https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11816

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION MILIMANI LAW COURTS PETITION NO. E175 OF 2021** **IN THE MATTER OF ARTICLES 2(1), (5) AND (6), 3(1), 10(1), 19, 20(1),(2),(3)(a), 4(a), (b), 21, 22(1) & (2)(b) and (c), 23(1), 24, 27, 28, 31, 32, 165(3)(b) and (d),(i), 258, 259 AND 260 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 10, 27, 28, 31, 32, 36 AND 56(d) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013.** **AND** **IN THE MATTER OF THE ALLEGED CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER INTERNATIONAL TREATIES OR CONVENTIONS PURSUANT TO ARTICLE 2(6) OF THE CONSTITUTION OF KENYA SPECIFICALLY: ARTICLES 17 AND 18(1)(2) & (3) OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS, ARTICLE 8 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS AND ARTICLES 12 AND 18 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS.** **AND** **IN THE MATTER OF THE CONSTITUTIONALITY OF SECTION 3(1), 2(a), 5(1), (a), (b), (d), 2, 3 AND 6(a), (b) OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (CONTROL) ACT NO. 4 OF 1994, LAWS OF KENYA.** **AND** **IN THE MATTER OF THE DECRIMINALIZATION OF USE OF MARIJUANA AMONG PEOPLE OF RASTAFARI FAITH FOR RELIGIOUS PURPOSES.** **BETWEEN** **RASTAFARI SOCIETY OF KENYA (RSK)..............................................1ST PETITIONER MWENDWA WAMBUA alias RAS PROPHET....................................2ND PETITIONER MUNAYI OPONDO ISAAC (MOI).....................................................3RD PETITIONER** **VERSUS** **THE ATTORNEY GENERAL............................................................1ST RESPONDENT THE KENYA LAW REFORM COMMISSION.....................................2ND RESPONDENT** **AND** **THE NATIONAL AUTHORITY FOR THE CAMPAIGN AGAINST** **ALCOHOL AND DRUG ABUSE (NACADA)………………………………….INTERESTED PARTY** **JUDGMENT** **INTRODUCTION** 1. *“ Ukiamka kwenda Church, mi huamka kuvuta bangi;* *Mi huvuta bangi ndio ni deal na mashetani;* *Mi hukula bangi zishike zikiwa ndani;* *Nakama hupendi bangi wee ni mtoto wa shetani.”* 1. Those lyrics, penned by **‘Just Imagine Africa’** and contained in the song understandably titled ***‘Bangi’***, are just one drop in the veritable ocean of cultural expressions that situate cannabis as a means for spiritual peace and enlightenment. 2. The Amended Petition dated 24th May 2021, which this Judgment determines, resonates with that broad theme. The Petitioners are the Rastafari Society of Kenya (the 1st Petitioner), a registered umbrella body bringing together adherents of the Rastafari faith, Mwendwa Wambua alias Ras Prophet (the 2nd Petitioner), its spokesperson and Munayi Opondo Isaac (MOI) (the 3rd Petitioner), a subsequent joinder. They challenge the constitutionality of several provisions of the **Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994** (hereinafter "the Act"), which criminalize the possession, use, and cultivation of cannabis, which they contend is a sacred sacrament integral to the practice of their Rastafari faith. 3. The Amended Petition is brought against the Attorney General, as the Principal Legal Advisor to the Government, and the Kenya Law Reform Commission, the statutory body mandated to review and reform the law established under the **Kenya Law Reform Commission Act, 2013** to systematically review all Kenyan laws, ensuring they are modern, relevant, and harmonized with the **Constitution of Kenya, 2010** 4. Subsequently, the National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA) applied to be joined to the proceedings and was, by consent, joined as the Interested Party. 5. The core of the Petitioners' grievances are that the impugned provisions of the Act are overbroad and discriminatory. The Petitioners argue that those provisions, by imposing an absolute prohibition on personal or spiritual cannabis use, fail to accommodate the private, sacramental use of the plant by Members of the Rastafari faith, thereby violating their fundamental rights to Freedom of Religion (Article 32), Privacy (Article 31), Dignity (Article 28), Equality and Freedom from Discrimination (Article 27), and Freedom of Association (Article 36). 6. The Petitioners do not seek the blanket decriminalization of cannabis. Their case is circumscribed to only seeking an exemption for its use in private worship and designated places of worship within the Rastafari Faith. They argue that the State's legitimate interests in controlling narcotics can be achieved through less restrictive means, as evidenced by the existing exemptions for medicinal and scientific research purposes. 7. The Respondents and the Interested Party vehemently opposed the Amended Petition. The Attorney General filed Grounds of Opposition and comprehensive written submissions, arguing that the Act enjoys a presumption of constitutionality, serves the pressing public purpose of safeguarding public health and safety, and that the Petitioners have not demonstrated that the use of cannabis is an essential or integral tenet of their faith. 8. The Attorney General further contends that granting a religious exemption would be impractical to enforce, would create a loophole for abuse and diversion into illicit markets, and would violate Kenya's treaty obligations pursuant to several international conventions. 