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A REPORT OF THE NATIONAL COMMISSION ON GANJA
TO
RT. HON. P.J. PATTERSON, Q.C., M.P.
PRIME
MINISTER OF JAMAICA
PREPARED BY:
Professor Barry Chevannes, Chairman
Reverend Dr. Webster Edwards
Mr. Anthony Freckleton
Ms. Norma Linton, Q.C.
Mr. DiMario McDowell
Dr. Aileen Standard-Goldson
Mrs. Barbara Smith
August 7, 2001
CONTENTS
EXECUTIVE SUMMARY
The National Commission of Ganja, pursuant to its terms of
reference and after a period of exhaustive consultation and inquiry
from November 2000 to July 2001, involving some four hundred persons
from all walks of life, including professional and influential
leaders of society, is recommending the decriminalisation of ganja
for personal, private use by adults and for use as a sacrament for
religious purposes.
The Commission, after reviewing the most up-to-date body of
medical and scientific research, is of the view that whatever health
hazards the substance poses to the individual — and there is no
doubt that ganja can have harmful effects, these do not warrant the
criminalisation of thousands of Jamaicans for using it in ways and
with beliefs that are deeply rooted in the culture of the people.
Besides, there is growing evidence that the substance does have
therapeutic properties.
The Commission interviewed over three hundred and fifty persons
in all the parishes, and received written submission from over
forty. The overwhelming majority of these share the view that ganja
should be decriminalised for personal, private use. Many of them are
personally opposed to the smoking of it. The Commission is persuaded
that the criminalisation of thousands of people for simple
possession for consumption does more harm to the society than could
be done by the use of ganja itself. The prosecution of simple
possession for personal use and the use itself diverts the justice
system from what ought to be a primary goal, namely the suppression
of the criminal trafficking in substances, such as crack/cocaine,
that are ravaging urban and rural communities with addiction and
corrupting otherwise productive people.
Decriminalisation of ganja will require appropriate amendments to
the Dangerous Drugs Act, in particular Sections 7C and 7D.
The Commission, after very careful consideration of the legal
issues involved, concludes that decriminalisation will in no way
breach the United Nations Drug Conventions, which have been ratified
by Jamaica. Especially is this so, when arguments of human rights,
including the proposed Charter of Rights being discussed by
Parliament, are taken into account.
Accordingly, the National Commission is recommending:
- that the relevant laws be amended so that ganja be
decriminalised for the private, personal use of small quantities
by adults;
- that decriminalisation for personal use should exclude smoking
by juveniles or by anyone in premises accessible to the public;
- that ganja should be decriminalised for use as a sacrament for
religious purposes;
- that a sustained all-media, all-schools education programme
aimed at demand reduction accompany the process of
decriminalisation, and that its target should be, in the main,
young people;
- that the security forces intensify their interdiction of large
cultivation of ganja and trafficking of all illegal drugs, in
particular crack/cocaine;
- that, in order that Jamaica be not left behind, a Cannabis
Research Agency be set up, in collaboration with other countries,
to coordinate research into all aspects of cannabis, including its
epidemiological and psychological effects, and importantly as well
its pharmacological and economic potential, such as is being done
by many other countries, not least including some of the most
vigorous in its suppression; and
- that, as a matter of great urgency Jamaica embark on
diplomatic initiatives with its CARICOM partners and other
countries outside the Region, in particular members of the
European Union, with a view (a) to elicit support for its internal
position, and (b) to influence the international community to
re-examine the status of cannabis.
ACKNOWLEDGEMENT
The National Commission on Ganja acknowledges with gratitude the
hundreds of people, old and young, male and female, artisans,
workers, farmers, clerical workers, health, legal and other
professionals, managers, unskilled and unemployed persons,
policemen, clergy, self-employed, and visitors, who thought the work
of the Commission serious and worthwhile enough to be interviewed or
to send written submissions, letters and electronic mail.
We thank the Staff of the Office of the Prime Minister (OPM), in
particular Mrs Deta Cheddar, the Secretary to the Commission, for
facilitating our work, to the OPM in Montego Bay, and to the Local
Government Officers and Social Development Commission staff in the
parishes, who provided logistic and other support. The Jamaica
Information Service made invaluable contribution by bringing the
work of the Commission to the general public. Our thanks go as well
to the various members of the communications media, who kept alive
public interest in the work of the Commission.
Our thanks are extended also to Chantal Ononaiwu and Natalie
Ebanks for providing summaries of the laws and oral depositions,
respectively, and to Ethnie Miller and Sonjah Stanley for surfing
the Internet. Jacqui Getfield, an Assistant to the Dean of the
Faculty of Social Sciences at the University of the West Indies,
Mona, worked closely with the Chairman. We thank her and other
members of the Dean’s Office for their support. A special thanks to
Dr Stephen Vasciannie and Lord Anthony Gifford for preparing briefs
at the Commission’s request.
Without the verbatim transcripts provided by the
team of stenowriters led by Mrs Lilleth Haughton, the Commission’s
report would have been seriously handicapped. Special thanks,
therefore, to Mrs Winnifred Mannaham and Ms Marjorie Goodgame, and
to Miss Elaine Walker, Mr Garfield McKoy, Mrs Yvonne Jenkins, Mrs
Clementina Barrett, Mrs Dorothy Ramsay and Ms Ursela Farquharson.
Professor Barry Chevannes, Chairman
Reverend Dr. Webster Edwards
Mr. Anthony Freckleton
Ms. Norma Linton, Q.C.
Mr. DiMario McDowell
Dr. Aileen Standard-Goldson
Mrs. Barbara Smith
PREFACE
For well over a hundred years, ganja has become the subject of
considerable debate and investigation, beginning with the much
celebrated India Hemp Commission of 1894, which was followed by no
fewer than ten landmark Commissions and studies. Notable among these
was the Commission of scientists and experts set up by Mayor La
Guardia of New York in 1938, which took six years to complete its
Report. Despite the favourable reviews of both these Commissions,
yet another study was commissioned by the United States National
Institute of Mental Health, subsequently renamed the National
Institute of Health, on the long term effects of cannabis use. Led
by Dr Vera Rubin of the Research Institute for the Study of Man and
Professor Lambros Comitas of Columbia University, the study
assembled a panel of United States and Jamaican scientists from the
University of the West Indies, and carried out their extensive study
in Jamaica from in 1970 and 1971. This study did not find any
negative effect that might be attributable to chronic ganja use, but
although it provided a basis for some States in the United States to
ameliorate their positions, the debate has not only continued but
intensified, in the wake of considerable increase worldwide in the
smoking of cannabis, especially in the North Atlantic countries.
Then in 1977 the Jamaican Government set up a Joint Select
Committee "to consider the criminality, legislation, uses and abuses
and possible medicinal properties of ganja and to make appropriate
recommendations." The Committee while rejecting legalisation, on
account of Jamaica’s obligation to the 1961 Convention, unanimously
concluded that "[t]here was however a substantial case for
decriminalizing the personal use of ganja." It recommended specific
amelioration of the law, and that there should be "no punishment
prescribed for the personal use of ganja up to a quantity of 2 ozs.
by persons on private premises." It further recommended that ganja
be lawfully prescribed for medicinal use.
The fact that these recommendations have been shelved, and that
the work of reputable scientists have been ignored would lead the
sceptic to suggest that that could well be the fate of the present
Commission. Contributing in no mean way to the scepticism is the
factual consideration that the original proscription against ganja
was never based on medical evidence, but now medical evidence is
being sought to justify its continued ban.
In recommending decriminalisation for personal use, we do not
share the pessimism.
After nine months of consultation and reflection, visits to every
parish and hearings amounting to 3776 pages of transcriptions, the
Commission is convinced that its recommendations will not go the way
of those of all previous commissions and studies, notwithstanding
the difficulties that will confront the Government due to Jamaica’s
ratification of UN Conventions that seek to prohibit cannabis,
except for research and medical-scientific purposes. The reason for
the Commission’s sanguineness is what it has uncovered as an
overwhelming national and growing international consensus that
cannabis should be decriminalised, or at least differentiated from
other banned substances.
Nationally, the consensus reaches across the lines that once
divided us historically, and that continue to divide us socially, to
wit party, class and religion, where none seemed to have existed
before, even at the time of Joint Select Committee twenty-five years
ago.
Internationally, hardly a week goes by without some intimation of
changing attitudes to cannabis. In many States of the United States
of America the use of cannabis for medical purposes has been
declared legal. Earlier this year Health Canada, Canada’s Ministry
of Health, issued regulations to create a government-regulated
system for using cannabis for medical purposes, the first country to
do so. This action has been quickly sanctioned by Parliament which
now makes cannabis legal in Canada for terminally ill patients and
those suffering certain painful debilities. In June 2001 the British
press reports on the launch of a pilot scheme in London in which
cannabis offenders are simply warned and sent on their way, instead
of being cautioned, arrested, charged and tried. A British
Parliamentary Committee is soon to review the matter. British
practice lags far behind those of the Dutch and of a growing number
of other European countries which have simply decriminalised the
personal use of small quantities of cannabis. Portugal, according to
press reports, has taken the very bold step of decriminalising the
use of all banned substances. An international momentum is clearly
underway.
