A. WIDE PUBLIC CONSULTATION
The overwhelming majority of persons appearing before the Commission feel that ganja should be decriminalised, but are united in restricting its use to private space and to adults. Their arguments are presented in this section.
(1) personal benefits
These range from miraculous-like cures to relief from simple colds, but they include well-known ailments and symptoms such as asthma and glaucoma. The Commission received many personal testimonies of benefits from either smoking ganja or ingesting it as tea or medicine steeped in rum. We heard the tale of a woman whose beast of burden was cured from the ashes stuffed in a wound; of a man stricken as a schoolboy with dengue fever, who drank the tea and was cured overnight; of a former Jamaica Constabulary Force member whose chronic hypertension, after nineteen years of prescribed medication, completely disappeared with the now regular smoking of ganja. We quote the story of a prominent professional stricken with cancer, who not only was "violently against ganja in the first place", but also at one time shared responsibility for ensuring that the country's exports were drug-free. Saved by the anti-nausea properties of ganja, but carrying a moral burden of falling on the wrong side of the law, he carefully and in measured wording argued that "to impose restrictions and to impose the taint of illegality on something that may be used really as a home remedy, like mint tea or ginger tea or cerasse tea or whatever it is, creates an additional burden for those who are ill and imposes, it seems to me, a situation which reduces their ability to fight and overcome the condition which they are in".
The stories of the personalised benefits of ganja are so deeply entrenched in the folklore of the people that we do not think any warnings as to its danger or attempt to suppress its use by punitive sanction stand any chance of success. More so because of recent scientific advances in manufacturing legal drugs from it as well as much publicised changes permitting "medical marijuana" at State levels in the United States and in Canada.
God and the natural order
The Commission interviewed many people for whom the present laws fly in the face of God, the Creator. Their argument is that ganja is a natural, not a man-made, substance, given by God to be used by mankind as mankind sees fit, the same way that He provides other herbs and bushes. As a natural substance, ganja does not even have to be cultivated. Spread by birds and other vectors, it grows wild. It therefore cannot be eradicated. God also created other poisonous herbs but none of these is subject to the prohibition imposed by the law. In the simple words of a thirty-two year old handyman in Montego Bay, "the weed don't really have no revenge carrying because it comes from God. He created all earth, trees, seeds, you know, so if you are going to fight against it you are fighting against what He does. You already know that man fight against a lot of things that He does. If you are going to charge a man for it you have to charge God because God make it." Or in the words of a sixty-five year old retired postal service worker, "I hate to hear the word legalise, because how can you legalise the thing that God create? People must think weh dem talking, man. God say every herb is made for man, so God wen wrong when he mek ganja? God wen wrong? I tell you I hate to use the word legalise because you can't legalise weh God create, because God a God!"
Among many people we spoke with in the streets, the influence of Rastafari mythology was clearly felt. One eighty-year old male Evangelist, who spoke of ganja as a creation of God, echoed the belief that it first appeared on the grave of King Solomon.
With such deeply-held religious views, which cut across gender and age, many regard the existence and prosecution of the laws against ganja as evil.
not a crime
We met no one who regarded the simple possession or use of ganja as a crime in itself. There were those few, who, opposed to any change whatever, saw it as criminal by definition, that is criminal because the law says it is. But of the hundreds of people who spoke no one saw the drinking of ganja tea, or folk remedy use, as a socially harmful act belonging to the category of offenses against other persons. In other words, ganja use to them is not immoral. Many Christians found smoking in general to be reprehensible, if not sinful, and so categorised ganja smoking, but they too saw nothing essentially criminal about drinking it for tea or using it for medication.
Universally, in the Commission's visits throughout the island, the views were everywhere the same: it was grossly unfair that alcohol and tobacco already proven to be more harmful substances were legal but ganja was criminal. "What happen to tobacco weh a kill nuff people and a give people cancer", angrily asked a young man in an inner city community, "how dem legalise that and have that pon di shelf?" His colleague-participant in the street corner interview before the Commission, replied: "A pure hypocrisy dem keep up pon we. You know what a man tell me se and me have fi look pon him? The man look pon me and say, `Is not everybody weh you see poor is fool'. And one o' di thing weh dem a use pon wi is dem thing deh like herb" [This is all hypocritical. Do you know what a man told me that made me respect him? The man said, `Not everyone poor is a fool.' And herbs is one of those things that think we do not see through]. The difficulty of reconciling the legal status of tobacco, a known cause of lung cancer, or alcohol, a known cause of death, with the illegal status of ganja, not known in its entire history for having been the cause of a single death, led some to speculate that this was a form of the whiskey-drinking classes trying to keep down the poor man from having his "poor man whiskey", or of the "white people" suppressing the colonial peoples of Asia, Africa and the Americas, or, finally, of the liquor and tobacco companies stifling potential competition.
alleviation of stress
Stress alleviation is a personal benefit, but we single it out because of the peculiar psychological effect attributed to it by so many we spoke with. A man told us of his experience, when, as a young man, he had taken a resolve to kill a policeman who was relentless in harassing him, but how a smoke of ganja calmed him, put the conflict in perspective, and saved the lawman's life as well as his own.
This calming effect was cited by many. According to one rural landowner who himself has been a chronic user, the legalisation, which he believed could not be mooted at the present time, would "reap untold benefits in terms of social calm, in terms of reducing the friction that exists between the people and the police". His views were echoed by a thirty-two year old inner city resident, who explained that "more time you wi deh pon the road and some likl punk wi get you pissed off, and you do so bam, you burn a spliff, you cool, you just easy. It calm you down. That is what me know it do, it do for the body. It calm you."
A resident in yet another inner city community explained to the Commission the importance of ganja in the prisons: "You see all a man weh deh pon long sentence? A herbs a man use and run him sentence! That is why you see herbs haffi smuggle inna jail, no care what happen-herb dem man-deh use and run dem sentence!" [Take the case of a man on long sentence. It's the herbs he uses to cope with his sentence. That's why the herbs has to be smuggled into prison, no matter what-it's herbs those men use to cope with their sentences].
