KHADIJA MAGARDIE, Johannesburg | Friday
LAWYERS for Cape Town candidate attorney Gareth Prince are proposing that Rastafari carry a pass, authorising them to smoke dope.
The Constitutional Court this week resumed argument on whether Prince should be exempted from legislation outlawing the possession and use of the drug.
He was refused admission by the Cape Law Society in 1997 after it declared him “not a fit and proper person” to join its ranks. The reason – Prince had previous convictions for the possession of dagga and indicated that, as a member of the Rastafari religion, he would continue to use it.
Rastafari consider dagga a holy herb and use it in a variety of forms, from cake ingredients to light-up in a ‘zol’, to communicate with their Creator. But it is nevertheless classified as a harmful narcotic, the possession and usage of which are outlawed in South Africa.
Refusing to accept that the door to his career was being closed, Prince took his case to the Cape High Court, where he argued that the prohibition on smoking dagga violated his freedom of religion; his right to dignity; to not be unfairly discriminated against; and to choice of profession.
But while the high court agreed that the prohibition infringed on Rastafari religious rights, it said this was justifiable, because the state had an interest in the strict regulation of the narcotic. The Supreme Court of Appeal, expressing similar sentiments, dismissed Prince’s appeal – bringing it into the domain of constitutionality.
The crowd that turned out for the first day of proceedings were a marked departure from the legendary stiffness and formality of court. ‘Jah-man’ (the endearment used by Rastafari when addressing each other) sandwiched a man in pin-striped suit.
Rastafari from across the country attended the hearing. Prince was resplendent in a formal suit and tie, the long white scarf worn by Rastafari men and, of course, his waist-length dreadlocks.
The case was first in the Constitutional Court heard last year, but postponed due to lack of sufficient evidence relating to the nature of dagga use within the Rastafari religion.
The scenes outside the court building on Thursday were almost festive. Hundreds of supporters chanted and danced at a nearby open square. Some carried the green, yellow and red striped flag emblazoned with the Lion of Judah. Another flag had the words ‘Free Ganja’. Others, wearing T-shirts with a picture of Haile Selassie, the late Ethiopian emperor revered by the Rastafari, beat on drums. And others stood around taking bold puffs from a “zol”, in full view of about 50 police officers standing nearby.
One supporter, simply called “Bingi-mun”, sprouted fresh green dagga leaves from his dreadlocks. A Rastafari woman brandished a poster, reading “We are not criminals”.
But the criminality of smoking dagga is not the issue upon which the court is being asked to decide. Both sides have acknowledged the need by the state to regulate the distribution and usage of harmful drugs.
The challenge rests on whether Prince, and all Rastafari, should be exempted from the laws – the Drugs and Drug Trafficking Act and the Medicines and Related Substance Control Act that outlaw dagga.
As it stands, there are minimal but existent exemptions relating to the medicinal usage of dagga, as well as its usage for research purposes. But this is the first time an exemption from dagga-smoking is being requested on the grounds of religion.
John Abel, appearing on behalf of Prince, implored the court to “acknowledge, and accept the affirmation of differences” within society, which was crucial in determining whether or not it was fair to prohibit Rastafari from smoking dagga.
He was responding to a question from Constitutional Court Judge Zac Yacoob as to whether giving Rastafari the green light to partake of the herb would send “a disastrous message to the public”.
Among other things, Abel proposed that the prospective exemption would see all ‘sincere’, bona fide Rastafari being accredited by a representative body, the Rastafarian National Council.
He suggested that a way of managing an exemption would be to introduce a form of identification document, which a Rastafari could present in the event of arrest.
He added that lists of Rastafari in particular areas could be furnished to the police, to make monitoring easier. With regards to supply, Abel proposed that Rastafari be issued with permits authorising them to grow a certain amount of dagga plants for personal usage.
In response to questions relating to the “where and when” of dagga usage, he said the court needed to take into account the ‘internal discipline’ of Rastafari – they do not drink alcohol, or eat meat, which would keep abuse in check.
Judge Albie Sachs said Prince’s religious integrity, at “considerable personal cost”, should be acknowledged, but added that the right to religious freedom needed to be balanced by the state interest involved.
Counsel for the National Directorate of Public Prosecutions in the Western Cape Johan Slabbert said the state could not foresee practicality in the granting of such an exemption because it created difficulties in policing.
He told the court it would be virtually impossible to enforce for several reasons – mainly relating to the fact that Rastafari did not confine dagga-smoking to a particular time or place.
The appeal is opposed by the director of public prosecutions and the minister of health.
Prince’s counsel elicited murmurs of approval from the public gallery when mentioning that dagga was relatively harmless, as the drug was not considered ‘a drug of squalor’ like other hard drugs -prompting several of the judges to remind the counsel that the legality of dagga was not the issue.
But Prince’s light-hearted words during an adjournment expressed what was likely on the minds of many. Passing by Slabbert’s desk on his way out, he playfully asked the lawyer if he still smoked cigarettes.
“Now that’s harmful,” Prince joked.
Judgement is expected in six to eight weeks.
*ZA NOW:
Rasta lawyer leads bid to legalise dope November 17, 2000
My Oberon! What visions I have seen November 6, 2000
Legalise dope, urges Helen Suzman October 25, 2000