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SUMMARY OF FACTS
1. The complaint is filed by Mr Garreth Anver Prince, a South African
citizen of 32 years old, against the Republic of South Africa.
2. The complainant alleges that, despite his completion of the academic
requirements for admission as an attorney in terms of the Attorney’s Act 53
of 1979, and despite his willingness to register for a contract of community
service for a period of one year, which is a requirement under the said Act,
the Law Society of the Cape of Good Hope (the Law Society) declined to
register his contract of community service.
3. The complainant alleges that the Law Society’s refusal to register him
was based on his disclosure, made in his application with the Law Society,
that he had two previous convictions for possession of cannabis under
section 4(b) of the Drugs and Drug Trafficking Act and his expressed
intention to continue using cannabis. The complainant stated that the use of
cannabis was inspired and required by his Rastafari religion. The Law
Society held that such a person was not a fit and proper person to be
admitted as an attorney.
4. The complainant alleges that reasoning and meditation are essential
elements of the religion. The use of cannabis is central to these essential
practices of the religion that serve as a form of communion. He alleges that
the use of cannabis was believed to open one’s mind and helped Rastafari
gain access to the inspiration provided by Jah Rastafari, the Living God. He
further alleges that the use of cannabis in Rastafari religion was the most
sacred act surrounded by very strict discipline and elaborate protocol. The
use of the herb, as it is commonly known, is to create unity and assist in
establishing the eternal relationship with the Creator.
COMPLAINT
5. The complainant alleges violations of articles 5, 8, 15 and 17(2) of the
African Charter on Human and Peoples’ Rights.
6. The complainant prays that he be entitled to an exemption for the
sacramental use of cannabis reasonably accommodating him to manifest his
beliefs in accordance with his Rastafari religion.
PROCEDURE
7. The undated complaint was received at the Secretariat on 12 August 2002.
8. On 16 August 2002, the Secretariat wrote to the complainant acknowledging
receipt of the complaint, and informing him that his complaint has been
registered and scheduled for consideration at the Commission’s 32nd ordinary
session.
9. At its 32nd ordinary session held from 17 to 23 October 2002 in Banjul,
The Gambia, the African Commission considered the complaint and decided to
be seized thereof.
10. On 4 November 2002, the Secretariat wrote to the complainant and
respondent state to inform them of this decision and requested them to
forward their submissions on admissibility before the 33rd ordinary session
of the Commission.
11. On 19 December 2002, the Secretariat received the complainant’s written
submissions on admissibility of the communication, which was forwarded to
the respondent state on 17 February 2003. In the same letter, the
Secretariat reminded the respondent state to forward its written submissions
on the admissibility of the communication before the 33rd ordinary session.
12. By a note verbale of 31 March 2003, which was not received in a legible
print-out form, the respondent state confirmed receipt of the Commission’s
correspondences and requested the Commission to extend the deadline for the
submission of its response on the admissibility of the complaint for another
three months.
13. On 8 April 2003, the Secretariat wrote to the respondent state
confirming receipt of their correspondence and requesting them to resend the
said request to it as the same did not reach the Secretariat in a legible
print-out form.
14. By a fax of 5 May 2003, the respondent state confirmed its request for
more time to enable it prepare and forward its written submissions on
admissibility of the communication to the Commission.
15. At its 33rd ordinary session held in Niamey, Niger from 15 to 29 May
2003, the African Commission examined the communication and postponed its
decision on admissibility to its 34th ordinary session granting the
respondent state more time as per its request.
16. On 12 June 2003, the Secretariat wrote to the complainant and the
respondent state informing them of this decision and further reminding the
latter to forward its written submissions on admissibility of the same
before the 34th ordinary session of the Commission.
17. On 12 September 2003, the Secretariat of the African Commission received
the written submissions on admissibility of the respondent state. This was
forwarded to the complainant on 23 September 2003.