He went on to say of themselves, "We weh deh pon di road, we a prisoner, too, because we deh in a little segment. A herb we have fi use fi keep our control said way! A it mek we can go on day to day underneath dem stress ya weh wi a face. A herb wi have fi bun more time fi hold it and so that we don't do silly things!" We understood him to mean that they too, although technically free, were prisoners of the ghetto, their "little segment", and resorted to ganja to keep control over themselves, to keep from doing "silly things", that is running afoul of the law.
(6) criminalising the non-criminal
Many were the submissions to us that addressed the danger to society already posed by criminalising ganja. A corollary of (c) above, the lumping of ganja users together with men who have committed serious crimes against the person only serves to corrupt them. According to many, the jailed ganja offender is often forced into a situation where unless he exhibits "bad man" ways he cannot survive the lock ups, or where he develops sympathy for hardened criminals or enter into relations with them. Having gone in as a law-abiding person, except for ganja, which no one regards as wrong, he returns a bitter opponent of the rule of law.
Others, including one officer of the law, identify the criminal problem with ganja as coming not from its effect on the user but from the illegal and immoral activities surrounding the growing and trafficking of it. Their views coincide remarkably with the views of experts who cite the effect of Prohibition in the United States up to the 1930s. Complete legalisation of all banned substances, these experts argue, would cripple the criminal syndicates and organisations that are reaping vast amounts of wealth controlling the production and distribution, and by placing the emphasis on education and rehabilitation would be less costly to State and society than the efforts to suppress.
Almost everywhere it went, in town, in country, the Commission heard tell of the scourge which crack/cocaine addiction has had on communities. In terms of social impact, ganja use was far less a threat than cocaine addiction. A sixty-two year old housewife in a passionate statement, told the Commission:
As I stand up here, I have a son and him have eight subjects in CXC. And if I stand up here him will sell me. I can't take mi eye off him. Him break mi place and him do all manner of evil. Sometimes me say me would a buy something and poison him kill him. Me naw tell you nuh lie, you know. Mi say I woulda give him a good plate a food and see him dead. Mi tired a it, me get fed up. Well if him did a smoke the ganja, me nuh think him woulda gwaan so. The coke mash up the people-dem. A dat the people must hail out on, not the ganja. I don't smoke and I don't know what dem get from it, but I believe a di coke dem fi stan up pon.
This mother's pain was intense and personal. But other depositions made before the Commission represented that serious erosion of the social fabric, which once guaranteed the stability and sociality of community life, has been taking place. The corruption crack/cocaine has brought about poses, they believe, a serious threat to the society. They link the call to decriminalise ganja to the urgent need to curb the cocaine menace.
B. VIEWS OF EXPERTS AND INFLUENTIAL LEADERS
Written and oral submissions were made by a number of professionals, volunteers and persons of influence in the country, whose expertise and special interest make their views compelling.
Professional and volunteer workers with Addicts
In their own individual capacities, several professionals and volunteers declared their support for the decriminalisation of ganja to the extent set out in the Terms of Reference. Their arguments cover some of those proffered by the general public, for example the inconsistency where tobacco and alcohol are concerned, but include as well:
the fact that ganja is not manifestly harmful for the majority of people who use it in one form or another;
the inability to suppress it by legal means;
the wasteful use made of the criminal justice system, in terms of its human and financial resources; and
the compromising of the anti-drug message.
In relation to (iv) the views of two experts are well worth quoting verbatim.
Expert 1: In our school programme there is no perception of harm in the use of ganja, none whatsoever. So, let us say the education is the key.
Expert 2: It is very, very hard to convince these young people that they should not smoke it.
Expert 1: Personally, I am not so sure whether decriminalising would make a big difference. Our young people are trying to give us a message and we are not listening to them. They have not bought [our] message, and for some reason the education that we have been giving them maybe has not been clear. They are getting cross-messages.
Chairman: Are you saying that young people are using…ganja as a way of telling us something?
Expert 1: I think the fact that the usage is so widespread and it is growing, not just here, but right throughout the world, I think they are trying to tell the world that "we are not buying your message".
Expert 2: I think what you are saying is that the type of education that is out there, what young people are saying is that "we don't believe that is so". So it comes back to who develops the policies and who develops the materials. Most of them [who develop the policies and materials] don't really understand what this drug is all about anyway. And if you tell a child that marijuana is going to impair their memory, but their mothers and their grandmothers and everybody around them have been using it for the last twenty years and they don't see any harm, they are not going to believe the message. So I think, when we look at the message, the type of education, it needs to be developed by people who really know, people who are in recovery, people who work with young people every day, people who used the drugs themselves.
Expert 1: Not tying the message of ganja in with other drugs. There has been a tendency that a drug is a drug is a drug. And drug education went across [like that]. And, really, from my own experience working with young people, that is not working. We have to be much more specific in the fact that we are doing education on ganja, that it is specific and we are not linking it with a drug like cocaine.
The gist of this excerpt is that current education to discourage ganja use by children lacks credibility. For it to succeed, ganja should be separated from hard drugs, its criminal status reversed, and the education around it framed and carriedby people with personal experience of the substance. All the experts, and indeed all but a very few of the over tow hundred users and non-users who made depositions, argue that ganja, particularly in the form of smoking, should be kept away from children. Many were the examples brought to us of students, almost always boys, who became demotivated after beginning to smoke ganja. To convince such young people to refrain requires an entirely different strategy from that adopted for the control of other substances, particularly crack/cocaine.
A trained Counselling Psychologist, with many years experience working at the Bellevue Mental Hospital, and in managing a drug rehabilitation centre, spoke on his own behalf.