The Report seeks to capture the extent of this
national consensus. This is set out in Chapter 3, the main body of
the report, but not before a discussion of the methodology (Chapter
1) by which we have undertaken our work and arrived at our
conclusions, and a review of the most up-to-date scientific reports
(Chapter 2). Having presented this, the Report turns to consider the
legal and political implications of our general recommendation, in
Chapter 4. One critical issue raised by many experts and witnesses
is the attitude of the United States, and this too is taken into
account in the context of discussion on our international treaty
obligations. The Report concludes with a summary of the
recommendations, in Chapter 5, which is followed by the Appendices.
TERMS OF REFERENCE
Whereas there has been long and considerable debate in Jamaica
regarding the decriminalisation or non-decriminalisation of ganja in
well-defined circumstances and under specific conditions,
Whereas differing views have been urged on the advisability of
allowing the possession of specified quantities of ganja, its
permissible use by adults within private premises, while continuing
to prohibit its smoking by juveniles or by anyone on premises to
which the public ordinarily has access,
Whereas some Groups have proposed that its use as a sacrament for
religious purposes ought to be sanctioned,
Whereas there is a body of scientific opinion which attests to
its medicinal qualities and clinical value,
Whereas serious questions have been raised as to its impact on
health, on patterns of social behaviour, its implications for the
economy and possible effects relating to crime and security,
Whereas there are international treaties, conventions and
regulations to which Jamaica subscribes that must be respected,
In consideration thereof a National Commission is hereby
established, with the following of Reference:
- To receive submissions or memoranda, hear testimony,
evaluate research and studies, engage in dialogue with relevant
interest Groups, and undertake wide public consultations with
the aim of guiding a national approach.
- To indicate what changes, if any, are required to existing
Laws or entail new legislation, taking account of the social,
cultural, economic and international factors.
- To recommend the diplomatic initiatives, security
considerations, educational process and programme of public
information which will need to be undertaken in light of
whatever changes may be proposed.
- To consider and report on any other matter sufficiently
relating to the foregoing.
- To make such interim reports as it may deem fit and a final
Report within a period of nine months from the first sitting.
September 2000
CHAPTER 1
METHODOLOGY
- Guided by our Terms of Reference the National Commission of
Ganja (NCG) visited every parish capital except one, in addition
to several other townships. Exception was Black River, the capital
of St Elizabeth, substituting instead, on advice, the market town
of Santa Cruz and the seaside village of Treasure Beach.
- Hearings were of two sorts. The first was in camera, in
order to provide those who wished the privacy to state their own
views in confidence, and without fear of intimidation,
recrimination or exposure.
- The Commission also held hearings in public, in squares,
markets and street corners of inner city communities and rural
townships, in an effort to reach people who might not have been
aware of the Commission or its presence, or who, though aware
would otherwise not bother to respond.
- Aware that a Commission set up to look into the
decriminalisation of ganja at the present time would necessarily
attract more of those in favour of changing the laws than those
against any change, and fearing that in the midst of a vocal
majority in favour of decriminalisation those against any
amelioration might be inclined to be reticent, the Commission made
it a special point of inviting the views of those it believed held
conservative positions. Thus, apart from declared Christians
interviewed as part of the general public, the Commission
interviewed members of the Linstead Baptist Church, the President
and students of the United Theological College of the West Indies,
His Grace the Archbishop of Kingston, the Lord Bishop of Jamaica,
the Chairman of the Church of God in Jamaica, the Reverend Dr
Garnet Brown, and two theologians of St Michael’s Seminary.
- Written submissions were also received voluntarily from many
persons, most of them living in distant parts of Jamaica or
abroad, by post or electronic mail.
- Scores of organisations and professionals were targeted and
invited to submit. While no more than 40% of organisations
responded, due largely, we believe, to the fact that most had not
worked through a position, those that did were of enormous import
to the Commission.
- The Commission also undertook a literature review, focusing on
the most up-to-date summaries, owing to the voluminous corpus of
medical and scientific studies that have been on-going all over
the world in the course of the last twenty-five years.
- A comprehensive review of the relevant laws and United Nations
Conventions was made, and expert advice sought from legal
luminaries.
- Finally, the Commission availed itself of the opportunity of
one of its members on a business trip to The Kingdom of The
Netherlands to familiarise itself with practices in that country,
one of a few in Europe to have de facto decriminalised and
regulated cannabis use in small quantities.
CHAPTER 2
THE MEDICAL-SCIENTIFIC LITERATURE
INTRODUCTION AND BACKGROUND
Cannabis sativa plant is called ‘ganja’ in India and Jamaica,
‘marijuana’ in North America, 'hif’ in North Africa and ‘dagga’ in
South Africa. The plant produces a resin often referred to as
‘hashish’.
As early as 2737 BC the Chinese Emperor Sheng Nun described
cannabis as a superior herb and for centuries it was embraced
unreservedly (Cole 2000). There are records of its use in Arabic
medicine dating back to the 8th century. Cannabis sativa
was used for over a thousand years as a textile and medicine in
Arabia, Mesopotamia, Persia, Egypt, China, India and extensive areas
of Europe (Lozano 2001). In 1901 a United Kingdom Royal Commission
concluded that cannabis was relatively harmless and not worth
banning (Cole 2000).
Cannabis sativa was classified in the 18th century by
Carl von Linne. It was first admitted to western pharmacopoeias in
the 1800s. In 1839 W.B. O’Shaghnessy at the Medical School of
Calcutta observed its use in the indigenous treatment of various
disorders and found that tincture of hemp was an effective
analgesic, anticonvulsant and muscle relaxant (Grinspoon 2000). It
was included in the British, United States and Indian Pharmacopoeias
up to 1932, 1941 and 1966, respectively.
Ganja was brought to the West Indies in the middle
19th century by East Indian labourers who came primarily
to Guyana, Trinidad and Jamaica. Up until the early years of the
20th century it was widely used as a folk medicine and
did not appear to constitute a major social problem.
Beginning in the 1920s, interest in cannabis as a recreational
drug grew. During the 1960s and 1970s there was a large increase in
the use of smoked cannabis as an intoxicant in the USA and Europe.
Starting in the 1980s there has been renewed interest in the
potential medicinal uses of cannabis and its derivatives.
RESEARCH
There have been many commissions over the years looking at the
effect of cannabis. Some of these are:
- Indian Hemp Drug Commission
|
1894 |
|
1924 |
- LaGuardia Commission Report
|
1944 |
- The British Wooten Report
|
1969 |
- The Canadian La Dain Commission Report
|
1970 |
- National Commission on Marihuana and Drug Abuse (USA)
|
1972 |
- The Dutch Baan Commission
|
1972 |
- Commission of the Australian Government
|
1977 |
- National Academy of Science Report (USA)
|
1982 |
- Report by the Dutch Government
|
1995 |
- Report to the House of Lords (Britain)
|
mid 1990s |
There is also extensive research at a number of levels. The use
of cannabis engenders strong feelings and many of the research
reports reflect this. There is a strong body of opinion that sees
cannabis as harmful and advances 'scientific evidence’ to prove
this. On the other hand there is an equally strong body of opinion
that feels that cannabis has been unnecessarily vilified and that it
has relatively minor harmful effects and great potential for
medicinal use. This group also advances ‘scientific evidence’ to
prove its point. It is therefore necessary to analyse the
‘scientific evidence’ bearing in mind the source and especially to
note those items agreed on by both groups and done by independent
groups such as the World Health Organization (WHO).
EPIDEMIOLOGY OF GANJA USE IN JAMAICA
Ganja is widely used for recreational, medicinal (folk medicine)
and religious purposes in Jamaica. The 1990 Carl Stone study among
respondents age 15 and over island wide showed 47% in the
Metropolitan areas and 43% in the rural areas who had ever used
ganja. The usage was higher among males than females but cut across
all social, educational and economic groups. In the upper income
group 46% of males and 25% of females had tried ganja, the figures
for the middle income group were 33% of males and 10% of females,
and for the lower income group 52% of males and 18% of females.
A national lifestyle survey carried out by the Ministry of Health
in 1993 reported that among Jamaicans 15 — 49 years old 37% of the
men and 10% of the women had ever used ganja.
A 1997 survey by Ken Douglas among 8,000 in-school adolescents,
grades 9 to 13, found 27% had had lifetime ever-use of smoked ganja,
a significant increase from the 20% reported in a 1986 school study.
In the 1997 study 20% reported ever use of ganja tea. Turning to
current use over the preceding 30 days, the study showed 8% had
smoked ganja and 6% had had ganja tea.