18. At its 34th ordinary session held in Banjul, The Gambia from 6 to 20
November 2003, the African Commission examined the complaint and declared it
admissible.
19. On 10 December 2003, the Secretariat wrote to the parties informing them
of this decision and further requesting them to forward to the African
Commission their respective written submissions on the merits of the
communication before the 35th ordinary session.
20. On 12 March 2004, the respondent state forwarded its written submissions
on the merits of the communication and expressed its wish to lead oral
arguments on the matter during the 35th ordinary session of the African
Commission, receipt which the Secretariat acknowledged on 17 March 2004. A
similar request to address the African Commission orally was sent to the
African Commission by the complainant on 11 and 23 March 2004.
21. On 17 March 2004, the Secretariat of the African Commission forwarded a
copy of the respondent state’s written submissions on the merits to the
complainant.
22. By a note verbale of 21 May 2004, the respondent state informed the
Secretariat that the parties in the matter have consulted on the date for
the hearing of the communication by the African Commission and kindly
requested the latter to consider the same on 29 May 2004, which date would
be most suitable for them to appear.
23. The parties have concluded their exchange of submissions on the merits.
They are now both requesting the African Commission to allow them to lead
oral arguments to complement their submissions on the same. The African
commission granted them audience as requested to enable them to complement
their written submissions and to enable the African Commission to engage the
parties during their presentations.
24. At its 35th ordinary session held in Banjul, The Gambia, from 21 May to
4 June 2004, the African Commission examined the complaint and decided to
defer its decision on the merits to the 36th ordinary session.
25. On 17 June 2004, the Secretariat informed both parties of this decision.
26. At its 36th ordinary session that took place from 23 November to 7
December 2004, the African Commission considered the communication and took
a decision on merits thereto.
LAW ADMISSIBILITY
27. Since both parties have not contested the issue of admissibility of this
communication, and since the complaint complies with the requirements under
article 56 of the African Charter, the African Commission decided,
unanimously, to declare it admissible at its 34th ordinary session held in
Banjul, The Gambia from 6 to 20 November 2003.
DECISION ON MERITS
28. As per the original complaint, the complainant is a 32 years old man who
wishes to become an attorney in the courts of South Africa. Having satisfied
all the academic requirements of the South African Attorney’s Act (the Act),
he applies to register a contract of community service with the Law Society
of the Cape of Good Hope (the Law Society). Under the same Act, registering
articles of clerkship or performing community service, as Mr Prince wished
to do, is another requirement that an applicant should fulfil before he/she
could be admitted as an attorney to practice before the High Court. Per the
provisions of the Act, the applicant, such as Mr Prince, should serve for a
period of one year. Before serving so, however, the Act requires that the
applicant should provide proof to the satisfaction of the Law Society that
he/she is ‘fit and proper person’. In his application to the Society, and as
part of the legal requirement, Mr Prince disclosed not only that he had two
previous convictions for possession of cannabis under the Drugs and Drug
Trafficking Act (the Drugs Act), but that he intended to continue using
cannabis as inspired and required by his Rastafarian religion.
29. The Law Society declined to register Mr Prince’s contract of community
service taking the view that a person who, while having two previous
convictions for possession of cannabis, declares his intention to continue
using the substance, is not a ‘fit and proper person’ to be admitted as an
attorney. Mr Prince alleged that the Law Society’s refusal to register meant
that as long as he adhered to the requirements of his Rastafari faith, he
would never be admitted as an attorney. Accordingly, Mr Prince brought this
complaint alleging violation of articles 5, 8, 15, and 17(2) of the African
Charter. In his prayers to the African Commission, the complainant requested
the African Commission to find the respondent in violation of the said
articles, and that he be entitled to an exemption for the sacra- mental use
of cannabis reasonably accommodating him to manifest his beliefs in
accordance with his Rastafari religion.