Carefully distinguishing between the legal status of cannabis and its effects, he presented a case that the legal status of the substance was not due to its effects. The same was true of the 1919 ban on cocaine under the Harrison Act in the United States, as well as the ban on alcohol and the lifting of the prohibition in 1933. The 1937 ban on marijuana was not guided by medical knowledge. What motives there were, he opined, could have been economic, but he was convinced from his historical research that medical motives were not the reason. Turning to the effects, the Psychologist pointed out that it was true that ganja had ill effects, in particular as a dis-inhibitor in young users. But, both those who supported and those who opposed the status quo, by being one-sided, were victims of a jaundiced view. "Those who support the legalisation sometimes speak as if the drug has absolutely no harmful effect. I think they are speaking maybe not out of ignorance but out of anger for the lies that have been told on the drug, to the extent that they ignore some of the truths in their defense of it. The harm that marijuana can cause cannot in any way justify it being illegal. If that were the case, we should maybe make ackee illegal, because by far ackee contains one of the most deadly substances that human beings can ever come in contact with."
He supports decriminalisation, pointing to the threat to the rule of law entailed in maintaining laws that cannot be enforced.
Under the National Council on Drug Abuse, scores of Community Development Action Committees (CODACs) operate at community level. The Commission heard from individual members in several areas of the country, all of them supporting decriminalisation. One of the most persuasive, however, was the Coordinator of a CODAC from a working-class community in Kingston.
"The community supports conditionally the decriminalisation of possession of ganja for personal use, not because it is harmless-all smoking is harmful, but under the present law otherwise law-abiding persons are treated as criminals. The smoking of ganja should be a health concern and not a criminal matter; not an act for punishment but a matter of medical instruction and help. In addition, for every individual arrested and charged, several are not apprehended. One youth is held at a corner and taken to the police lock-up, but hundreds of individuals blow ganja smoke in the face of other spectators at the National Stadium unchallenged. Feelings of partiality and injustice are harboured and people lose respect for the system of law."
The Coordinator addressed several critical issues. One was the gap created between the community and the police. Young men refrain from joining the well organised Police Youth Clubs because as ganja smokers the clubs bring them too close to the police, who they feel more easily frame a smoker than a non-smoker.
The women also-mothers, sisters, girlfriends-dislike the police for harassing their sons, brothers and spouses over a splif "while they, the police, are having dealings with the ganja men."
More critical is the need to look beyond the fact that young people are using cannabis, to why they are using it. Faced with deep emotional and psychological problems, some of them peculiar to their stage of development, others to their social and economic status, they turn to ganja.
"We have found that in our community six youngsters who were involved in firing guns-they say they were defending the area from others, in all these cases their fathers were gunmen, killed by gunmen. In two instances the fathers were thieves, killed by the police. Now, somehow they seemed able to go along with this, until they reach fifteen, sixteen, and then the anger starts to come out.
One young person says he hates every May and June. Why? We found out. Mother's Day is in May and Father's Day is in June, and he knows neither mother nor father. And this is somebody who has been to a Technical High School, and he is under so much stress sometimes. So when he said, `Do you know that I used to defend a gun?' I said, `Well, I am not surprised.' He said, `I used to hold up people, too, you know.' The emotional problems, what happens inside! They are having real problems, emotional problems. I think we tend to talk to them but we don't listen to them. We don't hear what they have to say.
I think it is established that most of the youngsters are regularly abusing ganja because of these other emotional and psychological problems and they all tell us that it is a comfort. It relaxes them. Nearly every single one whom we have spoken with tell us this, that, you know, when you are out there the weekend, [and] you don't have anything to eat and there is no work, nothing, and somehow these things come across to you. And then they sit down there and the pressure comes on, and then they take it [ganja].
Now, two boys are having similar problems, stressed out. One his mother takes to her doctor and the doctor prescribes a tranquilizer. The other on the street has no mother, no money-his tranquilizer is a splif. The trouble is that he keeps using it, because I suppose it is like you are having a headache, you take Panadol or Phensic. When this comes up for him, he just takes another splif and forgets what is happening. Now when you try to take that away from him, he becomes very angry and turns against the whole system, and says, `Look, all of you are against us!'"
The CODAC's answer is a strategy that focuses not on the evils of ganja but on demand reduction, in the context of attending to the root problems. In this way the respect of the youths is won and they are inclined to take advice. Such a strategy, however, necessarily demands decriminalisation as the first step, before being able to tackle the emotional and social problems. Hence, the CODAC's recommendations:
"(1) For private personal use as a cigarette splif and bush tea, a lineament, on private premises-no arrest.
Smoking it in public places, public gatherings, a misdemeanour, and that is for openly disrespecting the law, and putting non-smokers at the risk of intoxication. In that case-a ticket, as in a traffic offence. The person receives a ticket to appear in the Drug Court. Students eighteen years and under smoking it in public should be taken to the Principal for the school to decide if the school will undertake to provide counselling or other support for that student, or if the Principal feels that the case should go to the Drug Court."
The Coordinator drew attention to the canvassed opinion of Guidance Counsellors from fourteen schools, most of whom opposed decriminalisation, their major concern being that it would remove the one barrier preventing students from smoking ganja. But in his opinion, the Counsellors were ill-informed, "they do not fully understand what is involved".
(4) The National Council on Drug Abuse (NCDA)
The Chairman of the NCDA presented to the Commission the position of the Council on the decriminalisation of ganja. Premised on its mission to reduce the supply and demand of illicit substances and the abuse of licit ones, the Council works with other agencies in implementing prevention projects.
The Council notes the important derivatives of ganja being marketed for medical use, but is aware of its acute effects, which have implications for learning and motor skills, and the possible negative effects of chronic use on production in both the private and public sectors. It is aware as well of the psychosis produced by excessive use and of marijuana-modified psychiatric states, which worsen certain psychiatric illnesses.
Notwithstanding all this, and in light of the worse effects produced by other substances that are legally available, the Council "support[s] the decriminalization of ganja, such as to allow the possession of small, specified quantities, by adults for use within private premises," with a number of measures aimed at primary prevention, protection of the general public, and rehabilitation of habituated users.
Decriminalisation would have to take into account Jamaica's obligations to the treaties and conventions it has signed and ratified, but the Council "is aware that many countries are considering the modification of their laws in respect to Ganja."
