In 1997, Dr. Dennis Forsythe, described in Forsythe v Director of Public Prosecutions and Attorney General (1997 34 J.L.R. 512) as a sociologist, holist, author, Rastafarian and attorney-at-law, petitioned the Supreme (High) Court for a declaration that his constitutional rights to freedom of conscience and freedom of religion had been infringed by the Dangerous Drugs Act 1924. Forsythe had been arrested for illegal possession of marijuana (called ganja in Jamaica) and a chillum pipe (used to smoke marijuana) at his house. Rastafarians are adherents of a religious movement originating from Jamaica that smoke marijuana as a religious sacrament.

Forsythe stated in his affidavit that:

“Ganja is integral to my religion as a Rastafarian and I should not be made a ‘criminal’ because of my Religion’s definition of Ganja not as “drug’ but as a “Plant” and be declared a “dangerous person” explicitly or impliedly only because of my adoration and usage of Ganja as a sacrament regarding it as I do as the “body of Christ” and observing it in the same divine manner in which the Established Church observes the Eucharist…”

The three-member bench unanimously rejected the submissions. The reasoning was based both on restrictions on Constitutional rights in the interest of public health, and the protection afforded to the Dangerous Drugs Act by a “savings ” clause which ring-fenced laws in existence when the country gained political independence in 1962 against constitutional challenge.

The 2011 reform of the Jamaican Constitution included the repeal of the “savings” clause, and the enactment of a new Charter of Fundamental Rights and Freedoms. Justice Minister Mark Golding has asserted that the government believes the Dangerous Drugs Act could no longer withstand a constitutional challenge under the new Charter, and Parliament has just passed legislation amending the Act.

Although Jamaica is the first Caribbean country to reform its legislation governing the use of marijuana, it is part of a growing international trend. Portugal decriminalized possession of marijuana over a decade ago, Uruguay has already legalized marijuana, as have Colorado, Washington State and Alaska, in the US.

The legislation decriminalises general possession of marijuana of two ounces or less, making it a non-arrestable, ticketable offence instead (s. 7 C read in light of s.7 F (3) and s.7 G (1)), while also exempting from the Act the possession of marijuana specifically for “religious purposes as a sacrament for the Rastafarian faith.” (s.7 2(c)(a)). The Justice Minister may allow cultivation of ganja for religious purposes once satisfied that applicants are Rastafarians, and may declare events as ‘exempt’ once they are promoted by a Rastafarian, primarily for celebrating the Rastafarian faith (s.7 D (8)). If an event has been designated exempt, no one conveying ganja to, or possessing or smoking it at, such an event will be liable for arrest, detention or prosecution (s.7 D (9)). Also, smoking of marijuana, like tobacco, will now be banned in public places, except for registered places of Rastafarian worship.

The enforceability of these amendments is problematic for police and prosecutors. Firstly, in relation to the small quantities of marijuana, often the weight will not be immediately ascertainable. The provision allowing for possession of ganja being conveyed to a Rastafarian ‘exempt’ event raises similar questions of discretion and enforcement.

Secondly, although designed to protect religious rights, it seems likely that the distinction made in the legislation between Rastafarians and non-Rastafarians, coupled with the restrictive limitations placed on non-religious personal possession and use, will create serious enforcement problems if the police are not to completely ignore the border between what is, and is not, designated criminal. Cultivation for personal use (assumed to be medicinal), for example, is restricted to five marijuana plants per household.

Jamaica has taken this clumsy legislative route because of the government’s need to balance the decriminalization of the widely-practiced smoking of marijuana, the protection of rights and the development of a medical marijuana industry, while avoiding full legalization in order to remain compliant with international narcotics conventions, such as the 1961 UN Single Convention on Narcotic Drugs.

In the months to come, it should become clear whether the protocols and regulations to be developed by the state will enable its multiple intentions to be achieved.