Recent data coming out of Treatment and Rehabilitation Centres
published in the National Council on Drug Abuse Infosum for
October 2000 shows that some of the clients admitted with a history
of smoking ganja had their first use as early as between 5 and 9
years old.
Of 282 clients who went into treatment for a ganja habit in
1999-2000, 4% started using the drug from age 5 to age 9, 26% from
age 10 to age 14 and 3% from age 15 to age 19, that is one-third of
them started smoking ganja at the age of 19 or below. These figures
show the widespread use of ganja in Jamaica and the early age of
initiation.
Other studies have sought to look at any link between traffic
accidents, trauma and drug use. The role of alcohol is well
recognised but the possible causative role of ganja is less clear.
Francis et al. (1995), in a pilot study of alcohol and
drug-related traffic accidents and deaths in two Jamaican parishes,
found evidence of alcohol intake in 77.5% of fatalities and 35.5%
had alcohol levels above the legal acceptable limits; 22.5% of road
traffic fatalities tested positive for cannabis and 3.2% for
cocaine.
McDonald et al. (1999) took sera and urine samples from
111 trauma patients seen at the Accident and Emergency Department of
the University Hospital of the West Indies, Jamaica, over a
three-month period. Alcohol levels were tested in the blood and the
urine was tested for metabolites of cannabis and cocaine. Results
showed 38% of patients negative for any drug, 62% positive for one
or more drugs; 15% for alcohol only, 15% for alcohol and cannabis,
25% for cannabis only, 5% for cannabis and cocaine, 1% for cocaine
only, and 1% for all three.
Many patients admitted to the psychiatric services on the island
report ganja use. For example, approximately 60—80 % of males
admitted to the Cornwall Regional Hospital Acute Psychiatric Unit in
1999 gave a history of ganja use, although this was not necessarily
the reason for their admission (Abel 2001).
PHARMACOLOGY
Cannabis sativa contains 400 known chemicals. The family of
chemically related 21-carbon alkaloids found uniquely in the
cannabis plant are known as cannabinoids. There are sixty different
cannabinoids. One of these, delta-9- tetrahydrocannabinol
(THC), is the most abundant and accounts for the intoxicating
properties of cannabis. THC dissolves readily in fat but not in
water. When smoked, THC is rapidly absorbed into the blood stream,
giving perceptible effects within minutes. When taken by mouth peak
effect may not occur for hours but last much longer. The THC also
persists in the brain longer than in the blood, so that
psychological effects persist for some time after the level of THC
in the blood begins to fall.
THC is widely distributed in fatty tissue of the body, whence
there is slow release, thus producing low levels of THC in the blood
for several days after a single dose, although there is no evidence
that any significant pharmacological effects persist for more than
4-6 hours after smoking and 6-8 hours after ingestion.
It is now recognised that THC interacts with a naturally
occurring system in the body, known as the cannabinoid system. THC
takes effect by acting upon cannabinoid receptors. Two types of
cannabinoid receptors have been identified, namely the CB1 receptors
and the CB2 receptors.
CB1 receptors are present on nerve cells, in the brain and spinal
cord as well as in some peripheral tissues; CB2 receptors are found
mainly in the immune system and are not present in the brain
(NCDA1998).
The CB1 receptors are distributed differentially in the various
regions of the brain, in a pattern that is similar throughout a
variety of mammalian species, including humans. Most of the
receptors are in the basal ganglia, cerebellum, cerebral cortex and
hippocampus. A rough correlation appears to exist between the
distribution and some of the effects of cannabis. For example,
binding sites in the hippocampus and cortex are linked to the subtle
effects of cannabis on cognitive function, while those in the basal
ganglia and cerebellum may be associated with cannabis-produced
ataxia (WHO 1997).
From animal experiments, CB1 receptors seem to mediate pain
relief, memory impairment, control of movements, lowering of body
temperature and to reduce gut activity. It is also assumed that they
mediate the intoxicant effects of THC (NCDA 1998).
Little is known about the physiological role of the more recently
discovered CB2 receptors, found in macrophages (white blood cells)
in the spleen, but they seem to be involved in the modulation of the
function of the immune system.
The presence of this cannabinoid system has implications for
further research into the effects of cannabis on the body and the
potential beneficial uses of cannabis.
EFFECTS OF CANNABIS
Acute effects
A state of euphoric intoxication is induced. There is mild
intoxication, relaxation, increased sociability, heightened sensory
perception and increased appetite. In higher doses acute effects can
include perceptual changes, depersonalisation and panic (WHO
1997).
Other behavioural changes associated with cannabis intoxication
include loss of time sense, sensation of ‘high’, anxiety, tension
and confusion (Matthew et al. 1993).
Intoxication with cannabis leads to slight impairment of
psychomotor and cognitive function, which is important for those
driving a vehicle, flying an aircraft or operating machinery. Subtle
impairment of cognitive function may persist for twenty-four hours.
There is sufficient consistency and coherence in the evidence
from experimental studies and studies of cannabinoid levels among
accident victims to conclude that there is an increased risk of
motor vehicle accidents among persons who drive when intoxicated
with cannabis (WHO, 1997). Cannabis can impair various components of
driving behaviour, such as braking time, starting time, and reaction
to red lights or other danger signals. However, persons under the
influence of cannabis may perceive that they are impaired and where
they can compensate, they do so.
Such compensation may not be possible when they are presented
with unexpected events and hence the risk of accidents remains
higher following cannabis use (WHO 1997).
A study carried out on the effects of cannabis on aircraft pilot
performance showed that cannabis use impaired flight performance at
0.25, 4, 8, and 24 hours after smoking. These results suggest that
human performance while using complex machinery can be impaired as
long as 24 hours after smoking as little as 20mg of THC, and that
the user may be unaware of the drug’s influence (Leirer et
al. 1991).
There is a short-term effect on the cardiovascular system. There
can be an increase in the heart rate and lowering of the blood
pressure. This would be of concern in persons with ischaemic heart
disease (angina).
A single dose of cannabis for an inexperienced user, or an
over-dose for a habitual user, can sometimes induce a variety of
intensely psychic effects, including anxiety, panic, paranoia and
feelings of impending doom. These effects usually persist for only a
few hours.
Signs of intoxication include blood-shot eyes, lack of
coordination, enhanced sensations and perceptions, increased
appetite, dry mouth, possible dizziness and nausea.
Effects on the Brain–Psychiatric/Psychological
Cannabis (THC) is said to affect the neurons (brain cells) in the
information processing section of the hippocampus, the part of the
brain that is responsible for memory and the integration of sensory
experiences with emotion and motivation.
Literature on both sides recognise that short-term memory can be
affected in the acute phase of ganja intoxication. This does not
seem to affect recall of previously learned items but does appear to
interfere with the learning of new material. Researchers note great
variation in results to cognitive testing and point out that
individual response to marijuana varies considerably (Zimmer and
Morgan 1997).
Marijuana’s effect on cognition in the real world seems to depend
on the time and place people choose to use marijuana and the tasks
they are performing. In the laboratory, marijuana temporarily
impairs short-term memory and learning. In real world structured
settings, such as the classroom, it is likely to have similar
effects (Zimmer and Morgan 1997).
Several studies have shown that cannabis appears to increase the
perceived rate of the passage of time. Cannabis is also known to
impair psychomotor performance in a wide variety of tasks, such as
handwriting and tests of motor coordination.
There is less agreement about the long-term effects of ganja on
the brain. Some authorities state that chronic marijuana use
interferes with the interplay of chemical and electrical impulses
between brain cells, causes shrinkage and death of brain cells.
However, other authorities point out that the experiments showing
death of brain cells were carried out in animal models exposed to
concentration of THC about 100-fold higher than even a heavy
marijuana user would be exposed to. It is stated that in other
studies exposing monkeys to amounts equivalent to 4-5 marijuana
cigarettes a day for a year these findings could not be replicated
(Zimmer and Morgan 1997). The early claims of gross anatomical
changes in the brains of chronic cannabis users have not been
substantiated by later studies with high-resolution computerized
tomography, in either humans or primates (Rimbaugh et
al.1980; Hannerz and Hindmarsh 1983).
It is felt that learned behaviours, which are dependent on the
hippocampus, deteriorate after chronic exposure to THC and that
chronic abuse of cannabis is associated with impaired attention and
memory. It is also reported that prenatal exposure is associated
with impaired verbal reasoning and memory in pre-school children
(Abel 2001).
Zimmer and Morgan point out that during the past thirty years,
researchers have found, at most, minor cognitive differences between
chronic marijuana users and non users, and the results differ
substantially from one study to another. Based on this evidence, it
does not appear that long-term marijuana use causes any significant
permanent harm to intellectual ability. Even animal studies, which
show short-term memory and learning impairment with high doses of
THC, have not produced evidence of permanent damage.
