255/02 : Garreth Anver Prince / South Africa
Summary of Facts
1. The complaint is filed by Mr Garreth Anver Prince, a South African citizen of 32 years of age,
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.
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7. The undated complaint was received at the Secretariat on 12 August 2002.
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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
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at the Commission’s 32 Ordinary Session.
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9. At its 32 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.
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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
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33 Ordinary Session of the Commission.
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11. On 19 December 2002, the Secretariat received the Complainant’s written submissions on
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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
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submissions on the admissibility of the communication before the 33 Ordinary Session.
12. By a Note Verbale of 31st 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.
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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.
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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.
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15. At its 33 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
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34 Ordinary Session granting the Respondent State more time as per its request.
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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
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of the same before the 34 Ordinary Session of the Commission.
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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
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23 September 2003.
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18. At its 34 Ordinary Session held in Banjul, The Gambia from 6 to 20 November 2003, the
African Commission examined the complaint and declared it admissible.
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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
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the merits of the communication before the 35 Ordinary Session.
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20. On 12 March 2004, the Respondent State forwarded its written submissions on the merits of the
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communication and expressed its wish to lead oral arguments on the matter during the 35 Ordinary
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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
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Complainant on 11 and 23 March 2004.
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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 21st 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
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Commission and kindly requested the latter to consider the same on the 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 complement their written submissions and to enable the African Commission to engage the
parties during their presentations.
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24. At its 35 Ordinary Session held in Banjul, The Gambia from 21st May to 4 June 2004, the
African Commission examined the complaint and decided to defer its decision on the merits to the
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36 Ordinary Session.
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25. On 17 June 2004, the Secretariat informed both parties of this decision.
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26. At its 36 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
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Commission decided, unanimously, to declare it admissible at its 34 Ordinary Session held in Banjul,
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The Gambia from 6 to 20 November 2003.
28. As per the original complaint, the Complainant is a 32 year 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. As per the provisions of the Act, the Applicant, such as [sic] 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
sacramental 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 fidereligious 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 decriminalisation 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.
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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
Constitutions and the rule of law, which includes adhering to the law, adapting one’s 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:
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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 States
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 States Parties.
39. The African Commission has examined the complaint and the various documents thereto and
decides as follows:
Merits
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 No. 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 [popup=Article 26] All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status[popup] (of the ICCPR), then, applying the 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 ICCPR.
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 Article 27.2; i.e. 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.
And 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 anyone 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 inter-related 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.
Holding
For these reasons, the African Commission finds no violation of the Complainant’s rights as alleged.
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Adopted at the 36 Ordinary Session of the African Commission on Human and Peoples’ Rights,
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23 November 7 December 2004, Dakar, Senegal.