Annette J. Henry | Medical marijuana for prisoners? … Do the constitutional and/or legal rights for access to medicine and sacrament extend to persons who are incarcerated?

The prohibitionist treatment of the cannabis sativa plant, coupled with the outdated drug laws, continues to be an issue of deep social significance in the international space, the Caribbean and, by no lesser means, to the people of Jamaica who have long known cannabis as a miracle plant with medicinal properties through traditional use.

Much has been said about the current laws, the interim regulations and framework, in Jamaica, treating with accessing ganja for use as medicine through a licensing and enforcement framework, the rights of Rastafarians to use ganja as a sacrament, and the decriminalisation of possession of up to two ounces of ganja.

There is the Report of the CARICOM Regional Commission on Marijuana 2018: Waiting to Exhale – Safeguarding Our Future Through Responsible Socio-Legal Policy On Marijuana, which clearly echoes and sums up the voices of the region; a significantly large portion of the people want to have access to the plant for its medicinal properties. They believe, among other things, that the prohibitionist laws are discriminatory, deeply unjust, unfit for purpose, and they violate certain fundamental rights and freedom.

There have been increasing and sustained agitation and actions from the people in the English-speaking Caribbean for cannabis to be integrated into mainstream life activities. Out-of-touch laws, which have, for centuries criminalised and heavily penalized the use of the ‘Mother Nature’ plant, whether as medicine, therapy or as sacrament, are being modernised in many jurisdictions across the globe including the Caribbean, to facilitate access to the plant for medicine and/or a sacrament.

No doubt, these actions are noticeably changed in an enlightened direction, moving away from the penal and eradication approaches towards an acknowledgement of the plant’s value and medicinal properties.

Given the legal provisions for the use of ganja as sacrament or medicine, several critical questions that we should address our minds to do arise. Are persons incarcerated provided with the channel to access the medicine, should the need arise? And are there systems in place to afford an inmate of the Rastafarian faith access and use of ganja as a sacrament?

LEGAL, FUNDAMENTAL RIGHTS AND FREEDOM

The Jamaican Constitution, 1962 and its amendments and Article 18 of the Universal Declaration of Human Rights, established in 1948 by the United Nations, which are quite similar, continue to preserve the basic rights and fundamental freedoms to which all humans are entitled, despite race, religion or ideologies.

Of note, Section 17(1) (Protection of Freedom of Religion) of the Jamaican Constitution reads, “Every person shall have the right to freedom of religion including the freedom to change his religion and the right, either alone or in community with others and both in public and in private, to manifest and propagate his religion in worship, teaching, practice and observance.”

Article 18 (Right to Freedom of Thought and Religion) of the Universal Declaration of Human Rights reads, “Everyone has the right to freedom of thought, conscience and religion; the right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

In this new dispensation and paradigm, an inmate may seek to give effect to his or her legal and/or fundamental rights to possess, access or use ganja as a sacrament or medicine. Will the inmate be scoffed at as being “seeking to get a high” because correctional facilities protocols relating to rehabilitation, well-being and parole remain static?

There may be a risk of perpetuating the antiquated laws and modalities with the persistent impact on health, institutional infrastructure and human rights, due to continued resistance or ignorance of the current law. Should this be allowed?

MORE QUESTIONS THAN ANSWERS

In the circumstances, we should also ask:

1. Do the correctional facilities allow for inmates to have prescribed medicine containing ganja or ganja for medical purpose?

2. Can inmates of the Rastafarian faith exercise their right in the correctional facilities to use ganja as a sacrament?

3. Will an inmate’s eligibility for parole be impaired by use of cannabis as a sacrament or medicine?

Indeed, there is an avalanche of interest and investments in the cannabis industry in Jamaica, across the Caribbean, and the world. It behooves us as policymakers, activists, lobbyists or commentators to ensure that the emerging dispensation is inclusive and devoid of social and economic inequities. It is imperative that as our laws are modernised, the widest cross section of society do have an opportunity to be beneficiaries.

Annette J. Henry, JP is an attorney-at-law and was the first director of Licensing and Applications at the Cannabis Licensing Authority in Jamaica, with extensive knowledge of the cannabis Industry and in-depth experience in the regulatory and licensing environment. Email feedback to columns@gleanerjm.com.