The High Court has upheld Kenya’s ban on cannabis but urged the country to begin a national conversation on its future, noting that the current approach to the drug appears increasingly untenable.
In a judgment delivered on Wednesday, Justice Bahati Mwamuye dismissed a constitutional petition by the Rastafari Society of Kenya seeking a religious exemption to use cannabis as a sacrament.
“The petitioners have not discharged the burden of proving that the impugned provisions of the Narcotic Drugs and Psychotropic Substances Control Act violate their constitutional rights,” the judge ruled.
The judge, however, used part of his ruling to question whether Kenya should continue treating the issue as it has for decades.
Justice Mwamuye said cannabis use has become widespread across the country and is no longer an issue affecting only the Rastafarian community.
“This is not a question for the Rastafarian community only. It is a national question that cuts across the entire spectrum of our society,” Justice Mwamuye said.
He said products containing cannabinoids are now sold openly in mainstream shops and supermarkets, while cannabis-themed imagery and references are common in music, public transport and popular culture.
According to the judge, many prominent Kenyans have publicly admitted to either past or present cannabis use, demonstrating how attitudes towards the drug have evolved over the years.
Without advocating for the legalisation of cannabis, Justice Mwamuye said Kenya should have a “full and frank conversation” on the issue, including whether the country’s limited law enforcement and prosecutorial resources should continue to be deployed against people found with small amounts of the drug.
He further observed that the same resources are required to investigate and prosecute serious offences such as robbery with violence, sexual offences and assaults.
“The status quo appears untenable,” the judge said, adding that Kenya could no longer address the issue “as the proverbial ostrich does by burying our collective heads in the sand.”
Even so, the court maintained that any change in the country’s cannabis policy lies with the appropriate institutions and not the judiciary.
“The petitioners have also not exhausted the available legal and administrative mechanisms before invoking the constitutional jurisdiction of this court,” the judge observed.
Justice Mwamuye ultimately upheld the constitutionality of the Narcotic Drugs and Psychotropic Substances (Control) Act, finding that the petitioners had failed to demonstrate that the disputed provisions violated their constitutional rights.
The petition had been filed by the Rastafari Society of Kenya.
They challenged provisions of the Act criminalising the possession, use and cultivation of cannabis, arguing that the drug is a sacred sacrament central to the practice of the Rastafari faith.
The petitioners contended that the law violated their rights to freedom of religion, privacy, dignity, equality and freedom of association.
They clarified that they were not seeking the wholesale decriminalisation of cannabis but only a limited exemption allowing members of the Rastafari faith to use it privately during worship and in designated places of worship.
The Attorney General, the Kenya Law Reform Commission and the National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA) opposed the petition, maintaining that the law serves the legitimate objective of protecting public health and safety.
They argued that the petitioners had not demonstrated that cannabis use is an essential tenet of the Rastafari religion and warned that creating a religious exemption would be difficult to regulate and could create loopholes for abuse and diversion into illegal markets.
In dismissing the case, Justice Mwamuye found that the evidence presented on the centrality of cannabis to the Rastafari faith was inconsistent and insufficient to establish that its use is an essential element of the religion.
Further, the judge held that any limitation of the petitioners’ rights was reasonable and justifiable under Article 24 of the Constitution because the impugned provisions pursue the legitimate and pressing objective of protecting public health and safety.
The court consequently dismissed the amended petition dated 2021, in its entirety.