Studies (Fletcher et al. 1996) have shown that the
long-term use of cannabis leads to subtle and selective impairment
of cognitive functioning. Prolonged use may lead to progressively
greater impairment, which may not recover with cessation of use for
at least 24 hours (Pope and Yurgelum-Todd 1995) or 6 weeks (Solowij
et al. 1991), and which could potentially affect functioning
in daily life.
Not all individuals are equally affected. The basis for
individual differences needs to be identified and examined. There
has also been insufficient research to address the impact of
long-term cannabis use on cognitive functioning in adolescents and
young adults, and on different age groups and genders (WHO 1997).
The Diagnostic Statistical Manual IV for classification of
disorders and diseases recognises the following conditions:
Cannabis Dependence Cannabis Abuse Cannabis
Intoxication Cannabis Induced Psychotic Disorder Amotivational
Syndrome Cannabis Induced Anxiety Disorder Cannabis Induced
Mood Disorder.
Cannabis dependence is seen as compulsive, habitual use and not a
physiological dependence or addiction. Tolerance to most of the
effects of cannabis has been reported in individuals who use
cannabis chronically (Abel 2001).
Studies conducted over many decades in a variety of settings have
found that when high-dose marijuana users stop using the drug,
withdrawal symptoms rarely occur and when they do, they tend to be
mild and transitory (Zimmer and Morgan 1997). The presence of
withdrawal symptoms is one of the markers for addiction. It is
therefore felt that cannabis is a weakly addictive drug but does
induce dependence in a significant minority.
However, in the WHO report, Cannabis: a health perspective and
research agenda, it is stated that clinical and epidemiological
research has clarified the status of the cannabis dependence
syndrome. A reduced emphasis on the importance formerly attached to
tolerance and withdrawal symptoms in diagnostic criteria for
dependence has removed a major reason for scepticism about the
existence of a cannabis dependence syndrome.
Research using standardised diagnostic criteria has produced good
evidence of a cannabis dependence syndrome that is characterized by
impairment, or loss of control over use of the substance, cognitive
and motivational handicaps which interfere with occupational
performance and are due to cannabis use, and other related problems
such as lowered self-esteem and depression, particularly in
long-term heavy users. As with other psychoactive substances, the
risk of developing dependence is highest among those with a history
of daily cannabis use. It is estimated that about half of those who
use cannabis daily will become dependent (Anthony and Helzer
1991).
Since tolerance and withdrawal symptoms are still widely regarded
as diagnostic criteria of substance dependence, it is worth noting
that there is abundant experimental evidence of tolerance to many of
the effects of cannabis. There is not yet universal agreement about
the production of a withdrawal syndrome (WHO 1997).
Apart from the acute psychic effects noted previously, cannabis
intoxication in some instances may lead to a longer lasting toxic
psychosis involving delusions and hallucinations that can be
misdiagnosed as schizophrenic illness. This is transient and clears
up within a few days of termination of cannabis use.
It is well established that cannabis can exacerbate the symptoms
of those already suffering from schizophrenic illness and may worsen
the course of the illness (NCDA 1998; WHO 1997).
The occurrence of an "amotivational state" in long term heavy
cannabis users with loss of energy and the will to work has been
postulated. However some feel that this represents nothing more than
an ongoing intoxication (NCDA 1998).
Studies of high school students show that heavy marijuana use is
associated with academic failure. Heavy marijuana users have lower
grades and lower career aspirations than occasional users or
nonusers. Heavy marijuana users are also more likely than occasional
users or nonusers to drop out of school before graduation. However,
most high school students who use marijuana heavily were performing
poorly in school before they began using marijuana. Most have a
number of emotional, psychological, and behavioural problems, often
dating back to early childhood (Zimmer and Morgan 1997). It is
therefore possible that the underlying problems lead to the
marijuana use rather than the marijuana being the cause of all the
problems. When studies control for other factors marijuana use makes
no significant contribution to high school student’s academic
performance (Zimmer and Morgan 1997).
It is noted that there are a number of factors that influence the
effects cannabis may have on an individual. These include:
- Potency of the cannabis (the THC content of marijuana is said
to have increased from the 1960s to the present time and varies
among different plants)
- The route of administration
- The smoking technique
- The dose
- The setting
- The user’s past experience
- The user’s unique biological vulnerability to the effects of
cannabis.
Effects on other organ systems
Respiratory System
Tobacco smoking causes a number of lung diseases, including
chronic bronchitis, emphysema and cancer. Except for their active
ingredients–nicotine and cannabinoids–bacco smoke and marijuana
smoke are similar with a greater concentration of the carcinogenic
benzathracenes and benzpyrenes in marijuana smoke.
In the United States, marijuana smokers typically inhale more
deeply and retain smoke in their lungs longer than tobacco smokers.
As a result, marijuana smokers deposit more dangerous material in
the lungs each time they smoke. However it is said to be the total
volume of inhaled toxic material over time that matters and not the
amount inhaled per cigarette. It is further postulated that even
heavy marijuana smokers never reach the smoke consumption levels of
heavy tobacco smokers (Zimmer and Morgan 1997).
Theoretically, the risks to the respiratory tract of smoking
marijuana are similar to those of tobacco smoking. In human studies,
it has been shown that the principal respiratory damage caused by
long-term cannabis smoking is an epithelial injury of the trachea
and major bronchi (WHO 1997). The alveolar macrophage, the key cell
in the lung’s defence against infection, has been shown to be
impaired by cannabis smoke in both animal and human studies (WHO
1997). Studies suggest that regular cannabis consumption reduces the
respiratory immune response to invading organisms. Further, serious
invasive fungal infections as a result of cannabis contamination
have been reported among individuals who are immuno-compromised,
including a series of patients who were affected by AIDS (Denning
et al. 1991).
These findings suggest that persistent cannabis consumption over
prolonged periods can cause airway injury, lung inflammation, and
impaired pulmonary defence against infection. Epidemiological
studies that have adjusted for sex, age, race, education, and
alcohol consumption, suggest that daily cannabis smokers have a
slightly elevated risk of respiratory illness compared to
non-smokers.
Reproductive System
Studies, including a Jamaican study, have shown lowered sperm
count and motility in ganja smokers compared to non-smokers (NCDA
2001). There is no demonstrable difference in testosterone level or
levels of female sex hormones. In neither male nor female have
researchers produced evidence of permanent harm to reproductive
function from either acute or chronic marijuana administration.
There is no convincing evidence of infertility related to marijuana
consumption in humans (Zimmer and Morgan 1997).
Results from research looking at effects of cannabis smoking in
pregnancy vary. Some reports point to an increased risk of early
foetal death, decreased foetal weight and premature birth. In animal
studies, THC has been shown to produce spontaneous abortion, low
birth weight and physical deformity–but only with extremely high
doses, only in some species of rodents, and only when the THC is
given at specific times during pregnancy. Studies with primates show
little evidence of foetal harm from THC (Zimmer and Morgan 1997).
There is reasonable evidence that cannabis use during pregnancy
impairs foetal development, leading to a reduction in birth weight,
perhaps as a consequence of shorter gestation, and probably by the
same mechanism as cigarette smoking, namely, foetal hypoxia (WHO,
1997).
There is ongoing research, for example the Ottawa Prenatal
Prospective Study, looking for possible effects of prenatal exposure
to cannabis on later development. So far there is no consistent
evidence of any significant difference in the development of
children exposed to prenatal cannabis as against those not so
exposed. The study suggests that any long-term consequences of
prenatal exposure to the child are very subtle. (Fried 1980; Fried
1995).
Another study suggests that in utero exposure to cannabis can
affect to some degree the mental development of the growing child
(Day et al. 1994).
MEDICINAL USES OF CANNABIS
The medicinal uses of cannabis are well documented in the modern
scientific literature. Using either smoked cannabis or extract
preparations from the cannabis, researchers have conducted
controlled studies.
The broad range of potential therapeutic applications of
cannabinoids reflects the wide distribution of cannabinoid receptors
throughout the brain and other parts of the body. The possibility of
distinct subtypes of cannabinoid receptors and the probable
development of new compounds to bind selectively to these receptors,
as either agonists or blockers, may well open the door to the
selective treatment of a number of disorders.
Areas in which cannabis has been shown to have therapeutic use
are:
- Reducing nausea and vomiting
- Stimulating appetite
- Promoting weight gain
- Diminishing high intraocular pressure from glaucoma
There are also reports of use of cannabis for:
- Reduction of muscle spasticity from spinal cord injuries
- Reduction of muscle spasticity and tremors in multiple
sclerosis
- Relief of migraine headaches
- Depression
- Seizures
- Insomnia
- Chronic pain
Although an anti-emetic effect of THC had been suggested as early
as 1972, the first report of a placebo-controlled trial came in 1975
from one of the top oncology centres in the USA (Hollister 2001). An
oral preparation, dronabinol, has been used especially in cancer
chemotherapy patients for control of the side effects of nausea and
vomiting. Although smoked marijuana is often preferred by the
patients, whether it is superior to orally administered THC has not
been tested in controlled comparisons (Hollister 2001). Smoked
cannabis is more immediate in its effects than oral THC. Cannervert
is also available for use in motion sickness.