What led the Council to adopt such a position? "I can tell you," replied the Chairman of the Council. "One-the way it became a criminal act was totally unacceptable in this day and age. It should not have been there in the first place.
Two-when we examined the other substances now which are available and legal, we see that the damage that those things cause are much more potent than the evidence we have for ganja…. When you think of alcohol, the organ damage which results from alcohol you would be appalled-cancer of the throat, cancer of the stomach, cirrhosis of the liver, cancer of the liver, testicular atrophy, brain damage, pancreatitis, heart disease-can I stop there? Okay, let's talk about tobacco-lung cancer, throat cancer, cancers, emphysema, heart disease, hypertension. Those substances are legal and available. So, … even though it has psychological influence, to use a splif should not be a criminal act."
The Council's position is the result of seminars and workshops, which included scientific and legal presentations.
(5) Medical Association of Jamaica
The President of the Medical Association of Jamaica spoke on behalf of the Association. The Association is of the view that the present laws of criminalising people for small amounts "is probably having a worse effect than if it had been legalised," though the Association is not recommending legalisation. Possession of small amounts for personal use, within the confines of the home and not in public places, as long as this does not impinge on the rights of others to be at peace with themselves, could be decriminalised."
(6) The Chief Medical Officer
The Chief Medical Officer of Health, Dr Peter Figueroa, spoke to the Commission in his own individual capacity as an epidemiologist. He began by reminding the Commission of the widespread cultural significance of ganja, substantiated by a 1993 lifestyle survey which found an "ever smoked" incidence of 37% among men of ages 15 to 49, and 10% among women of similar age. Forty percent of these men and 22% of these women were what he would define as heavy users, that is they smoked three or more times weekly. Listing some of the side-effects to both short-term and long-term use, he drew the conclusion that "the use of ganja is adverse to good health and needs to be discouraged," but proposed that a different approach ought to be adopted to those substances that are culturally endemic from those that are newly introduced into society. "I am of the view," he said, "that criminalising ganja use when the use is personal and private does not make any sense." It does not, because, if the objective is to reduce use, experience (certainly with cigarette smoking) shows that prevention is more effective than treatment and rehabilitation. "[F]or me decriminalisation is simply a platform in order to better control and prevent the use of ganja. My own view is that to try any kind of educational programme in a climate of criminalisation, you are not going to get anywhere, given the endemic use and the strongly-held confirmed views."
But even in a decriminalised context, education, though necessary, will not be enough to make prevention successful.
Again, drawing from his wide experience with tobacco use, the Chief Medical Officer said: "There are studies to show that where educational programmes are put in place with young people-serious programmes, starting from young age right through school, if you don't have the other measures in place, what happens is [that] the cigarettes are promoted." Other measures include limiting access through taxation and banning use in certain spaces, and serious health warnings with every purchase. In the case of ganja these must include measures that provide an environment supportive of the education, such as banning its use in public. "Decriminalisation," he emphasised, "is a platform for a strategic reduction of ganja use in the society, not for freeing up a lifestyle."
(7) Political Leaders
The Commission presents the views of two leaders in representative politics, one a medical practitioner and member of the Jamaica Labour Party (JLP), the other a practicing attorney and member of the People's National Party (PNP).
According to Dr Horace Chang, from a professional point of view "I don't see the risk involved in the use of ganja justifies it being made an illegal drug." He reminded the Commission that from as early as the 1970s a youth organisation he had established within the JLP called for decriminalisation. This position was taken to Parliament by Dr Percy Broderick, and resulted in the setting up of a Joint Select Committee of the House and Senate. Nothing came of it, however, so "we have kind of come full circle twenty-three years later".
The medical problem with ganja, as far as he saw, was ganja psychosis, which affected no more than 0.5% of users. Most legal drugs had side effects, anyhow, often more serious and far-reaching than ganja. It was better, he felt, to educate around the risks than to ban wholesale a substance that was quite clearly cultural.
He raised what he saw as a far greater problem, that of cocaine, and shared with us his opinion that for the amount of cocaine seemingly passing through Jamaica, the number of persons addicted ought to have been greater. That it was not he attributed to ganja.
"Culturally the strongest opponents [of cocaine] I find at the street level and in our poorer socio-economic group are people who actually use ganja. I find [they] just take a position that the `white lady' will ensnare them". In other words, the culture around ganja functions as a buffer against the spread of cocaine.
According to Mr Ronald Thwaites, ganja use by the young people in the constituency he represents in the city of Kingston, "is very much an antidote to boredom, a sense of uselessness and an inability to, by other means of occupation and recreation, actualise [their] best dreams."
He cites the example of some young men taken from his communities, the type who would have been smoking ganja, many of them with criminal records, put through the National Youth Service programme of personal discipline and social reconstruction, and who were so completely rehabilitated, that they were able to move into positions of assistant sports masters in primary schools. Thus, once gainfully employed they have little need ganja.
For him, the prosecution of ganja, especially with respect to small quantities, and the way the interdiction is carried out, only serves to bring the law into disrepute. "One thing that the law must never do is fly in the face of the mores of a people for an extended period of time, where despite consistent interdiction, education and a standard being maintained by the law, it is still consistently at odds with their dominant social pattern".
Of far greater concern is crack/cocaine. "If I", said Mr Thwaites, "were ever to resile from being an abolitionist [as far as capital punishment is concerned], it would not be so much for murder as for the purveyors of the hard drugs, and cocaine especially. Those who spread cocaine in this community and crack, are not only murderers, they are mass murderers. And it is a reproach to the system of Government and the canons of law-abiding behaviour that we spend our time and our money voted for national security running after small quantities of ganja when I can identify for you-and I have identified for the police and the Ministry of National Security, at least four crack houses in this constituency, and nothing has been done!" This double standard, he was sure, was not lost on the people. It set "their teeth on edge against the law, against the whole tissue of social authority."
He concluded that, though not personally in favour of the use of ganja, it ought no longer to be proscribed by criminal law.