30. In elucidating his claims, the complainant cites two South African
statutes as having an impact on the practice of the Rastafarian religion:
the Drugs Act and the Medicines and Related Substances Act (the Medicines
Act). The former lists cannabis as an undesirable dependence-producing
substance and prohibits its use and possession, in line with the stated
purpose of the Act: to prohibit the use and possession of
dependence-producing substances and dealing in such substances. It, however,
exempts the use or possession of this substance in certain circumstances
such as for medicinal purposes, subject to the provisions of the Medicines
Act, which in turn regulates the registration of medicines and substances.
The latter Act, however, prohibits the use or possession of cannabis except
for research and analytical purposes. The complainant alleges that the
purposes of the prohibitions contained in these two Acts coincided and hence
both statutes proscribed the sacramental use of cannabis and therefore
impacted upon the religious practices of Rastafari. The proscriptions are
unlimited in terms that they also encompassed the use or possession of
cannabis by Rastafari for bona fide religious purposes failing to
distinguish between Rastafari and drug abusers thereby grouping genuine
religious observation with criminality. He alleges that the respondent state
thus violated his right to dignity (article 5), his right to freedom of
religion (article 8), his right to occupational choice (article 15), and his
right to a cultural life (article 17(2)).
31. The complainant, in requesting for an exemption for sacramental use of
cannabis, further explains that he does not ask for the overall
decrimi-nalisation of cannabis, rather for a reasonable accommodation to
manifest his beliefs in accordance with his Rastafari religion. Such
reasonable accommodation ensures a religiously pluralistic society that is
an important principle of any democratic society. He adds that Rastafari is
a minority and vulnerable group, a political minority not able to use
political power to secure favourable legislations for themselves.
32. In its initial response of 5 September 2003, the respondent state argues
that attorneys are obliged to uphold the law and wilful defiance of the law
suggests that such a person is not fit and proper to be admitted as an
attorney. This is so even if the person applying for admission believes that
a law or a provision thereof contravenes his or her fundamental rights.
Until such time that a law or a provision thereof has been declared
unconstitutional or has been changed by legislative or other means, everyone
has duty to obey the law or provision in question.
33. The respondent state further argues that any religious practices must be
conducted within the framework of the law and must, if necessary, be adapted
to comply with the law as failure to do so will result in anarchy. Rastafari
is a genuine religion protected by the South African Constitution. The
recognition of and the right to practice a religion and engage in associated
activities may not be exercised in a manner which is inconsistent with the
Bill of Rights and the rule of law under which no one would be punished
except for a distinct breach of law to which everyone is subject. Religious
practices and the freedom to practice a religion must be conducted strictly
in accordance with the law, which must be obeyed.
34. Contrary to the complainant’s allegation, the respondent state avers
that the fact that reasonable limitations are placed on the practice of a
religion in the interests of society does not negate the essential right to
freedom of religion. The Constitution permits limitation of rights without
which the rights of others may be infringed with unintended consequences.
The prohibition on the use of cannabis is a reasonable and permissible
limitation on the freedom of religion. The legal restrictions placed on the
use of cannabis do not erode the necessity to ensure religious pluralism,
are rational and legitimate and do not invade the right any further than it
needs.
35. The respondent state further avers that lawyers have a duty, at all
times, to uphold the Constitution and the rule of law, which includes
adhering to the law, adapting ones religious practices to confirm with the
law and generally setting an example to others. The complainant’s
professional difficulties are due to his refusal to accept and adhere to the
relevant laws and that the worship of the Creator is possible without
cannabis. The impugned provisions of the law do not compel Rastafari to
desist from taking part in an aspect of the cultural life of their
community.
36. In conclusion, the respondent state admits that the impugned provisions
do prohibit the use or possession of cannabis for bona fide religious
purposes but they are not overbroad and that the Constitutional Court has
upheld the restrictions placed on the use of cannabis.