The use as an appetite stimulant is of particular use in cancer
and AIDS patients. In the USA, approximately 16 per cent of the
total AIDS population suffer from the progressive anorexia and
weight loss known as AIDS wasting syndrome. An open pilot study of
dronabinol in patients with AIDS-associated wasting syndrome showed
it effective in increasing weight as well as being well tolerated
(Hollister 2001).
The international literature recognises the role cannabis can
have in reducing intraocular pressure in glaucoma. Local
researchers, Professor Hon. Manley West and Dr. George Lockhart
developed the extract Cannasol, which is now registered and used in
the treatment of glaucoma. Another product, Asmasol, was developed
based on the Cannasol research, for the treatment of cough, cold and
bronchial asthma. There was also work done by the late Professor Sir
John Golding and Professor West towards developing a protocol for
use of a cannabis preparation in the control of pain in terminally
ill patients (NCDA 1998).
In Europe, cannabis has been anecdotically reported to help in
the symptoms associated with multiple sclerosis. Published trials
have shown some positive results especially for spasticity, the pain
associated with spasticity, tremor and urinary bladder control (NCDA
1998). An antispasmodic action of THC was confirmed by the first
clinical study (Petro and Ellenberger 1989).
There is undoubtedly need for much further research into the
potential of the medicinal use of cannabis and its extracts.
CONCLUSION
Information on the effects of cannabis on physical and
psychological functioning has increased greatly, as has knowledge of
the extent and patterns of use. However, there is still a need for
further research in several important areas, including clinical and
epidemiological research on human health effects, chemistry and
pharmacology, and research into the therapeutic use of cannabinoids.
Moreover, there are important gaps in knowledge about the health
consequences of cannabis use (WHO, 1997).
There needs to be continued objective research and ongoing public
education about all aspects of Cannabis sativa use.
CHAPTER 3
THE FINDINGS
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.
(2) 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.
(3) 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.
(4) inequity
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.
(5) 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.
crack/cocaine
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.
(1) 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 carried by people with
personal experience of the substance. All the experts, and indeed
all but a very few of the over two 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.
(2) Counselling Psychologist
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.
(3) CODAC
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.
(2) 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.
(3) 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.
- 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
Archibishop 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.
(a) 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.
(1) ill-effects
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.
(2) proliferation
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 wil mean more people that "it
sheg up."
(3) gateway
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 toseasoned 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.
(4) smoking
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 smallamounts 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.
(6) 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.
COGJ Chairman: 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.
THE LEGAL AND INTERNATIONAL CHALLENGE
Based on the foregoing, bearing in mind its terms of
reference, and weighing carefully the issues raised and the
arguments presented to us, the Commission has come to the unanimous
conclusion that ganja should be decriminalised for adult personal
private use.
Its criminal status cannot be morally justified, notwithstanding
the known ill effects it causes in some people. It contravenes
natural justice, seeing that it has been, like other natural
substances, a part of the folk culture in Jamaica for decades prior
to its criminalisation, a part of recognised medical practice for
centuries, and a part of herbal lore for millennia in other parts of
the world. Nor was its criminal status first recommended by
scientific evidence, in any way remotely resembling the
proliferation of research, some of it of questionable value, now
being called on to justify its current status. Totally ignored is
the centuries of accumulated folkways, which through common sense
and native wisdom make up for what they lack in modern scientific
rigour, and have developed their own modes of uses and limitations,
providing valuable clues to well-being for the scientific
community.
The Commission takes the view that, ironically, the criminal
status of ganja poses a serious danger to society. By alienating and
criminalising hundreds of thousands of otherwise law-abiding
citizens, and by making the State in their view an instrument of
their oppression rather than their protection, the law and its
prosecution create in them disrespect for the rule of law. When the
rule of law goes, anarchy sets in. Any law that brings the rule of
law into disrepute is itself thus a threat to the stability of
society.
Thirty years ago the eminent jurist, the late Aubrey Fraser,
concluded that cannabis use could not be controlled by the punitive
sanctions of the law. Thirty years on, from all the available
evidence ganja use not only has spread, but has become defiantly
more open. The justice system is severely challenged, its manpower
diverted from focusing on more serious crimes, and its material
resources consumed in the prosecution of a war that it cannot win.
The inequity that governs the legalisation and control of tobacco
and alcohol, but the illegality of ganja cannot be rationally
justified, and is indeed iniquitous, given that from all available
medical evidence it is the least deleterious and harmful of all.
Thousands of people die from cirrhosis of the liver due to alcohol
abuse and from lung cancer caused by excessive, chronic smoking of
tobacco, but from our research and the evidence presented to the
Commission not a single death has ever been recorded from the use or
abuse of cannabis.
This is not to say that ganja is not harmful. The Commission is
convinced, in the face of the folk anecdotal and medical scientific
evidence before it, that many, if only a small percent, of those who
use or have attempted use of it are victims of harmful psychological
effects. Of great concern are those of school age, many of whom are
reported to experience a fall in motivation, that intellectual and
emotional condition for educational achievement.
One group that has made recognised contribution to the
development of the arts, and through it brought to our country wide
international recognition and acclaim, deserve to be heard for the
claims they make on the spiritual significance of ganja to them. It
would be a sign of grave disregard and rejection not to accept as
serious the meanings which the Rastafari attach to ganja use. That
would be like appropriating the inspired achievements of Bob Marley
for the glory he has brought our country, but dismissing as trivial
and of no consequence the source of his inspiration, namely his
religion.
The Commission is persuaded also, given the deeply rooted place
of ganja in the culture of the people, that its decriminalisation
could provide a buffer against the spread of the evil cancer,
crack/cocaine. Decriminalisation separates it from cocaine and
heroin, and offers a much better framework in which to focus the
efforts against those substances. Under its criminal status ganja is
classified alongside the others, even though its effect is nowhere
the same. If it were declassified, we think ganja users could be
enlisted in the fight against drugs, while at the same time become
more open and receptive to sustained education as to its harmful
effects.
And so, we turn to the knotty question, how is ganja to be
decriminalised. Were it simply a matter for our country alone to
decide, a simple repeal or amendment of the laws is all that would
be necessary, seeing that there is such wide consensus. However, if
Jamaica is not to isolate itself from the international community or
to ignore geo-political sensibilities, it has to take careful
account of its obligations.
The Laws
There are six Acts relevant to ganja in Jamaica, all of them the
results of ratifying certain United Nations Conventions. The Acts
are:
- The Dangerous Drugs Act
- The Money Laundering Act
- The Drug Offences (Forfeiture of Proceeds) Acat
- The Mutual Assistance (Criminal Matters) Act
- The Sharing of Forfeited Property Act
- The Drug Court (Treatment and Rehabilitation of Offenders)
Act, and The Drug Court Regulations.
The Dangerous Drugs Act addresses measures required under the
Single Convention on Narcotic Drugs, 1961, as amended by the 1972
Protocol Amending the Single Convention on Narcotic Drugs, 1961.
The remaining five Acts address measures required under the
United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, 1988. A third Convention to
which Jamaica is a party is the 1971 Convention on Psychotropic
Substances. As this Convention seeks to control of psychotropic
chemical substances, including certain derivatives of cannabis
sativa, rather than cannabis sativa itself, it need not detain
us.
For the purposes of this Commission the Dangerous Drugs
and the Drug Court Acts are the relevant statutes.
Dangerous Drugs Act
The Dangerous Drugs Act responds to the legislative and
administrative measures parties to the 1961 Convention are
required to adopt to limit the production, manufacture, export,
import, distribution of, trade in, use and possession of drugs,
except for medical and scientific purposes. The drugs defined by the
Convention include cannabis, cannabis resin, extracts and tinctures
of cannabis. In conformity, the Dangerous Drugs Act includes
under its purview all parts of the plant known as ganja (cannabis
sativa) from which the resin has not been extracted, as well as any
resin, extract or tincture obtained from the plant.
Part IIIA of the Act renders it unlawful to import, export, or
take steps to export ganja, and imposes a fine of up to $500 for
each ounce of the substance on conviction before the Circuit Court,
or imprisonment of up to thirty-five years, or both. On conviction
before a Resident Magistrate, the maximum fine is between $300 and
$500 for each ounce, but not exceeding one-half million dollars, or
three years imprisonment, or both.
The Act prohibits as well cultivating, gathering, producing,
selling or otherwise dealing in ganja. It prohibits using the
premises one owns or occupies for such purposes, or knowingly
permitting such premises to be so used, and bans using a conveyance
for transporting, selling or otherwise dealing in ganja, or
knowingly permitting a conveyance to be so used.