(8) Law Enforcement Officers
Also not to be ignored are the views of law enforcement officers. We first interviewed a retired Assistant Commissioner of Police, and a Sergeant of Police.
(i) The retired Assistant Commissioner of Police, with forty active years in the JCF at all levels, interacting with the general public, observing the changes in beliefs over the period, and being party to the enforcement efforts before, during and after the period of mandatory sentencing, comes to the position that the possession of cannabis below a certain weight should not be a crime. That it has remained for so long on our statutes as a crime, which, aside from the sentence one serves, remains on one's record "is one of the most destructive aspects", one that has "a most deleterious effect on our young people".
In support of decriminalisation for private purposes, he is of the opinion that the relations between police and citizen, in particular the poor, was flawed by our failure at Independence to inculcate within the Force "a deep respect for the individual and the individual's home, however humble". The power to enter and search a home is a power that normally should not be granted easily in legislation to the law enforcers.
"To be frank", according to a Sergeant of Police of a very large station, "for the small amount I think it costs the Government more to bring a person to court, than it costs the person. Because the paper that you write it on maybe costs more."
The officer expressed the view that ganja smoking does not of itself contribute to crime. What does is the prohibition that drives cultivation and trafficking underground. "Whatever contribution to crime is like a person plants [and] somebody comes in to steal it. That is where the crime comes in. But to say that because somebody use it they go out there and steal, I don't think that is a fact".
(9) His Grace the Most Reverend Roman Catholic Archbishop of Kingston
His Grace, the Archbishop, presented to the Commission the view that ganja use ought not to be criminal. He based this conclusion on three principles. The first was the theological approach that in creating the world and everything in it, God created them good and created them for the use of mankind. Second, God invested in mankind stewardship and dominion over all things. This required mankind to investigate, with a view to understanding, the qualities and capabilities of the various plants and herbs, including even noxious ones. And third, in the exercise of dominion, mankind was also expected to exercise responsibility. "We always teach people, `Everything in moderation'. Anything that we do in excess, or abuse, is going to have ill-effects upon us."
Based on these principles, His Grace confirmed that the decriminalisation of ganja for private use would have the blessing of the Roman Catholic Church. He emphasised that the views he expressed were personally shared by his fellow Bishops in Jamaica.
Moderation being one of the principles on which their position stood, His Grace saw no necessity to regulate quantities, and would therefore support the conscientious use by certain people for religious purposes. "My thing is to respect a person's conscience and anything done in moderation, not abused. And if they see that it is something than can assist them in their prayer life and in approaching the divine, and [if] they genuinely and sincerely believe that God has provided it for them to assist them in that, then I can't say to that `It is immoral'. And I can say to the Government to decriminalise it, unless the Government can say it is going to be abused in [the] act of worship."
(10) His Lordship, the Anglican Bishop of Jamaica
"[To] be consistent with Christian morality," the Lord Bishop said, "the fact that you are against something does not mean that it should be a criminal offence. I can think of maybe a thousand things that I would classify as one, and they are not criminal offences. In saying that, I would have no problem in decriminalising limited private use by adults of marijuana, without compromising my position that it is not something that [one] would consider to be good or healthy or right." Sharing with the Commission views from a paper he had written on the subject in 1977 at the request of the Bishop at that time, which he remains in substantial agreement with, he distinguishes the recreational from the medicinal and religious uses of ganja. He supports the decriminalisation for private medicinal and religious use, but has reservations about recreational use, because, although ganja is not addictive, it exposes young people to other more dangerous substances. But, agreeing that in practical terms, it would be difficult to decriminalise for private and religious but not for recreational use, he declares it unjust for any law to target, as this one does, the young, vulnerable and poor. "If the intention is to protect the morality of these young people, then you certainly cannot protect it by sending them to prison where they will mix with hardened criminals and come out as criminals, whereas they were not before and needn't have been." Morality cannot be legislated, he says. Ways need to be found, he concludes, to reduce demand through alternative activities "that people could find more wholesome" in achieving the same objectives.
(11) Lord Anthony Gifford
Lord Gifford in an early appearance before the Commission spoke to a written brief he presented in support of the decriminalisation of ganja, but arguing as well for its complete legalisation. Cautioning that he was not himself a user of ganja, but that his approach was that of a human rights advocate, Lord Gifford made the following points.
In the first place, "if there is a substance which is derived from something naturally grown which gives a lot of pleasure to some, it should not in principle be bad just because it may be abused by others." From a spiritual point of view, it is better to encourage people to use responsibly what God has given. Secondly, educating people, especially young adults, is more effectively done on the basis that something is permitted but that they should exercise caution with it. Thirdly, the prosecution of so many unfortunate defendants, most of them for smoking splifs, is nothing short of a violation of their human rights.
Drawing attention to the conundrum that would ensue were possession and use to be decriminalised but production and trafficking not, he urged the Commission "to grasp the nettle" and recommend that it be legalised. Only thus would ganja be extracted from the criminal fraternity, and a regime laid down to allow it to be grown, bought and sold, subject to basic controls.
He found The Netherlands solution, where ganja is decriminalised for use in specially designated cafes, but still illegal, as "a kind of half-way compromise", which nonetheless, by separating ganja from hard drugs, has had the partial effect of reducing the use of the latter.
Lord Gifford drew the attention of the Commission to a recent judgment handed down by the Canadian court, which found the sanction against self-administered use of marijuana for medical conditions a violation of the right to liberty. In his opinion the Jamaica's ganja laws are in violation of human rights.
(12) The Rastafari
It would have been remarkable, indeed, if the Commission did not receive depositions from the Rastafari community. Apart from the many Rastafari adherents interviewed in the course of the Commission's hearings in various parts of the country, three delegations presented. The first, led by Abuna Foxe, came from the Church of Haile Selassie I, with branches in Kingston, New York and London. The second comprised elders of the Nyabinghi order, from Pitfour in the Montego Bay area, and led by Bongo Mannie and Ras Tafari, and the third was a team of three non-affiliated believers, led by Ras Iya. Two of these three delegations included women.
