of Public Prosecution, Cordell Frazer, countered this by advocating that the Dangerous Drugs Act is a legislation intended to uphold public health and safety, and thus its provisions are necessary in the interest of public health.
The judge recognized that the Rastafari faith is a profound, unified, and significant belief system deserving the protection of Article 22 of the Constitution, which ensures freedom of religion.
He also acknowledged the link between the sacramental use of marijuana and the foundational belief system of the faith.
He, however, suggested that certain issues are better left to legislators to decide.
Justice Klein pointed out that the applicant could not provide evidence showing how less oppressive measures, compared to the outright prohibition of marijuana, would safeguard the public’s interest effectively.
The judge stated that even if he had determined that the blanket ban on marijuana was unjustifiable and thus a breach of the constitution, he would still have been restricted from making the declaration in the format put forth by the applicant.
The judge concluded that, “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.”
In regards to costs, Justice Klein made no order, citing a precedent against awarding costs in constitutional challenges brought in good faith.
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