But it is the prohibition of possession and smoking that is most
relevant to the work of the Commission. Sections 7C and 7D of the
Act state:
7C. Every person who has in his possession any ganja shall be
guilty of an offence and–
- on conviction before a Circuit Court, shall be sentenced to
a fine or to imprisonment for a term not exceeding five years or
to both such fine and imprisonment; or
- on summary conviction before a Resident Magistrate, shall be
liable–
- to a fine not exceeding one hundred dollars for each ounce
of ganja which the Resident Magistrate is satisfied is the
subject-matter of the offence, so, however, that any such fine
shall not exceed fifteen thousand dollars; or
- to imprisonment for a term not exceeding three years; or
- to both such fine and imprisonment.
7D. Every person who–
- being the occupier of any premises knowingly permits those
premises to be used for the smoking of ganja; or
- is concerned in the management of any premises which he
knows is being used for such purpose as set out in paragraph
(a); or
- has in his possession any pipes or other utensils for use
in connection with the smoking of ganja; or
- smokes or otherwise use ganja,
shall be guilty of an offence and shall be liable on summary
conviction before a Resident Magistrate, in the case of a first
conviction for such offence, to a fine not exceeding five thousand
dollars or to imprisonment for a term not exceeding twelve months,
or to both such fine and imprisonment, and in the case of a second
or subsequent conviction for such offence, to a fine not exceeding
ten thousand dollars or to imprisonment for a term not exceeding two
years or to both such fine and imprisonment.
These are the Sections of the Dangerous Drugs Act which
thousands of our citizens run afoul of and are punished. They are
mainly young persons, but there have been cases of men of advanced
years who have been hauled before the courts.
Decriminalisation would require amending the Act in such a way as
to allow for possession of small amounts for personal private use by
adults.
The Drug Court Act
The Drug Court (Treatment and Rehabilitation of Offenders)
Act, consistent with the 1988 Convention, adopts a
health-related, rather than a punitive approach to drug use. It
provides for the establishment of a Drug Court aimed at facilitating
treatment and rehabilitation of drug offenders. It comprises a
Resident Magistrate and two Justices of the Peace, one of whom must
be a woman, specially appointed by the Minister.
Those brought before the Drug Court must be persons who appear to
be dependent on the use of drugs but are of sound mind.
Where ganja is concerned, the Drug Court will hear cases
involving smoking or otherwise using the substance, possession of
utensils in connection with smoking, and possession of up to eight
ounces of the matter. An approved treatment provider will provide
the Court with an assessment of the person charged and pleaded
guilty, in order to enable the Court to decide whether to order a
prescribed treatment. On successful completion of the treatment he
will be discharged and the offence not form part of his criminal
record, unless convicted more than twice. Failure to comply or to
complete the prescribed programme would result in the imposition of
sentencing.
If the Dangerous Drugs Act were to be amended as indicated
above, in order to provide for adult, private use of ganja, the
Drug Court Act would have to be similarly amended. Provisions
could be made to allow entry into the treatment and rehabilitation
programme of persons who voluntarily seek such, or who have been
referred by a competent authority, such as parents in the case of
minors, or medical personnel, where it can be established that ganja
is the cause of acts inimical to the safety of others.
But would such amendments be possible without breaching the
1961 Single Convention and the 1988 Convention?
1961 Single Convention
The 1961 Convention, Article 4, is explicit on the general
obligations of the parties:
The parties shall take such legislative and administrative
measures as may be necessary:
- To give effect to and carry out the provisions of this
Convention within their own territories;
- To co-operate with other States in the execution of the
provisions ofthis Convention; and
- Subject to the provisions of this Convention, to limit
exclusively to medical and scientific purposes the production,
manufacture, export, import, distribution of, trade in, use and
possession of drugs.
Under Article 4(c), the use and possession of cannabis, one of
the Scheduled substances, is limited to medical and scientific
purposes. And again, under Article 28(3), which speaks specifically
to the Control of Cannabis, "The Parties shall adopt such measures
as may be necessary to prevent the misuse of, and illicit traffic
in, the leaves of the cannabis plant"
But it is Article 36, on Penal Provisions, specifically
paragraphs 1 (a) and 1 (b), and Article 38, on Measures Against the
Abuse of Drugs, that frame in greater detail the obligations of
Parties. Article 36, paragraph 1 (a) reads:
Subject to its constitutional limitations, each Party shall
adopt such measures as will ensure that cultivation, production,
manufacture, extraction, preparation, possession, offering,
offering for sale, distribution, purchase, sale, delivery on any
terms whatsoever, brokerage, dispatch, dispatch in transit,
transport, importation and exportation of drugs contrary to the
provisions of this Convention, and any other action which in the
opinion of such Party may be contrary to the provisions of the
Convention, shall be punishable offences when committed
intentionally, and that serious offences shall be liable to
adequate punishment particularly by imprisonment or other
penalties of deprivation of liberty.
Use is not mentioned here as an offence, thus in theory it could
be thought of as being excluded, making it possible to decriminalise
use without contravening the Convention.
Paragraph 1 (b) of the Article presents the Parties the choice of
conviction and punishment or treatment and rehabilitation. This is
followed in greater detail in Article 38, where preventive measures,
education, treatment and after-care, and training of personnel are
called for.
Legal Expertise
The Commission sought the advice of international law expert, Dr
Stephen Vasciannie of the University of the West Indies, and in a
well-researched and thorough brief, this is what he wrote relative
to the 1961 Single Convention.
"[W]hen Articles 36 (1) (a) and (b) are read together, the legal
situation seems to be as follows: (a) the Single Narcotics
Convention requires States to subject certain activities concerning
marijuana to criminal sanctions (including the cultivation,
production, manufacture, possession, exportation and importation of
that drug); (b) the Convention does not require States to prohibit
the use (or consumption) of marijuana per se; and (c) in the
event that an abuser of marijuana has committed an offence that
would require criminal sanctions when committed by a non-abuser of
the drug, it is open to the State to forego the application of
criminal sanctions against the abuser.
On this reading of the Single Narcotics Convention, it would be
possible for Jamaica to amend its national legislation in order to
decriminalise marijuana use, and make its private use legal, without
necessarily placing the country in breach of its obligations under
the Convention."
But, notes Dr Vasciannie, the difficulty that would arise from
such a step would be the contradiction whereby ganja use would be
legal but its procurement illegal. In his opinion, "[t]his seems
quite unworkable." However, the Commission has before it the
experience of the Dutch, who, without being cited as breaching any
of the Conventions, have adopted a contradictory, if pragmatic
policy, giving restricted decriminalised status to cannabis
distribution and consumption of small quantities, while applying
penal sanction to its production, importation and trafficking.
According to A Guide to Dutch Policy put out by the
Foreign Information Division of The Netherlands Ministry of Foreign
Affairs, in cooperation with the Ministries of Health, Welfare and
Sport, Justice, and Interior and Kingdom Relations, "[t]he use of
drugs is not an offence under international agreements. Nor is it an
offence in Germany, Italy, Denmark or, indeed, most countries of the
European Union" (2000, p. 6). The Government sees itself in
compliance with the UN Conventions of 1961, 1971 and 1988,
not to mention other bilateral and multilateral agreements on
drugs. The policy is based on the "principle of expediency", whereby
authorities are given "discretion to decide, on the grounds of the
public interest, not to bring criminal action in a given case." High
priority is given to suppressing the sale of hard drugs and
trafficking of large quantities of drugs, hard and soft, while low
priority is given to curbing the sale and possession of soft drugs
for personal use. In this context "soft drugs" refer to cannabis and
its derivatives.
Thus, notwithstanding the evident contradiction of
decriminalising personal use while suppressing the sale and
trafficking, a half-way position, which some would reject, is
nonetheless possible under the 1961 Single Convention, which
does not explicitly prohibit use. Noted retired Solicitor General,
Dr Kenneth Rattray, in verbal communication with the Chairman of the
Commission, argues that the omission of sanctions against personal
consumption was not an oversight by the Parties to the Convention,
but rather an attempt to set a threshold beyond which actions of the
State could be deemed to be in breach of certain fundamental human
rights. In this regard, there are three principles of human rights
that governed and have governed this and other similar Conventions:
the principles of the right to personal privacy, and the right to
religious freedom, and the principle of proportionality, by which
the sanction should be proportionate to the offence. That the
Parties to the Convention would have been mindful of these
constraints is clearly evident in the interpretations given the
Convention by the Secretary-General’s Commentary on the
Convention and by the International Narcotics Control Board,
according to both of which the Single Convention intends the
criminalisation of possession for the purposes of illicit
trafficking and not for personal use.
Although Dr Vasciannie argues that had the negotiating Parties
intended to limit possession to illicit traffic they would have said
so, and therefore "[t]he fact that they did not must carry
considerable significance in directing us to interpret Article 36(1)
in keeping with the plain meaning of its text," Dr Rattray, with
considerable experience in international law, emphasises the
contextual and interpretive framework of negotiated agreements and
treaties. He is therefore of the opinion that the interpretation of
the International Narcotics Control Board carries weight.