As is well known and in need of no repeating, the Rastafari cultivate the use of ganja for their religious purposes, although the tradition of giving it sacred status is of Indian derivation. As a community Rastafari have been advocating for its legalisation, or certainly defying its criminal status at great personal costs, for over half a century. Their appearance, therefore, presented the Commission with a valuable opportunity the more fully to appreciate the theological and ethical premises on which they justify and use ganja as a sacrament and a part of their way of life.
The Church of Haile Selassie I
The leaders of the Church of Haile Selassie I base their justification of the use of the sacramental use of ganja on an analogous argument, using the doctrine of transubstantiation. In transubstantiation the bread and wine are transformed by the words of the priest into an entirely different material substance, namely respectively the body and blood of Jesus. In the same way, seeing that "in Rastalogy anything the word does not give a name to does not exist", the pronouncement of the Rastafari priest transforms the herb into "the body of the mighty Trinity".
In their ritual practice the sacred herb is placed on an altar, called a tabu, and blessed by the priest. Some of it is separated and placed into a censer and the congregation blessed with it. "The women is on the right hand side, the men on the left. So, what the priest do: him went over the women and she say `Bless me', and him make a chant over her head, and … she inhales and she says a prayer on herself. And she let it out. That send it to the heavens-it is a communion."
Thus is the administering of the sacrament done, all present taking turns inhaling the sacred fragrance. The rest of the substance is distributed ad libitum in small quantities to adult male members-"our women don't smoke ganja", to take home at the close of the ceremony for their own private use. The leaders limit this distribution to members twenty-one years old and over, and stress their rejection of the recreational use of it. Ganja is "not for any form of enjoyment or desire", explains Abuna Foxe. "In Rastalogy we believe that the Goliath is the lower self and David is the higher self. For us to kill that lower self we have to control the five senses, kill desire. We believe that when one is being initiated into those principles then one would see herb not as something to get high on, but as part of the body of Christ which gives strength. …It is not like I want to get a drink of white rum to get high off, but [to] become one with the Creator."
This ritual the Church has been able to perform in London and in New York, where there is greater discourse on and respect for human rights. Not so in Jamaica, however. "Historically, Rasta in Jamaica is a criminal, murderer, etc."
(b) The Nyabinghi Elders, Pitfour Tabernacle
The exposition of the Nyabinghi elders begins with the well-known Rastafari cosmological argument that God created all things-plants and animals, and mankind itself, to which He has given knowledge of them. Herbs, according to the Bible, were created for the use of man. But by creating a man-made world, placing it in opposition to God's creation, "man has become God. He starts to dictate to us or to those that take the divine law, [that] lead to the divine law-because God create herbs [and] gave man the knowledge. Who therefore should come between [man and] that plant? You smoke it, I eat it. You drink it. Who cares if they that smoke want to kill themselves, you understand?" The law, as a man-made imposition, ruptures the divinely created relation between man and the natural order.
Of all the herbs, ganja occupies a special, spiritual place in the livity of Rastafari. First and foremost is its place in the ceremonial rituals held five or six times a year, known as a nyabinghi, or "binghi" for short, which takes place in one of the tabernacles dedicated for these purposes. The tabernacle itself and its grounds being sacred, all commercial transactions are taboo for the duration of the binghi, which could last up to twelve days. In preparation, therefore, Rastafari farmers will grow the herb solely for the binghi, which they present as gifts to the High Priest on their arrival. The Priest places some on the altar, to be later used as incense, and stores away the rest, which he dispenses in a centrally located calabash for personal use, or on request.
Apart from the communing among and between brethren, sistren and entire families, two main activities characterise the binghi, one formal at night, the other informal, during the day. The lighting of a large bonfire, whose flames are kept alive for the duration of the binghi, signals the start of the ceremony at sunset. Just about then, the High Priest along with seven priests and seven matriarchs, followed by the children, enters the Tabernacle. After each priest and matriarch has prayed, the High Priest lights the herbs on the altar.
He will see to it that it is kept burning throughout the night, until sunrise. He makes an offering of ganja to each elder and matriarch, which they will smoke at will, while the children start the drumming and chanting. When the time comes for the House to enter and begin the formal binghi, the children withdraw, the drummers take over, the High Priest prays, and the chanting begins, continuing without break throughout the night. This ritual is repeated every night.
The informal activity is the reasoning. It will take place throughout the day. Ras Tafari described it for the Commission as "foundation reasoning," because it is there that Rastafari attitudes to politics, theology, repatriation, reparation are shaped. "So the daily event is much more than the rituals at nights," he concluded. The herb is integral to the reasoning "because herb stimulates that part of the thought that keeps us lucid, open and receptive, bearing in mind that we have one common interest. Before you talk you have got to make sure [that] what you talk does not disrupt the peace or the unity. And so, you have to find your own consciousness. With smoking herb everyone can go within themselves to find their own consciousness."
The herb centrally available, every man builds a little spliff as he desires, but with a self-discipline that is mindful of the needs of others and wary of excess. But where they prefer, the group may send for a chalice. To use the chalice, "you have to be very mature, I would say clean-spirited." One of the senior elders prays over the herb, calling on the name of Haile Selassie I for a blessing on those about to partake, and as the herb is cut up and sprinkled with water, the participating circle chants a psalm. In preparing the herb the elders more often than not mix it with ground tobacco, "which signifies balance. " The pure or ital herb, which a few prefer, makes some people cough a great deal, others to develop a big appetite, or fall asleep. When balanced, however, it enables most "to sit and reason and smoke the whole night without getting overloaded." After the substance is prepared and stuffed into the kochi, another psalm is said, and the pipe lit as someone holds a stick of matches or a piece of paper or corn trash. Each then takes his turn, the chalice moving from right to left, until the matter is exhausted.