37. In its further written submissions on the merits, the respondent state
raised the following points:
That the matter has been carefully considered by the South African courts
which found that while the legislations in question did limit Mr Prince’s
constitutional rights, specifically the right to freedom of religion, such
limitations were justifiable under the South African Constitution which
allows limitations only in terms of law of general application to the extent
that such limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality, and freedom. Limitations may also
take place taking into account all relevant factors, including: The nature
of the right; The importance of the purpose of the limitation; The nature
and extent of the limitation; The relation between the limitation and its
purpose; and the less restrictive means to achieve the purpose. That in
considering the matter, the South African Constitutional Court made a
careful analysis of the Bill of Rights and struck a careful balance between
competing interests in society, while remaining acutely aware of the
historical context and unique feature of the South African society of which
it is the highest judicial body. That the African Commission should apply
extreme care in considering this matter as a determination that will in
effect contradict the decision of an esteemed judicial body will inevitably
carry seeds of possible conflict between domestic and international legal
systems, and will upset the careful balances struck within the young and
developing human rights system of member states of the AU.
That the South African courts, in denying Mr Prince’s application, and in
striking a balance between his rights and the interests of the wider
society, did not only do so with South African domestic law in mind, but in
the process also took into account the widest possible scope of
international law, both customary international law and treaty law,
including the African Charter. By using the same international law sources
as the South African courts, the African Commission should come to the same
conclusions as that of the South African domestic courts.
That, in order to allow the domestic legal system of South Africa co-exist
with the African Charter without undue tension, the African Commission
should apply the following two methods of interpretation:
The principle of subsidiarity which delimits or distributes powers,
functions and responsibilities between the state on the one hand, and
individuals and groups within the jurisdiction of the state, on the other.
Equally, this can be applied to distribute powers between national
authorities of state parties to the African Charter and the African Charter
itself. The national authorities should have the initial responsibility to
guarantee rights and freedoms within the domestic legal orders of the
respective states, and in discharging this duty, should be able to decide on
appropriate means of implementation. The African Commission should therefore
construct its role as subsidiary, as a narrower and supervisory competence
in subsequently reviewing a state’s choice of action against the standards
set by the provisions of the African Charter. In terms of this construction,
the African Commission should not substitute for domestic institutions in
the interpretation and application of national law.
The margin of appreciation doctrine, which is the logical result of the
application of the principle of subsidiary. It’s a discretion that a state’s
authority is allowed in the implementation and application of domestic human
rights norms and standards. This discretion that the state is allowed, rests
on its direct and continuous knowledge of its society, its needs, resources,
economic and political situation, legal practices, and the fine balance that
need to be struck between the competing and sometimes conflicting forces
that shape a society. Accordingly, the African Commission, in considering
the matter, has to take into account the legal and factual situation in
South Africa. It should not view this communication in abstracto, but in the
light of the specific circumstances pertaining in the respondent state. The
South African Constitutional Court did take into account such specific
circumstances: the ratio for the decision to limit the right to freedom of
religion in terms of the Constitution was that the use of cannabis by
Rastafari could not be sanctioned without impairing the state’s ability to
enforce its drug legislation in the interest of the public at large.
38. The respondent state finally avers that the African Charter does not
prescribe how state parties should achieve the protection of the rights
enshrined within the domestic jurisdiction, but leaves the way in which such
protection is to be achieved to the discretion of state parties.
39. The African Commission has examined the complaint and the various
documents thereto and decides as follows.
Violation of the right to freedom of religion: Article 8 of the African
Charter
40. The complainant alleges violation of this article due to the respondent
state’s alleged proscription of the sacramental use of cannabis and for
failure to provide a religious exemption for Rastafari. The crux of his
argument is that manifestation of Rastafari religious belief, which involves
the sacramental use of cannabis, places the Rastafari in conflict with the
law and puts them at risk of arrest, prosecution and conviction for the
offence of possession or use of cannabis. While admitting the prohibition
serves a rational and legitimate purpose, he nonetheless holds that this
prohibition is disproportionate as it included within its scope the
sacramental use of cannabis by Rastafari.
