Nadia Howe, Attorney-at-Law

History of the Law on Ganja in Jamaica

The Dangerous Drugs Act of 1924 made the possession and use of ganja a criminal offence.

Any individual found in possession of ganja could be sentenced to a fine or imprisonment or both depending on the circumstances of the offence. The smoking or otherwise use of ganja was also an offence which could make a person liable to a fine or to imprisonment for a term of twelve months or two years.

Rastafari is a Jamaican indigenous religious movement that developed in the 1930s in which ganja is used by its adherents as a sacrament. The movement focused largely on black liberation and was therefore considered seditious and anti-government in colonial Jamaica. Criminalizing the use of ganja under the Dangerous Drugs Act, lead to widespread persecution and arrests of many Rastafarians.

An attempt was made to challenge the constitutionality of The Dangerous Drugs Act.  In 1997, Dennis Forysthe, a Rastafarian and Attorney-at-Law, was arrested for illegal possession of marijuana and a chillum pipe at his home. He petitioned the Supreme Court for a declaration that his constitutional rights to freedom of conscience in the practice of his religion had been infringed by the Dangerous Drugs Act. He further contended in his submissions to the beneficial effects of ganja both medically and economically. His submissions were rejected by the Court primarily out of restrictions on Constitutional rights in the interest of public health, and the protection afforded to the Dangerous Drugs Act by a “savings law” clause which protected laws in existence when the country gained political independence in 1962 against constitutional challenge.

Chief Justice Wolfe in his reasoning stated that arguments relating to possible economic benefits which could be derived from legalizing ganja would be more properly advanced before Parliament to convince legislators on the question of legalizing ganja.

Such arguments were ultimately advanced before Parliament. Although ganja has not been fully legalized, eighteen years after Forysthe v The Director of Public Prosecutions and The Attorney General of Jamaica (1997) 34 J.L.R. the Dangerous Drugs (Amendment) Act of 2015 (the “Amendment Act”) was passed which decriminalises possession of two ounces or less of ganja, making it a non-arrestable, ticketable offence instead. It remains a criminal offence to be in possession of over two ounces of ganja and offenders can be arrested and tried in court and if found guilty, sentenced to fine or imprisonment or both.

Rights available to Rastafari: Ganja as a Sacrament, Exempt Events

One of the most notable amendments, however, are the rights granted to Rastafarians to use ganja as a sacrament. The Amendment Act provides that the Minister of Justice may authorize any person who is eighteen years old or over and who is an adherent to the Rastafarian faith or an organization comprised of Rastafarians, to cultivate on lands designated by the Minister. This cultivation must be for the use of ganja for religious purposes as a sacrament in adherence to the Rastafarian faith.

The Minister of Justice can also declare an event to be an “exempt event” once they are promoted or sponsored by Rastafarians. At such events no person would be liable to be arrested, detained or prosecuted regarding the conveyance of ganja, possession or smoking of ganja. Some of these “exempt events” have been held, for example Stepping High and Rootzfest, both taking place in Negril.

The International Opinion: Jamaican Sacramental Ganja

Jamaica is signatory to various Conventions or treaties such as The Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, the Convention on Psychotropic Substances of 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 known collectively as the international drug control Conventions. In order to remain compliant with these international drug Conventions, the Jamaican government has committed to a medical, therapeutic and scientific ganja industry.

The international community, however, is not in agreement with Jamaica’s decision to make ganja legal for sacramental purposes by adherents of the Rastafarian faith. The United Nations International Narcotics Control Board (“INCB”) reviews on a regular basis the drug control measures in various countries and Governments’ overall compliance with the provisions of the international drug control treaties. The INCB issued its 2017 annual report in which it criticized Jamaica for legalizing cannabis for religious use. While the U.N. claims to promote global religious tolerance, the INCB strongly disagrees with the religious nature of the Rastafarian cannabis ceremony. The report states that “The Board reminds the Government of Jamaica… that…only the medical and scientific use of cannabis is authorized, and that use for any other purposes, including religious, is not permitted.” What measures then, if any, can the INCB take against Governments’ that are not complaint with international drug treaties?

Article 14 of the 1961 Convention (and that Convention as amended by the 1972 Protocol) and article 19 of the 1971 Convention set out measures that the INCB may take to ensure the execution of the provisions of these Conventions. Such measures are carried out when the INCB has reason to believe that the aims of the Conventions are being seriously endangered by the failure of a State to carry out their provisions. The INCB also has the right to ask for explanations from the Government of the country in question and may call upon the Government concerned to adopt remedial measures. If the INCB finds that the Government concerned has failed to give satisfactory explanations or has failed to adopt any remedial measures it may call the attention of the Parties, the Economic and Social Council and the Commission on Narcotic Drugs to the matter. The INCB has already invoked these articles against a limited number of States, one such State being Afghanistan in the year 2000 to combat the widespread cultivation of opium poppy in the country.