In addition, Dr Rattray argues, the interpretation of the
Conventions must be done in the context of the obligations assumed
under International Human Rights Conventions, which have been long
recognised as an aid to interpretation, particularly in cases of
uncertainty or ambiguity.
He further contends that there is a growing body of international
jurisprudence, which recognises that International Human Rights
Conventions are of a superior order to obligations under other
Conventions, and that in case of a conflict or inconsistency between
such obligations, the obligation under the Human Rights Conventions
must prevail.
Since Jamaica is a Party to the International Convention on Civil
and Political Rights, which protects against invasion of privacy as
well as protects freedom of religion, those obligations would have
to be considered in the determination as to whether any obligations
under the Drug Conventions must yield to Jamaica’s obligations under
the International Convention on Civil and Political Rights.
In sum, therefore, decriminalisation of possession for personal
use and of use itself does not breach the 1961 Single
Convention.
1988 Convention
The 1988 Convention also does not explicitly criminalise
personal consumption, but by bringing under the purview of the
criminal justice system cultivation, purchase and possession for
personal use, it goes further than the 1961 Single
Convention. The relevant article is Article 3, paragraph 2,
which reads:
"Subject to its constitutional principles and the
basic concepts of its legal system, each Party shall adopt such
measures as may be necessary to establish as a criminal offence
under its domestic law, when committed intentionally, the
possession, purchase or cultivation of narcotic drugs or
psychotropic substances for personal consumption contrary to the
provisions of the 1961 Convention, the 1961 Convention as amended
or the 1971 Convention."
Translated into practice, it would have to be argued that by the
strict letter of the law, the possession of an unlit spliff would
constitute a criminal offence, but the smoking of it not. According
to Dr Vasciannie, the same contradictions noted in respect of the
1961 Convention would also apply, for
"Article 3 (2) would mean that all important stages
preceding consumption, but not consumption itself, must be subject
to the criminal law: the cultivator, the purchaser and the person
in possession are all guilty of criminal offences in the
perspective of the 1988 Convention. For parties to this
Convention, therefore, decriminalisation for personal consumption
would appear to be a position possible in form but implausible in
practice."
He examines other legal options available to Jamaica. Amendment
as a possible route would require the Secretary-General to notify
the Council and all the Parties of the amended text. A decision may
be taken on the basis of the comments of the Parties, or the Council
may convene a conference, whether or not objections are raised. If
the amendment is not rejected within eighteen months of its
circulation, it enters into force. Given the fact that so many
countries have seen it fit to ratify the Conventions (157 in the
case of the 1961 Single Convention, 154 in the case of the
1988 Convention), and given also the relatively recent
adoption of the 1988 Convention, it is hardly likely, Dr
Vasciannie believes, that Jamaica could muster enough support to
carry such an amendment.
The other legal option for which provision is made is
denunciation. By denunciation, the Secretary-General is advised by
written instrument of the withdrawal of consent, which would then
take effect the year following its submission. Legally, this is open
to Jamaica to do, but, opines Dr Vasciannie, from a geo-political
perspective it would make little sense. The Commission agrees.
The Commission does not, however, agree with his conclusion that
while "the main drug conventions…do not in themselves require
Jamaica to subject criminal sanctions to marijuana use…this does not
necessarily permit decriminalisation in a manner that would be
workable in Jamaica", and that therefore "the status quo,
with all its deficiences, ought to be recommended."
Given the clear intent of the Convention not to violate certain
fundamental human rights, a workable if untidy arrangement is
possible, which would seek no significant change in the status
quo at present other than relief to the thousands who annually
are brought before the court for personal use. The suppression of
the growing, large scale trafficking and export of ganja would and
must continue, not least to guard against decertification by the
United States. The suppression of public use would also continue.
What would cease is the prosecution of adults for the possession of
small amounts for private use.
By itself that would not be enough, if we are to allay the fears
of our partners that we are reneging on our international
obligations or to reduce the abuse of ganja, not to mention other
substances. It would require, also, a sustained education campaign,
to deepen the work already going on at community levels and in the
schools. Such an approach is actually quite consistent with both the
letter and spirit of Article 38 of the 1961 Single
Convention, on Measures Against the Abuse of Drugs.
- The Parties shall give special attention to and take
practicable measures for the prevention of abuse of drugs and
for the early identification, treatment, education, after-care,
rehabilitation and social reintegration fo thepersons involved
and shall co-ordinate their efforts to these ends.
- The Parties shall as far as possible promote the training of
personnel in the treatment, after-care, rehabilitation and
social reintegration of abusers of drugs.
- The Parties shall take all practicable measures to assist
persons whose work so requires to gain an understanding of the
problems of abuse of drugs and of its prevention, and shall also
promote such understanding among the general public if there is
a risk that abuse of drugs will become widespread.
In the context of Jamaica, given the place of ganja in social and
cultural life, decriminalisation represents the first step towards
prevention, early identification, treatment and education. This is
the unanimous position of all those working in the area of drug
abuse. In the words of the Chief Medical Officer of Health,
decriminalisation becomes a platform–one might say the only
realistic platform, for demand reduction.
A realistic education campaign would seek to present in as
balanced a way as possible the available experience and scientific
knowledge of ganja, treating it as distinctly separate from all
other substances, legal and illegal. It would continue to target,
but now with greater confidence of success, young males who now
needing no longer to fear condemnation and ostracism would be more
ready to discuss it openly.
Decriminalisation will also require diplomatic efforts to join
ranks with a growing number of Parties who unilaterally are taking
measures to ameliorate their own anti-marijuana practices with
respect to possession and use, our aim being to get the
international community appropriately to amend the Conventions. In
the Caribbean, where, according to a report by the Caribbean drug
control Coordination Mechanism on 1999/2000 drug trends in the
region, cannabis "is, in fact, the drug of choice" and "[u]nlike
crack cocaine or cocaine…is, to a large extent, socially
acceptable," diplomatic intiatives to get CARICOM to adopt a single
position will undoubtedly strengthen Jamaica’s ability to exert
greater influence at the international level.
It will require, finally, practical proof that the country
remains committed to the suppression of all drugs. Police
interdiction of cocaine trafficking and use would need to be stepped
up, which, if the Member of Parliament who appeared before the
Commission is to be believed, is a matter of will.
The Commission has good reason to believe that it is the failure
to do this that will threaten the country’s certification status
with the United States, and not the decriminalisation of personal
possession and use of ganja. Were even a single cocaine trafficker
to be caught, tried and sentenced, it would enhance the country’s
standing. The decriminalisation being recommended would free up more
of Jamaica’s human and financial resources to focus on the
trafficking of cocaine. According to a well-informed source, this is
where the Americans are frustrated with Jamaica.
Human Rights
Decriminalising on the basis that the Conventions do not prohibit
use does not constitute the only justifiable rationale. There may be
a better way. The Commission is grateful to Lord Anthony Gifford for
opening up the following consideration.
All the relevant articles of the Conventions are prefaced by
constitutional limitations, variously phrased. For example,
Paragraph 1 (a) of Article 36 of the 1961 Single Convention on
Narcotic Drugs, is qualified by the clause: "Subject to its
constitutional limitations, each Party shall adopt such measures as
will ensure etc."
Paragraph 2 of Article 3 of the 1988 Convention Against
Illicit Traffic is similarly prefaced: "Subject to its
constitutional principles and the basic concepts of its legal
system, each Party shall adopt such measures etc." In other words
the Conventions pay due regard to the peculiarities of each country,
such as would be reflected in its supreme law, the Constitution.
The Constitutional guarantees to individual rights and freedoms
could normally have been invoked to allow personal use of ganja, as
an expression of religious freedom or of the right to privacy, or
other right, without breaching international obligations.
Unfortunately, such a loophole would not now apply to Jamaica,
because of a saving clause which allows the Jamaican Constitution to
be superseded by any statute in existence prior to the appointed day
when the Constitution came into effect. In the case of Dennis
Forsythe v. the Director of Public Prosecutions and the Attorney
General, in which Forsythe argued that his constitutional right
to freedom of religion as a Rastafarian who used ganja for
sacramental purposes, and his right to the privacy of his home were
violated when he was charged with possession of the prohibited
substance, the Supreme Court handed down judgment which included
among other reasons the fact that Section 26 (8) of the Constitution
plainly declared that "any law in force immediately before the
appointed day shall not be held to be inconsistent with any of the
provisions" of Chapter III of the Constitution which sets out the
Rights and Freedoms of the Jamaican citizen. The Dangerous Drugs
Act being in force prior to the appointed day was judged by the
Supreme Court to be not inconsistent with the Constitution, and so
Dr Forsythe's motion was dismissed. Thus, Jamaica cannot at the
present time make use of the constitutional limitation clause
allowed by the Conventions.
However, the Charter of Rights being debated for adoption
by Parliament were it to take effect, would replace the existing
chapter of the Constitution, override the saving clause of Section
26 (8) of the Constitution and pave the way for Jamaica to take
advantage of the Constitutional Limitation clause. There are two
Drafts, one by the governing People’s National Party, the other by
the Opposition Jamaica Labour Party.