Reasoning, declared Brother Tafari, "is what you call the most integral part of the Rastaman-to sit and reason and come into one common interest, whether it is political, economical, business, or about the state of the Jamaican Government." The philosophy behind reasoning posits the Rastaman as the temple of God, within which God dwells. Smoking the herb is in actual fact burning "this fragrant incense within this temple unto Him, the Head, the Divine, the Highest Thought of man," in order to stimulate this inner being through spiritual discourse, putting it above the mundane, the political. The herb, whether in the chalice or spliff, helps them to rise to this level and penetrate knowledge. To cite one example, it is through reasoning under the help of the herb, the Rastaman comes to the knowledge that Moses could not possibly have seen God "from the burning bush", but "from burning the bush." Moses "must have taken a spliff, because there was no God in no bush, because we read the Bible biblically, prophetically, literally, and so on.
So when we look at it, we see it is a cup, a chalice, and when him [Moses] sit up inna himself from a panoramic vision, he sees."
The herb is thus "a sacred part of the Rastaman's life, where he finds his inner self." As he wakes in the morning he may smoke a spliff, say his prayers and be one with himself as he focuses to face the day. He uses herb not for recreation but for meditation, for finding the divinity in man. "We know God is one, but God is also found in man and it is out of that consciousness and presence of God in man that the Rastaman function and go and live day by day, knowing that He is dealing with him and direct[ing] him. And he could sit down with his herb and his consciousness within him. You find that the brethren walk five, ten miles to share that with his brethren-just to burn a spliff or chalice."
(c) Ras Iya, Sister Ita and Sister Wood
In this third excerpt, the Rastafarians explain the meaning of the herb as a part of a way of life. Ras Iya does not smoke the herb, he eats and drinks it. "For me, eating and drinking it is full healing of the people, because it is medicinal control by creation." Using a mortar to beat it into a pulp, if green, or to grind it, if dry, he combines it with other herbs, nuts and honey. As preventive medicine, he mixes it with other spices, such as bissy, nutmeg, garlic, pimento, ginger and orange peel. "That means if one keeps using this thing, no one would sick by accident." In forty years of ingesting it in this way he has never experienced what it means to be sick or in pain.
Sister Ita gives an explanation that could shed light on what many experienced educators describe as a fall off in the motivation of many, sometimes brilliant, students. According to her ganja slows down those who smoke it, but in a beneficial way, taking them out of the world and into the hills, where "you will prefer the breeze of natural creation more than being in town." It induces, she says, a state of mind in which material things become secondary and one begins to see oneself as a part of creation. "Most youths who use herbs are into a more sober, normal lifestyle than the downtown rush. It sobers one to a certain point where it takes you out of the rush, as I say, and it makes you more humble as well, more satisfied with what you have." She describes it as "a kind of escape route for some youngsters", from the pressure of life, by "creat[ing] a space where one can go, like [how] people would go to church. For it is the same way a youngster would go to the weed for." And in this space they become satisfied with the little pennies from their little garden and the bowl of porridge they can afford.
(13) Independent Jamaica Council for Human Rights (1998) Limited
In a presentation to the Commission, the Independent Jamaica Council for Hunan Rights, led by Mr Dennis Daly, Q.C., made a case for removing ganja from the list of dangerous drugs altogether.
The Council based its position on several arguments: the smoking and possession of small quantities of ganja, representing the majority of cases prosecuted, do not infringe the rights of others; arrests and prosecutions are a drain on the justice system; rehabilitation, the objective of sentencing, is seldom realised because the activity is not considered wrong; the rights to liberty, privacy, security and freedom of religion are violated; the right to work, which the cultivation of ganja as a cash crop represents, is infringed; and sentencing does more harm than the use of ganja could cause an offender. The Council recommends that every individual should be able to cultivate, possess, sell, smoke and use ganja, that Rastafarians should not need any special permit to use it for their religious purposes, and that the court should have the power to treat addiction as a medical problem.
(14) Dr Ronald Lampart
A retired Medical Officer of Health, once in charge of the Princess Margaret Hospital, Dr Lampart traced for the Commission the "very sad, sad history" of the prohibition of ganja in the 1930s, charging racial motives in its suppression, since "up to that time marijuana was being smoked by the Blacks and the Hispanics." He read from the biography of Anslinger, the Commssioner of Narcotics who in association with the Hearst-owned press led the campaign, to show the hysterical basis on which the legislation was passed, despite the objections of the American Medical Association. Dr Lampart testified that he worked for ten years with the Coptics, whose members smoked very hard and never once committed any offence other than breaches of the dangerous drugs law. If for no other reason than ganja's proven medicinal value, he argued, it should be decriminalised. His position was that since it could not now be legalised, it should be made a regulated instead of a prohibited substance.
C. VIEWS AGAINST DECRIMINALISATION
The Commission heard from a very small but important minority, who expressed considered views that the law should not be changed. There were people who in their opening depositions opposed any amelioration of the law, but who on being posed questions by members of the Commission conceded that criminalising young people for small amounts or older people for medicinal use was not what they intended. Such positions, however cautious and reserved, are excluded from this Section, being considered part of the general body of opinion in favour of some measure of decriminalisation. We present only those of people who are definitively against it.
The main argument among those in favour of the criminalisation of ganja possession and use is the negative effects they either see or have heard of. These seem to be of three sorts. The first, from their description of the symptoms, would seem to fit the now well-documented personality disorder referred to as ganja psychosis.
Having smoked it, the person loses control of himself, often behaving aggressively. But the aggression may follow only after other personality changes, including uncontrolled levity and paranoia.
In a letter to the Commission two parents wrote of their painful experience of seeing their twenty-two year old son gradually turn into someone they no longer knew. Their first sign of noticeable change was when "he began to appear amused at times when there was no apparent joke." With increased use, a "new, unusually `philosophical' person began to emerge, expounding on irrelevancies," and manifesting mood swings, anger and frustration, "not entirely due to ganja smoking we must add in fairness, but certainly likely to be complicated by it." Then came an aggressive stage, in which he threatened others and verbally and even physically attacked his own friends. At that stage he was smoking heavily. Now twenty-six years old, he remains like this, a member of the family, but one, who, compared to the son they knew, is like a "stranger in our house."
