Rastafarians challenge dagga law

MASERU – TWELVE Rastafarians have filed an urgent application in the Constitutional Court challenging regulations that outlaw the growing, possession and smoking of marijuana.

The application comes after two Rastafarians were arrested and charged with growing and possessing dagga at their Ha-Matala home.

Lebohang Matlanyane and Boitumelo Lethala, an unmarried couple living under the same roof, argue that the Penal Code Act 2010, Drugs of Abuse Act 2008, and Drugs of Abuse Regulations of 2018 violate their individual liberties.

They are arguing why the law allows the cultivation, possession and use of cannabis for “medical, scientific and related purposes to the exclusion of religious exceptions”.

The two, who are backed by 10 others in the application, want the court to declare whether “the blanket proscription of cultivation, possession and use of cannabis by any adult in his private home space is valid and constitutional”.
Their lawyer, Advocate Mpeli Mohlabula ,said the case was urgent because Matlanyane and Lethala are facing a criminal case in the Maseru Magistrate’s Court.

“Should their trial proceed and they be convicted this case would be a naught and/or hard to prosecute to the prejudice of their liberty and fair trial rights,” Advocate Mohlabula said in the certificate of urgency.

“Violation of liberty is automatically urgent and ongoing,” he said.

He said the remaining 10 applicants also face arrest because they use cannabis on a daily basis in their private homes and in their gatherings as part of their religious customs.

The Rastafarians want the Ministry of Health to provide the court with “evidential and legal proof demonstrating beyond reasonable doubt that the cultivation, possession and use of cannabis is habit-forming, and worth proscribing in all circumstances”.

In his affidavit, Matlanyane said the cannabis tree grew naturally at their home and they had no obligation under the law to uproot it, especially because in terms of their religion the cannabis tree is sacred.

He said when the police uprooted the cannabis trees, some seeds fell on to the ground and are likely to germinate and grow into big shrubs again.

Matlanyane said there will still be no legal obligation for them to uproot the trees, especially because that will be contrary to their religious beliefs, and they will likely be arrested and prosecuted again.

They say their arrest and prosecution violated their constitutional right to freedom of worship, especially when their form of worship does not harm anyone.

They want to be issued with licences to cultivate, possess and use cannabis as an organisation and as individuals for religious purposes.

Their organisation is called the “Rastafari United Front”, part of the worldwide Rastafari religion promoting peace, love, dignity, truth, equality, justice and freedom acknowledging the Bible “as an inspirational and sacred source”.

“Reasoning and meditation are essential elements of the religion,” Matlanyane said.

“Meditation is an individual contemplative practice while reasoning is a collective activity that serves as a form of communion,” he said.

“One of the essential elements of these activities is the use of cannabis which is used at religious gatherings and in the privacy of the follower’s home.”

He said the use of cannabis is central to the Rastafari religion.

“We believe that there is a duty incumbent upon human beings to praise the Creator and that through the use of cannabis one is best able to fulfil this obligation,” he said.

“Thus cannabis is also called incense.”

He called cannabis a fragrant sacrament known as communion which accompanies reasoning.

Cannabis is also thrown on to the altar or placed on the incense holder just as the burning of incense is common in other religions including some Christian churches.

He said other uses include eating cannabis as part of food, drinking it as a tonic, or bathing in it and “these uses are no less sacred”.

“If the cannabis is prone to abuse by us it is equally prone to abuse by those permitted to use it for medical, scientific and related purposes,” he said.

He said even a patient has the ability to knowingly, negligently or accidentally overdose cannabis prescribed by a medical doctor because there are no surveillances, guarantees and safeguards tailored to assure strict compliance with the minimum moderate use of the drug.

He said the current regulations which allow the rich to cultivate, sell and export cannabis while blocking ordinary people from using the same products for religious rites were extremely unfair.

He said just like Christians who burn incense and traditional healers who use mpepa for incense to invoke good spirits and expel evil spirits, in Rastafari religion, they burn cannabis which sends good scent to Jah Rastafari in their ritual gatherings and for sacramental purposes or as incense to invoke the good spirits and expel evil spirits.

“But most importantly, this is also the medium of ascending to the high dimension in order to meet our heavenly Lord, Jah-Rastafari,” he said.

He said Rastafarians worldwide have their own prayer and rituals just like Christians.

A well-known South African who challenged the cannabis proscription laws, Garreth Anver Prince, deposed to an affidavit in support of the case.

Prince, a trained lawyer who has not been admitted to the bar because of his criminal record for possession of cannabis, said criminal laws against possession of cannabis are “immoral in principle, unworkable in practice, and an insult to African dignity and cultural integrity”.

Prince argued that where there are practices that might fall within a general legal prohibition, but that do not involve any violation of the Bill of Rights, the constitution obliges the state to walk the extra mile and accommodate such practice.

“Cultivating a cannabis tree does not come close to limiting the rights of others, and thus requires the state to reasonably accommodate such a practice,” he said.

He said ideally one would love to grow one’s own sacrament as no one would put the sanctity and purity of their prayers or salutations, in the hands of the others.”

He argued that Christians are allowed to grow vineyards full of grapes so that they have wine as their sacrament but Rastafarians are not afforded the same right with cannabis.

“The sacramental nature of wine is not questioned and congregants are allowed to purchase wine,” he said.

He said tobacco use is allowed despite that tobacco is the source of preventable human deaths, yet it is freely available, with very little regulation.

’Malimpho Majoro