The Government’s Draft at Section 13 (2) reads:
Save only for laws that are required for the governance of the
State in periods of public emergency, or as may be demonstrably
justified in a free and democratic society, Parliament shall pass no
law and no public authority or any essential entity shall take any
action which abrogates, abridges or infringes--
(b) the right to freedom of conscience, belief and observance
of religious and political doctrines;
(l) the right to protection for privacy of home and other
property; enjoyment and beneficial ownership of property.
The Opposition Draft at Section 14 (1) reads:
Save only for laws that are required for the governance of the
State in periods of public emergency or public disaster or as may
be demonstrably justified in a free and democratic society,
Parliament shall pass no law and no organ of the State shall take
any action which abrogates, abridges or infringes:
(c)the right to freedom of conscience, belief and observance
of religious and political doctrines;
(k) the right to enjoyment and beneficial ownership of
property;
(l)the right to respect for private and family life, privacy
of the home and of communication.
Ganja could be decriminalised for personal use and justified
under the constitutionally protected right of enjoyment of the
privacy of one’s home, and possession in limited quantities for such
private use likewise decriminalised. Also to be decriminalised in
like manner would be the possession and use of ganja in pursuit of
the right to freedom to manifest religious doctrines.
As Lord Gifford points out in his written submission, in effect
supporting the above point of Dr Rattray, international human rights
conventions as well as recent judicial decisions in other
jurisdictions add some weight to the argument.
The rights to privacy and to the freedom to manifest one’s
religion as contained in both Drafts of the Charter of Rights are
consistent with Articles 17 and 18 of the International Covenant of
Civil and Political Rights, and Articles 11.2 and 12.1 of the
American Convention on Human Rights. These rights are not absolute,
and both Drafts include provisions to override them, although the
Opposition Draft Section 19 of the Opposition’s Draft goes so far as
to make void any law or rule of law if:
(a) it requires or authorizes anything to be done in
contravention of any provision of this chapter [i.e. the
Charter]; (a) it prohibits the exercise of any right or
freedom protected by this chapter; or (b) if it restricts the
exercise of any such right or freedom in a manner not authorized
by this chapter.
The overriding provisions are, in the first place, those
contained in the qualifier "Save only for laws, etc.", which cover
emergency situations or such laws "as may be demonstrably justified
in a free and democratic society." It is hard to see what kind of
emergency could make it necessary to ban the private use of ganja,
and equally how, given its cultural entrenchment and medical status,
the criminalisation of ganja possession for personal use and the use
itself could be "demonstrably justified in a free and democratic
society." But the Constitutional Court would be called on to
judge.
But secondly–and this is spelt out in the Government’s Draft, the
private possession and use of ganja would be subject to any law
"which is reasonably required–
(a)in the interests of defence, public safety, public order,
public morality, public health…; (d)for the purpose of
protecting the rights or freedoms of other persons."
It is conceivable that ganja use, even in private, could be
challenged as being against public morality and public health, or
for infringing the rights and freedoms of others. But here again the
issue would be subject to argument before the Constitutional Court.
Recent decisions in the United States and Canada also strengthen
the case for decriminalisation. We quote extensively from Lord
Gifford’s written submission:
In US v Bauer and others, cited as 1996 WL
264776 (9th Cir. [Mont]), the United States Federal
Court of Appeal had to consider a plea from Defendants charged
with trafficking and possession of marijuana, that they had the
right to a ‘religious use’ defence. They relied on the Religious
Freedom Restoration Act, a U.S. statue which guaranteed freedom of
religion. The District Court had held that the relevant marijuana
law ‘substantially burdened the free exercise of the Rastafarian
religion’, but decided that ‘the Government had an overriding
interest in regulating marijuana.’ The Court of Appeal reversed
the District Court’s decision. The court held that if the freedom
of a person’s exercise of religion is substantially burdened, the
Government had to meet two tests: (a) a ‘compelling governmental
interest; and (b) that the application of the law is ‘the least
restrictive means of furthering that compelling governmental
interest.’ The Court found that the Government had not shown that
a universal law against marijuana was the ‘least restrictive
means’ of preventing the distribution of marijuana. Accordingly
the defendants who were charged with simple possession would be
re-tried, and they would have a defence if they could show that
the use of marijuana was part of their religious practice as
Rastafarians. The defendants charged with trafficking would have
no such defence, since religious freedom was not involved.
The conclusion drawn by Lord Gifford is that "even in the United
States, the possession of marijuana may be found to be legal by the
courts if it is associated with the exercise of a fundamental right
such as religious freedom."
In the Canadian case of R v Terrance Parker (Docket
C28372, decided on 31st July 2000), the issue concerned
the use of ganja for medical purposes. The Ontario Court of Appeal
considered the evidence concerning the harmful as well as the
therapeutic effects of ganja, and in making its ruling applied
Section 7 of the Charter of Rights, according to which only by
virtue of ‘the principles of fundamental justice’ may the right to
liberty and security of the person be infringed.
The Court found that "the marijuana laws did infringe Parker’s
security in preventing him from undertaking a safe medical treatment
for his condietion of epilepsy. It held that a blanket prohibition
did breach the ‘principles of fundamental justice’", and so
permitted the possession of marijuana for medical use.
Significantly, the Court of Appeal took note of the fact that the
United Nations 1988 Convention had, as the Convention
stipulated, to be subject to Canada’s constitutional principles and
basic concepts of its legal system.
A year later, Canada became the first state to pass legislation
making "medical marijuana" legal.
Clearly, then, a strong legal case for the decriminalisation of
ganja for personal, private use exists once both Government and
Opposition are agreed on the terms of the Charter, and it
becomes law by Act of Parliament. Once it becomes law, the
decriminalisation of ganja for personal use, based on the right of
privacy of the home, and its decriminalisation for religious use,
based on the right of observance of religious doctrines, could then
be covered by the Constitutional limitation respected by the United
Nations Conventions. Decriminalisation would not remove the patent
contradiction exposed by Dr Vasciannie above, but it would be the
more satisfactory of the two options in providing a sounder legal
basis.
CHAPTER 5
CONCLUSIONS AND RECOMMENDATIONS
The National Commission on Ganja accepts that ganja is not
entirely safe. Despite its proven folk medicinal qualities, its use
can be injurious to health. There is evidence that for those who
smoke it the inhalation of tar and other compounds can affect the
lungs; that users can experience short term memory loss and delayed
reaction time; and that among young people it can retard the
learning process. There is also documented evidence that the
substance can produce in some people a mentally disturbed state of
ganja psychosis.
Notwithstanding these and other ill effects, the Commission is of
the view that many, if not most, persons who use ganja in moderation
suffer no apparent short or long term debility. Not only that, but
its reputation among the people as a panacea and a spiritually
enhancing substance is so strong that it is must be regarded as
culturally entrenched. As a result, the practice of criminalising
the users of small quantities does far more harm than good to the
society as a whole. The Commission is mindful also that there are
legally available substances that have been shown to have
physiological and psychological ill-effects that, based on current
evidence, are more injurious than those of ganja. Such is the case
with alcohol and tobacco.
It is the view of the Commission that the punitive sanctions
administered by the justice system to users of small quantities is
not only unjust but is a major source of disrespect and contempt for
the legal system as a whole. Moreover, the punishment meted out to
such offenders has not had and is not likely to have the desired
effect of a deterrent. Administering the present laws as they apply
to possession and use of small quantities of ganja not only puts an
unbearable strain on the relationship of the police with the
communities, in particular the male youth, but also ties up the
justice system and the work of the police, who could use their time
to much greater advantage in the relentless pursuit of crack/cocaine
trafficking.
Accordingly the Commission recommends as follows:
- that the relevant laws be amended so that ganja be
decriminalised for the private, personal use of small quantities
by adults;
- that decriminalisation for personal use should exclude smoking
by juveniles or by anyone in premises accessible to the public;
- that ganja should be decriminalised for use as a sacrament for
religious purposes;
- that a sustained all-media, all-schools education programme
aimed at demand reduction accompany the process of
decriminalisation, and that its target should be, in the main,
young people;
- that the security forces intensify their interdiction of large
cultivation of ganja and trafficking of all illegal drugs, in
particular crack/cocaine;
- that, in order that Jamaica be not left behind, a Cannabis
Research Agency be set up, in collaboration with other countries,
to coordinate research into all aspects of cannabis, including its
epidemiological and psychological effects, and importantly as well
its pharmacological and economic potential, such as is being done
by many other countries, not least including some of the most
vigorous in its suppression; and
- that as a matter of great urgency Jamaica embark on diplomatic
initiatives with its CARICOM partners and other countries outside
the Region, in particular members of the European Union, with a
view (a) to elicit support for its internal position, and (b) to
influence the international community to re-examine the status of
cannabis.
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