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St Kitts High Court Judge Strikes Down Ganja Possession and Cultivation Case

Image of marijuana by Alex Person

Recent events in the twin island state of Saint Kitts and Nevis have given local advocates for a change in legislation dealing with cannabis added fervour in presenting their case to government.

Already disappointed by the slow pace in which government is moving on the issue, the Cannabis Movement of Saint Lucia, headed by Andre de Caires is applauding the Government of Saint Kitts and Nevis in two areas.

The first pertains to the introduction of a Cannabis Bill by the government in that territory to regulate the use of marijuana for religious, medicinal and recreational purposes.

The other area was the judgement in a high court case that went in favour of a Rastafarian by the name of SankofaMaccabbee against that island’s Police Commissioner and Attorney General. The case was heard by High Court Judge Eddy D. Ventose.

Maccabbee was arrested by police on 24 October 2012 and charged with the offences of possession of cannabis with intent to supply and cultivation of cannabis, in accordance with the laws of Saint Kitts and Nevis.

He was found guilty by a magistrate court of the offences of possession and cultivation of cannabis but was acquitted of the offence of possession with intent to supply. He was sentenced to one month in prison for cultivating cannabis and fined $5,000 to be paid in one month for the offence of possession of cannabis. Maccabbee appealed his conviction and sentence, and in that appeal raised the issue of the constitutionality of various sections 6(2) and 7(1) of that country’s Drugs Act.

The appeal was stayed by the Court of Appeal to allow Maccabee to bring forward his application by way of originating motion. On 31 July 2017, according to court documents, Maccabee filed an application by way of originating motion seeking the following reliefs: ‘A Declaration that Rastafari is a religion (spiritual way of life) and entitled to protection under section 11 of the Constitution; A Declaration that the applicant is a person who has been hindered in the enjoyment of his freedom to manifest and propagate his religion in worship, teaching, practice and observance; A Declaration that the provisions of section 11 of the Constitution of St Kitts and Nevis protecting the right of freedom of conscience have been, are being or likely to be contravened in relation to the applicant by the inclusion of cannabis in the schedule of controlled drugs under the Drugs (Prevention and Abatement of Misuse and Abuse of Drugs) Act chapter 9.08 of the revised edition of 2009 of the laws of the Federation.’

Other reliefs were a ‘Declaration that the inclusion of cannabis in the schedule of controlled drugs in the Drugs (Prevention and Abatement of Misuse and Abuse of Drugs) Act cap 9.08 of the revised edition of 2009 infringes on Maccabbee’s right to protection for his personal privacy, accorded to him by section 3 of the Constitution of St Kitts and Nevis; A Declaration that brought against him in the District B Magistrate court for possession and Cultivation of cannabis contrary to sections 6(2) and 7(1) of the Drugs (Prevention and Abatement of Misuse and Abuse of Drugs) Act chapter 9.08 are unconstitutional violating the provisions of section 9 and 11 of the constitution.’

Maccabbee’s legal representatives called for an Order that the convictions, dated the 17 May 2013, for the possession and cultivation of Cannabis be quashed. His representatives also asked for Damages and Costs.

According to the judge, the issues under consideration were whether Rastafari was a religion for the purposes of sections 3 and 11 of the Constitution and whether Maccabbee’s right to freedom and privacy had been infringed upon according to the relevant sections of the law.

Maccabbee submitted to the court that the Drugs Act violated his constitutional right to freedom of religion and personal privacy since the inclusion of cannabis as a dangerous drug without an exemption for religious use placed him at risk of contravening the law in order to “manifest and propagate his religion or belief in worship, practice and observance.”

He also submitted that the criminalization of possession and/or cultivation of cannabis by the Drugs Act hindered and continues to hinder his freedom to manifest his religion and was not reasonably required in the interests of public safety or public health. His case touched on the justification of such in a democratic society noting there were an abundance of reports, clinical studies and data available that spoke definitively to the beneficial medicinal uses of cannabis.

According to Judge Ventose, “The Defendants correctly did not deny or challenge the evidence of the Claimant (Maccabbee) that cannabis is an integral and sacred part of the Rastafari religion.” He said this was a critical and important aspect of the case. He also said this meant that Maccabbee’s unchallenged or uncontroverted evidence that the use of cannabis is an integral and sacred part of the Rastafari religion must be accepted as correct by the court.

Judge Ventose ruled that Rastafari is a religion and is entitled to protection under sections 3 and 11 of the Constitution, that Maccabbee had been hindered in the enjoyment of his freedom of conscience guaranteed under sections 3 and 11 of the Constitution, and had been hindered in the enjoyment of his right to privacy guaranteed under sections 3 and 9 of the Constitution.

The judge further stated that section 6(2) of the Drugs Act read with Part II of the Second Schedule to the Drugs Act was inconsistent with, and therefore infringed on Maccabbee’s constitutional right to freedom of conscience and religion to the extent to which it made no exemption for possession of any amount of cannabis for religious use by adults in the Rastafari religion.

The case ended with Judge Ventose stating that various sections of the Act would be ‘suspended for a period of 90 days from today’s date to allow the National Assembly to remedy the constitutional defects set out in this judgment.’

Judge Ventose’s final ruling: “The convictions of the Claimant (Maccabbee) dated 17 May 2013 for possession and cultivation of cannabis only in relation to sections 6(2) and 7(1) of the Drugs Act are hereby quashed. A Declaration is granted that in the interim period set out in paragraph eight, any prosecutions brought under sections 6(2) and 7(1) of the Drugs Act shall be stayed. Costs to the Claimant to be assessed if not agreed within 21 days of today’s date.”

Judge Ventose delivered his verdict earlier this month.

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