41. Although the freedom to manifest one’s religion or belief cannot be
realised if there are legal restrictions preventing a person from performing
actions dictated by his or her convictions, it should be noted that such a
freedom does not in itself include a general right of the individual to act
in accordance with his or her belief. While the right to hold religious
beliefs should be absolute, the right to act on those beliefs should not. As
such, the right to practice one’s religion must yield to the interests of
society in some circumstances. A parent’s right to refuse medical treatment
for a sick child, for instance, may be subordinate to the state’s interest
in protecting the health, safety, and welfare of its minor children.
42. In the present case, thus, the Commission upholds the respondent state’s
restriction, which is general and happens to affect Rastafari incidentally
(de facto), along the lines of the UN Human Rights Committee, which, in the
case K Singh Bhinder v Canada (communication 208/1986) upheld restrictions
against the manner of manifestation of one’s religious practice. That case
concerned the dismissal of the complainant from his post as maintenance
electrician of the government-owned Canadian National Railway Company. He
had insisted on wearing a turban (as per the edicts of his Sikh religion)
instead of safety headgear at his work, which led to the termination of his
labour contract. The UN Human Rights Committee held:
If the requirement that a hard hat be worn is seen as a discrimination de
facto against persons of the Sikh religion under article 26, then, applying
criteria now well established in the jurisprudence of the Committee, the
legislation requiring that workers in federal employment be protected from
injury and electric shock by wearing of hard hats is to be regarded as
reasonable and directed towards objective purpose that are compatible with
the Covenant.
43. The African Commission considers that the restrictions in the two South
African legislations on the use and possession of cannabis are similarly
reasonable as they serve a general purpose and that the Charter’s protection
of freedom of religion is not absolute. The only legitimate limitations to
the rights and freedoms contained in the African Charter are found in
article 27(2); ie that the rights in the African Charter ‘shall be exercised
with due regard to the rights of others, collective security, morality, and
common interest’. The limitation is inspired by well-established principle
that all human and peoples’ rights are subject to the general rule that no
one has the right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognised elsewhere. The
reasons for possible limitations must be founded in a legitimate state
interest and the evils of limitations of rights must be strictly
proportionate with and absolutely necessary for the advantages, which are to
be obtained. It is noted that the respondent state’s interest to do away
with the use of cannabis and its abuse/trafficking stems from the fact that,
and this is also admitted by the complainant, cannabis is an undesirable
dependence-producing substance. For all intents and purposes, this
constitutes a legitimate limitation on the exercise of the right to freedom
of religion within the spirit of article 27(2) cum article 8.
44. Besides, the limitations so visited upon the complainant and his fellow
Rastafari fall squarely under article 2 of the African Charter which
requires states to ensure equal protection of the law. As the limitations
are of general application, without singling out the complainant and his
fellow Rastafari but applying to all across the board, they cannot be said
discriminatory so as to curtail the complainant’s free exercise of his
religious rights.
Violation of the right to occupational choice: Article 15 of the African
Charter
45. The complainant has alleged that because of his religious beliefs, the
Law Society refused to register his contract of community service, thereby
violating his right to occupational choice. He argued that the effect of the
legal restrictions on cannabis in effect denied the Rastafari access to a
profession.
46. One purpose of this Charter provision is to ensure that states respect
and protect the right of everyone to have access to the labour market
without discrimination. The protection should be construed to allow certain
restrictions depending on the type of employment and the requirements
thereof. Given the legitimate interest the state has in restricting the use
and possession of cannabis as shown above, it is held that the complainant’s
occupational challenge can be done away with should he chose to accommodate
these restrictions. Although he has the right to choose his occupational
call, the Commission should not give him or any one a leeway to bypass
restrictions legitimately laid down for the interest of the whole society.
