Mwamuye urges national cannabis debate despite rejecting Rastafarian case

The High Court of Kenya, in a landmark ruling by Justice Bahati Mwamuye on July 15, 2026, dismissed a petition by the Rastafari Society of Kenya seeking a religious exemption for the use of cannabis. The petitioners had argued that the criminalization of cannabis, a sacred sacrament in their faith, violated their constitutional rights to freedom of religion. While rejecting the plea due to insufficient evidence on the centrality of cannabis to the faith and failure to exhaust statutory remedies, Justice Mwamuye concurrently urged a national debate on Kenya's cannabis policy. He highlighted a growing disconnect between existing laws and evolving public attitudes, questioning the allocation of limited law enforcement resources to minor cannabis offenses amidst more serious crimes. This decision, while upholding the current legal framework, signals a judicial recognition of the need for policy re-evaluation.

In a highly anticipated judgment delivered on July 15, 2026, the High Court of Kenya at Milimani, presided over by Justice Bahati Mwamuye, dismissed a constitutional petition filed by the Rastafari Society of Kenya. The petition sought a religious exemption from the provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, which criminalizes the possession, cultivation, and use of cannabis. The Rastafarian community contended that cannabis, or "bhang," is a sacred sacrament integral to their worship and spiritual practices, and its prohibition infringed upon their constitutional rights to freedom of religion, conscience, and belief.

Despite rejecting the petitioners' specific plea, Justice Mwamuye dedicated a significant portion of his ruling to an impassioned call for a national dialogue on Kenya's cannabis policy. He observed a palpable disconnect between the prevailing legal framework and the changing societal attitudes towards the drug, suggesting that the "status quo appears untenable." This judicial pronouncement, while maintaining the illegality of cannabis, underscores a growing recognition within the judiciary of the need for a comprehensive re-evaluation of drug laws in Kenya, moving beyond a purely punitive approach to one that considers social realities and resource allocation.

The legal landscape surrounding cannabis in Kenya is primarily governed by the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 (Cap. 245 of the Laws of Kenya). This Act broadly prohibits the cultivation, possession, and use of cannabis, classifying it as an illegal substance. Penalties for offenses under the Act are severe, with possession for personal consumption potentially leading to up to ten years imprisonment or a fine of up to KSh 250,000 (approximately $2,000), or both, while trafficking carries even stiffer penalties, including life imprisonment for serious offenses.

The Rastafari Society of Kenya's petition, filed in 2021, challenged sections 3, 5, and 6 of this Act, arguing that they violated fundamental rights enshrined in the Constitution of Kenya, particularly Article 32, which guarantees freedom of conscience, religion, belief, and opinion. The community asserted that cannabis is a central element of their spiritual practices, used for meditation, enlightenment, and connection with their deity, Jah. They sought a limited exemption for sacramental use in private settings and designated places of worship, rather than a blanket legalization.

Justice Mwamuye's judgment, while acknowledging Rastafarianism as a religion deserving of constitutional protection under Article 32, ultimately found against the petitioners. The court held that the Rastafari Society of Kenya had failed to discharge the burden of proving that cannabis is an essential tenet of their faith, citing inconsistent and insufficient evidence presented by witnesses. Furthermore, the court found the petition to be premature, as the applicants had not demonstrated that they had exhausted available statutory remedies, such as applying for licenses or exemptions under the existing Act, before seeking constitutional intervention.

The High Court also affirmed that any limitation of the petitioners' rights was reasonable and justifiable under Article 24 of the Constitution, given the legitimate objectives of protecting public health and safety. The State, represented by the Attorney General and the National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA), had consistently argued that the prohibition on cannabis was necessary for public health and safety and aligned with international conventions on narcotic control. They also raised concerns that granting a religious exemption could create legal loopholes and undermine anti-drug enforcement efforts.

However, the most striking aspect of the ruling was Justice Mwamuye's broader commentary on Kenya's drug policy. He noted the widespread use of cannabis across the country, observing its ubiquity in popular culture and the open sale of cannabis-derived products. The judge questioned the efficacy and appropriateness of deploying scarce law enforcement and prosecutorial resources to address minor cannabis offenses, especially when these resources are also needed to combat grave crimes like sexual offenses, robberies with violence, and assaults. This judicial observation echoes sentiments seen in other jurisdictions, such as South Africa, where the Constitutional Court decriminalized the private use of cannabis, and Jamaica, which has decriminalized limited sacramental use, highlighting a global trend towards re-evaluating cannabis prohibition.

The High Court's decision in *Rastafari Society of Kenya and Mwendwa Wambua v Attorney General* represents a complex outcome for cannabis policy in Kenya. While the immediate legal status of cannabis remains unchanged, with no religious exemption granted, Justice Mwamuye's strong recommendation for a national debate signifies a critical shift in judicial discourse. This call for a "full and frank conversation" on cannabis policy, acknowledging the disconnect between law and public attitudes, is a clear signal to the legislative and executive branches to consider comprehensive drug policy reform.

Practitioners should advise clients that the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, remains fully in force, and cannabis use, possession, or cultivation continues to carry severe penalties. However, the judgment opens a window for future legislative action. Legal professionals should closely monitor parliamentary discussions and public engagement initiatives that may arise from this judicial urging. The appeal of this decision to the Court of Appeal, as indicated by the petitioners' lawyer, Shadrack Wambui, will also be a crucial development to watch, as it could further shape the interpretation of religious freedoms against public health legislation in Kenya.