With an experience like this, "we say an emphatic NO to legalization in today's Jamaica", at least not until "a reasonable and proper assessment of the effects of the majority of the many chemicals is made". Ganja use "is a form of chemical Russian roulette. You don't know what its effects are going to be on you! Our son gambled, and lost!"
A second effect would seem to be a sort of amotivational syndrome. The anecdotal evidence brought before the Commission is too repetitive to be ignored. The profile of the victims describes an adolescent male, whose interest in scholarly activity declines fairly sharply, who sleeps a lot in class, achieves below his potential and sooner or later drops out of school. Even those strongly in favour of decriminalisation are aware of this reaction and would like to see a ban imposed on the smoking of ganja by all students of primary and high school age.
The third effect is mainly physical, where the effect of smoking knocks out the person, or causes hallucination. Although the remedy of a quick infusion of sugar and water is well known, the experience is enough to convince some people that ganja is a dangerous substance and to harden their resolve that it should be kept illegal and criminal.
A second argument advanced is that decriminalisation is going to cause ganja to be more widely available than currently exists and more widely used. And if it is more widely used, there is bound to be more schoolboys using it. "Because, if it free, too much ruption, and no behaviour, and dem just come and smoke in front you face." Among the likely consequences, then, according to this thirty-two year old mother, is the loss of respect that young children ought to show adults by not smoking in their presence. In addition, to quote an inner city resident, more people smoking ganja will mean more people that "it sheg up".
A third argument is that ganja is a gateway drug, leading to other substances, particularly crack-cocaine. Those who advance it see a progression from ganja to "seasoned spliffs" (ganja laced with cocaine), to crack-cocaine. Or, they see ganja as part of a "culture" of drugs. "Addiction didn't start from just crack-cocaine, you know, it starts from little small use of drugs-tek a one beer, tek a drink o' rum, smoke a small spliff." Decriminalising the use of ganja seems a small step but it would lead to "a big blown out thing", such as now affect many communities.
Many who are adamant that ganja should remain criminal see smoking as essentially a harmful activity, regardless of the substance. Tobacco is bad enough already, and to add another substance is to make the situation worse. Some would be for criminalsing the smoking of tobacco itself.
(5) Resident Magistrate
The position of a Resident Magistrate of twelve years of service in many parts of Jamaica, including the west and the Corporate Area of Kingston, was put to the Commission. Her Honour exhorted the Commission not to rush to recommend a change in laws "which our forefathers in their wisdom embraced, unless we have clear and sufficient justification for doing so."
She argued that many persons brought before the court, though admittedly a small minority-a mere one or two out of every twenty, displaying violent, anti-social and aggressive behaviour, sometimes to the point of having to be restrained for a period of time, were, according to their own families, acting under the influence of ganja. It would be, she suggested, a backward step to decriminalise ganja, in light of the damage already being done by tobacco, and in light also of the fact that "the jury is still out", where the scientific evidence on ganja was concerned.
Many people alleged that ganja has stress-alleviation properties, but she did not believe changing its legal status on that account was justified.
"Are we therefore saying that we are going to legalise the sedation of our people? Is that what we are saying, so that they don't experience emotional pain, stress, etc.? Should our effort [not] be instead in calling them out of themselves to look to their Creator to find solutions to their problems? All pain is not a bad thing. It can alert us that something is wrong and when we get past our threshold of pain tolerance then we can do something about it, like our forefathers who rose up against slavery. It is not okay for everything to be `irie' and `no problem'. It is not okay. If this nation is going to go forward in this new millennium, we need to deal with the wounds, the psyche of our people-because certainly, the psyche of our people is wounded, and not give them legal justification for putting their pain to sleep."
A better alternative to decriminalisation, she suggests, is what is now presently being envisioned in the setting up of the Drug Court, which will effectively remove drug offenders out of the ordinary justice system and treat them in a rehabilitative way.
In answer to the Commission's question whether preventing the use of small amounts of ganja in specified circumstances was acceptable as a matter of justice when the use of alcohol was not, she maintained that the abuse of other legal substances was enough of a problem already.
In short, her position was for amelioration of the laws, not for decriminalisation.
And to that end she felt that with greater discretion the court could determine whether a certain quantity was being intended for trafficking as against use.
The Church of God in Jamaica (COGJ)
According to its Chairman, "[t]he Church of God in Jamaica does not support the use of ganja privately or publicly. It is a moral position of the Church." Nonetheless, his view is "that if someone is using it privately on the advice of a medical practitioner, then to me it is quite alright." For those caught with the substance, "a first offence should not be seen as an habitual offence", and such persons should be made to undergo counselling instead of punitive sanction.
Commissioner: This lady is inadequately advised that this little ganja that she has in the vial helps some sort of pain. She is caught using it once, using it twice, she is caught using it thrice-now, remember you said that the first should be counselling. Are you suggesting that after the third time it would be just to really prosecute her and let her face the consequences, even if it means serving time in prison?
COGJ Chairman: No, I would not agree for someone, you know, [who] have a little thing in a vial and they really believe it helps the pain, and may well help too, I would not be in favour of criminalising her.
Commissioner: You wouldn't be in favour of criminalising her?
COGJ Chairman: No, I would not.
Commissioner: What about treating it as a misdemeanour then?
COGJ Chairman: Yes, I think there should be some form of sanction, but not as a criminal offence. …
Now, you asked about the lady caught once, twice and three times. Well, I would say, this is the fourth time now, and maybe we should just take the bull by the horn and say people are going to use it, and so we will have to now specify the amounts, the form in which it is used, and so on, rather than the frequency.
Commissioner: That is right.
COGJChairman: Provided we are convinced that it is not going to be dangerous to their health or affect their body. I think we could stratify that and say for this group [it] will not be regarded as a criminal offence."
Upholding the moral position of the Church of God in Jamaica against the use of ganja, the Chairman nevertheless believes that prescribed medical use should be permitted, that first offenders should be treated to counselling instead of criminal sanction, and that habitual folk medicinal use should be treated as a misdemeanour.