There is no violation, thus, of his right to choose his occupation as he
himself chose instead to disqualify himself from inclusion by choosing to
confront the legitimate restrictions.
Violation of the right to dignity and cultural life: Articles 5 and 17(2) of
the Charter
47. The complainant lists down the main characteristics for identifying the
Rastafari way of life (culture): hairstyle, dress code, dietary code, usage
of cannabis, the worship of Jah Rastafari, the Living God, and others. He
further states that the critical form of social interaction amongst the
followers of this religion is the worship of the Creator, which is not
possible without cannabis, and to which the respondent state argues to the
contrary.
48. The Commission notes that the participation in one’s culture should not
be at the expense of the overall good of the society. Minorities like the
Rastafari may freely choose to exercise their culture, yet, that should not
grant them unfettered power to violate the norms that keep the whole nation
together. Otherwise, as the respondent state alleged, the result would be
anarchy, which may defeat everything altogether. Given the outweighing
balance in favour of the whole society as opposed to a restricted practice
of Rastafari culture, the Commission should hold that the respondent state
violated no cultural rights of the complainant.
49. With respect to the alleged violation of the right to human dignity, the
Commission holds that the complainant’s treatment by the respondent state
does not constitute unfair treatment so as to result in his loss of
self-worth and integrity. As he or his fellow Rastafari are not the only
one’s being proscribed from the use or possession of cannabis, the
complainant has no grounds to feel devalued, marginalised, and ignored.
Thus, the Commission should find no violation of the right to dignity.
With respect to the arguments of the respondent state invoking the
interrelated principle of subsidiarity and the margin of appreciation
doctrine
50. The African Commission notes the meaning attached to these doctrines by
the respondent state as outlined in its submissions to the former. The
principle of subsidiarity indeed informs the African Charter, like any other
international and/or regional human rights instrument does to its respective
supervisory body established under it, in that the African Commission could
not substitute itself for internal/domestic procedures found in the
respondent state that strive to give effect to the promotion and protection
of human and peoples’ rights enshrined under the African Charter.
51. Similarly, the margin of appreciation doctrine informs the African
Charter in that it recognises the respondent state in being better disposed
in adopting national rules, policies and guidelines in promoting and
protecting human and peoples’ rights as it indeed has direct and continuous
knowledge of its society, its needs, resources, economic and political
situation, legal practices, and the fine balance that need to be struck
between the competing and sometimes conflicting forces that shape its
society.
52. Both doctrines establish the primary competence and duty of the
respondent state to promote and protect human and peoples’ rights within its
domestic order. That is why, for instance, the African Charter, among
others, requires complainants to exhaust local remedies under its article
56. It also gives member states the required latitude under specific
articles in allowing them to introduce limitations. The African Commission
is aware of the fact that it is a regional body and cannot, in all fairness,
claim to be better situated than local courts in advancing human and
peoples’ rights in member states.
53. That underscored, however, the African Commission does not agree with
the respondent state’s implied restrictive construction of these two
doctrines relating to the role of the African Commission, which, if not set
straight, would be tantamount to ousting the African Commission’s mandate to
monitor and oversee the implementation of the African Charter. Whatever
discretion these two doctrines may allow member states in promoting and
protecting human and peoples’ rights domestically, they do not deny the
African Commission’s mandate to guide, assist, supervise and insist upon
member states on better promotion and protection standards should it find
domestic practices wanting. They do allow member states to primarily take
charge of the implementation of the African Charter in their respective
countries. In doing so, they are informed by the trust the African Charter
has on member states to fully recognise and give effect to the rights
enshrined therein. What the African Commission would not allow, however, is
a restrictive reading of these doctrines, like that of the respondent state,
which advocates for the hands-off approach by the African Commission on the
mere assertion that its domestic procedures meet more than the minimum
requirements of the African Charter.
FOR THESE REASONS, THE AFRICAN COMMISSION, finds no violation of the
complainant’s rights as alleged. |
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