Ras Sankofa Maccabbee v The Commissioner of Police

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ventose, J.
• Judgment Date: 03 May 2019
• Judgment citation (vLex): [2019] ECSC J0503-2
• Docket Number: CLAIM NO. SKBHCV2017/0234
• Court: High Court (Saint Kitts and Nevis)
• Date: 03 May 2019

[2019] ECSC J0503-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SKBHCV2017/0234

In the Matter of sections 3, 9 and 11 of the Constitution of Saint Christopher and Nevis

And

In the Matter of an application by the Claimant, Ras Sankofa Maccabbee for Declarations, Damages and other reliefs alleging a breach of his rights under sections 3, 9 and 11 of the Constitution and redress pursuant to section 18 of the Constitution of Saint Christopher and Nevis

Between:

Ras Sankofa Maccabbee

Claimant

and

1. The Commissioner of Police

2. The Attorney General of Saint Christopher and Nevis

Defendants

Appearances:

The Claimant in person

Mrs. Tashna Powell Williams and Ms. Nisharma Rattan Mack for the Defendants

Mr. Anthony Gonsalves Q.C. appearing as amicus curiae

Ventose, J.

1 The constitutional structure of the Federation of Saint Christopher and Nevis is one based on, among other things, the entitlement of all its people to the protection of fundamental rights and freedoms and the inherent dignity of each individual. These concepts are found in the preamble to the Constitution of Saint Christopher and Nevis. For example, Chapter II of the Constitution contains the provisions relating to the fundamental rights and freedoms while Chapter IV of the Constitution contains provisions relating to Parliament which shall consist of Her Majesty and the National Assembly. Section 37 of the Constitution states that Parliament may, subject to the provisions of the Constitution, make laws for the peace, order and good government of Saint Christopher and Nevis. Chapter V contains provisions relating to the Executive.

2 Section 2 of the Constitution states that it is the supreme law of Saint Christopher and Nevis and, subject to the provisions of the Constitution, if any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Section 96(1) of the Constitution provides that, subject to certain sections, any person who alleges that any provision of this Constitution (other than a provision of Chapter II) has been or is being contravened may, if he or she has a relevant interest, apply to the High Court for a declaration and for relief under this section. Section 96 of the Constitution is found in Chapter IX of the Constitution entitled, “Judicial Provisions”.

3 Section 18(1) of the Constitution provides that if any person alleges that any of the provisions of sections 3 to 17 (inclusive) has been, is being or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the High Court for redress. Section 18(2) states that the High Court shall have original jurisdiction: (a) to hear and determine any application made by any person pursuant to subsection (1); and (b) to determine any question arising in the case of any person that is referred to it pursuant to subsection (3) and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 17 (inclusive): Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

4 It cannot be doubted that any law passed by Parliament under section 37 of the Constitution, irrespective of the nature and content of that law, must not contravene any of the provisions of the Constitution including but not limited to the provisions relating to the fundamental rights and freedoms found in Chapter II of the Constitution. Any person with a relevant interest can apply to the High Court for a declaration and for relief under section 96 if any provision of the Constitution has been or is being contravened. Pursuant to section 18 of the Constitution, the High Court has original jurisdiction to determine any application for constitutional redress brought before it and the High Court may make such declarations and orders as it considers appropriate for enforcing any provision of the fundamental rights and freedoms.

5 I wish therefore to dispel the notion that there is any law made by Parliament that cannot be struck down for contravention of one or more of the provisions of the Constitution. There is no law passed by Parliament, irrespective of the subject matter, that cannot be subject to constitutional scrutiny by the High Court for compliance with the provisions of the Constitution. It is the duty of the High Court to uphold the Constitution against contraventions by either the Executive or Parliament and where contraventions are found to exist, to grant declarations and appropriate relief to any person with a relevant interest whose fundamental rights and freedoms have been or are being contravened. In Cohens v State of Virginia 19 U.S. 264, 5 L. Ed. 257 (1821), the great Chief Justice of the United States John Marshall stated (at p. 56) that:

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

6 In Cable and Wireless Dominica Limited v Marpin Telecoms and Broadcasting Company [1999] ECSCJ No. 33, Redhead J.A. quoted the following from Basu in his Commentary on the Constitution of India (5th Edition, 1965) (at 226):

Judges are bound by their oath to support the provisions of the constitution and to give effect to its commands irrespective of their views of the wisdom of such provision. Hence, where the constitutionality of a statute is properly raised before the court and it is clear that it transgresses the authority vested in the legislature by the constitution, the judges cannot shrink from their duty to declare the statute unconstitutional. The court should not be deterred from this duty by such considerations such as:-

• (i) That the Executive might take political action in disregard of the court's judgment;

• (ii) That serious consequences in the economic or social sphere will result from the declaration of unconstitutionality;

• (iii) That the violation of the constitution is small in its degree or extent. The duty of the court in this behalf is higher where fundamental rights are involved.

  It is the constitutional duty of the courts to be vigilant and to resist even petty encroachment upon the fundamental rights, privileges and immunities of the people.

• (iv) That, in the opinion of the court, the impugned statue or other act is highly beneficial;

• (iv) That the statute has been in operation for a long time.

7 On appeal, the Privy Council in Marpin (2000) 57 WIR 141 implicitly accepted the underlying rationale of Redhead J.A. when it stated that the right to freedom of communication would be a fragile thing if it could be overridden by general political or economic policy (at p. 151). The Board continued that the need for judicial restraint cannot be allowed to discourage courts from a firm performance of their proper constitutional role (ibid). That role, in my view, is to, among other things, ensure that the fundamental rights and freedoms of all persons are not contravened by the Executive or Parliament. Therefore, the factors mentioned by Basu are irrelevant considerations to the task upon which I am about to embark, namely, to determine the boundaries of Parliamentary power when it is alleged that any law contravenes the provisions of the Constitution of Saint Christopher and Nevis, particularly when that alleged contravention concerns the fundamental rights and freedoms in the Constitution founded upon the inherent dignity of each individual. It is against this background that the issues in this case are to be determined.

8 Rastafari is a relatively young religion, which has its roots in Jamaica in the 1930s. This development followed the coronation of Haile Selassie I as King of Ethiopia in 1930. Rastafarians believe Haile Selassie is God and that he will return to Africa members of the black community who are living in exile as the result of colonization and the slave trade. Rastafari theology developed from the ideas of Marcus Garvey, a political activist who wanted to improve the status of fellow black people.

9 The Claimant is a Rastafarian and has been practicing his religion for over 23 years. The Claimant avers that on 24 October 2012 he was arrested by police officers and later charged with offences of possession of cannabis with intent to supply and cultivation of cannabis contrary to sections 6(2), 6(3) and 7(1) respectively of the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act CAP. 9.08 of the Laws of Saint Christopher and Nevis (the “ Drugs Act”). The Claimant was found guilty by the magistrate of the offences of possession and cultivation of cannabis but acquitted of the offence of possession with intent to supply. He was sentenced to one (1) month in prison for cultivating cannabis and fined $5,000.00 to be paid in one (1) month for the offence of possession of cannabis. The Claimant appealed his conviction and sentence, and in that appeal raised the issue of the constitutionality of sections 6(2) and 7(1) of the Drugs Act. The appeal was stayed by the Court of Appeal to...