Is there any Economic Benefit in Cultivating Sacramental Ganja?

The constitutional right to freedom of conscience in the practice of religion has long since been enshrined in the Jamaican Constitution. Therefore, it is a progressive step forward that the adherents of our indigenous and uniquely different religious form, Rastafari, are now able to apply to the Ministry of Justice to cultivate ganja for the use as a sacrament. It will be interesting to see the role these international sanctions may play in Jamaica’s current legal landscape. The question must be asked though, what commercial gains can Rastafarians derive from these sacramental rights granted under the Amendment Act? To have just been afforded sacramental rights does not equate to any real economic or commercial gain. The Amendment Act states specifically that the selling or otherwise dealing in ganja does not apply to ganja cultivated on lands for sacramental purposes. Therefore, how can Rastafarians derive economic enablement through these changes in the law? The word “sacrament” has a religious connotation and does not seem to infer, and the law is in agreement with this, any real commercial benefit from being able to cultivate ganja as a sacrament.

Economic Empowerment through the Cannabis Licensing Authority?

The economic or commercial gains to be derived from ganja from its sale is regulated by the Cannabis Licensing Authority (the “CLA”). The CLA is a regulatory body established under the Amendment Act charged with the power to make the regulations and further ensure these regulations comply with the international treaty obligations. Under the Dangerous Drugs (Cannabis Licensing) Regulations (the “Regulations”) of 2016 several licenses are available that grants the holder of the license, the ability, amongst other things, to sell and thereby derive some economic benefit from ganja. The Regulations also outlines the applicants who may apply for licences. One of these applicants includes a cooperative society registered under the Co-operatives Societies Act or a society registered under the Friendly Societies Act or a company incorporated under the laws of Jamaica.

There is more strength in numbers. To secure economic enablement, Rastafari, or even just traditional or indigenous small farmers, must form one collective voice and body or perhaps several collective bodies. This collective body or bodies could take the form of a Co-operative or several Co-operatives or a Company and an application can be made to apply for one or several of the many licenses under the Regulations. These licenses include a cultivator’s license, a processing license, a transport license, a retail license and a research and development license. Smaller traditional farmers like Rastafarians may face a few constraints, one such constraint being the fees involved in securing a license. An application fee must be paid, ranging from USD $300-$500 dollars. Another fee is payable on the issue of the license ranging from USD $2000- $10,000 (note briefly that the fees for licenses with separate tiers are further broken down per square meter) and a security bond is payable (depending on the license type) ranging from USD $1000-3000.

Capital, like that listed above, may be difficult to procure however the Regulations make special provision for the payment of fees. The Regulations provide that the CLA may, in respect of any category of license, (after consultation with the Minister of Finance), waive the payment of any fee or security bond or defer the payment for a specified period. This option could be pursued, and an application could be made to have the fees or security bond waived or at the least very least deferred for a particular time period. It must be remembered that licenses granted under the jurisdiction of the CLA is in accordance with medical, therapeutic and scientific purposes only and does not encompass sacramental use.

A Sacramental Ganja Industry or Economic Empowerment through the CLA?

What though, about a sacramental industry, or at the very least a local sacramental industry where those exercising their right to cultivate their sacrament are able to sell their sacrament, for example, to other adherents of the Rastafarian faith. Or, is this even possible? Does attempting to derive a commercial benefit from ganja as a sacrament mean that ganja is no longer a sacrament? In other words, does an added economic benefit negate the religious connotation of ganja as a sacrament? These questions may ultimately require adjudication and an amendment to the Amendment Act to permit the sale of cultivated sacramental ganja, or perhaps, the allowance of some form of contribution in exchange for the use of the sacrament. Will the international Conventions that Jamaica is signatory to even permit any kind of development of such an industry?

Constitutional challenges regarding sacramental use are also taking place internationally. In Canada for instance Leafly has reported that Davidacus Holmes of Jamaican descent and founder of the Sanctuary of the Rastafarian Order Ministry, Canada’s first registered Rastafarian church, is currently seeking a full religious exemption for the production, processing, and distribution of cannabis.

If Rastafarians only wish to exercise religious rights to their sacrament in peace, they have now won. Despite international Conventions, the law permits adherents of the faith, through the Ministry of Justice, to be able to cultivate ganja for religious purposes. However, as a small State, Jamaica may struggle to hold on to it’s autonomy under international scrutiny to adhere to Convention obligations.

Can this empowerment be secured through the sacrament, or through the CLA? His Majesty Haile Selassie I said it best when he stated that “History teaches us that unity is strength and cautions us to…overcome our differences in the quest for the common goals, to strive, with all our combined strength, for the path to true African brotherhood and unity”. Whatever differences may exist in the Rastafari community it is respectfully submitted, should and must be set aside. Collective voices to face these issues are stronger than none. Then, initiative must be taken in trying to secure economic empowerment through this growing industry.



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