9. NACADA's case similarly underscores various public health risks of cannabis, including dependency, cognitive impairment, and mental health disorders, as documented in its national surveys. NACADA argues that the limitation of the Petitioners' rights is reasonable and justifiable under Article 24 of the Constitution. 10. This Court conducted a full hearing of the Petition, where the Petitioners called three witnesses to whom were examined, cross-examined, and re-examined. The Respondents did not call any witnesses, relying instead on their filed pleadings and submissions. The Interested Party, while having filed a Replying Affidavit, did not avail the deponent of the same for viva voce testimony. **THE PETITIONERS' CASE** 1. From their respective examinations-in-chief, the Petitioners’ witnesses contended to various degrees that cannabis, known to them as *" the holy herb,"* is a central and indispensable sacrament in the Rastafari faith. It is used in private meditation and in communal "reasoning" sessions, which are religious gatherings in tabernacles where believers debate and seek spiritual enlightenment. The use of cannabis, as testified by the witnesses, is a means of achieving **"cosmic consciousness"** and establishing a deeper connection with "JAH," the Creator. The 2nd Petitioner explained that the basis for this practice is grounded in biblical scripture, citing Genesis 3:18 (“...thou shall eat the herb of the earth”), Psalms 104:14 *(“...and the herb for the service of man”)*, and Revelations 22:2 regarding the tree of life whose leaves are for the healing of nations. The 3rd witness for the Petitioners, Reuben Abasa Nyangolo, a self-described diviner and traditional healer, testified extensively on the spiritual and historical foundations of the Rastafari faith and the distinction between Cannabis Sativa and Cannabis Indica, contending that the latter is the type that can induce negative effects when overused. 2. The witnesses maintained that the use of cannabis is strictly regulated within their community. It is confined to adults, with minors not permitted to partake in its use. PW1, Wambua Mwendwa, testified that the community has internal controls, including the use of a chalice (a water pipe) during worship and a strict prohibition on using it in the presence of minors. He also noted that cannabis is used in varied forms including smoking, burning as incense, eating, drinking, and bathing, all within private settings or designated tabernacles. The Petitioners' evidence further demonstrated that the Rastafari faith has established places of worship, known as tabernacles or mansions, across Kenya. 3. Turning now to their written submissions, the Petitioners' case is anchored on the supremacy of the Constitution and the expansive protection of fundamental rights. They submit that the Bill of Rights must be interpreted generously and purposively, as mandated by Articles 20 and 259, and that any limitation on these rights must satisfy the strict justificatory burden under Article 24. 4. The central contention is that the Act violates their rights to equality and non-discrimination under Article 27, human dignity under Article 28, privacy under Article 31, freedom of conscience and religion under Article 32, and freedom of association under Article 36. They contend that the Act, by criminalizing the possession and use of cannabis, compels them to choose between obeying the law and adhering to their religious obligations. In this regard, they draw a parallel with the South African case of ***Christian Education South Africa v Minister of Education* (CCT4/00) [2000] ZACC 11**, where the court warned against placing believers in a position where they must choose between their faith and the law. 5. The Petitioners rely heavily on the South African jurisprudence from the ***Prince***cases. In ***Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1*** (“Prince 1”), the court recognized that Rastafari is a religion and that the prohibition on cannabis manifestly limits their rights to practice their religion. The court in ***Prince 1*** expressly held that the existence of a law that punishes the practice of the Rastafari religion degrades and devalues its followers and strikes at the very core of their human dignity. The Petitioners urge this Court to adopt similar reasoning. 6. The Petitioners further rely on the South African High Court decision in ***Prince v Minister of Justice and Constitutional Development and Others; (4153/2012) [2017] ZAWCHC 30***(“Prince 2”) and the subsequent Constitutional Court decision in ***Minister of Justice and Constitutional Development and Others v Prince (CCT108/17) [2018] ZACC 30***, which held that the criminalization of private and personal cannabis use by an adult was an unjustifiable limitation on the right to privacy. They also cite the Alaskan Supreme Court decision in ***Ravin v State of Alaska (1975),*** which recognized a fundamental right to privacy within one's home, extending to the possession and consumption of cannabis for personal, non-commercial use. 7. The Petitioners argue that these cases are directly on point and mirror the present dispute, particularly as the ***Prince***cases evolved from a freedom of religion argument to a privacy argument, a trajectory they invite this Court to follow. 8. A significant pillar of the Petitioners' case is the failure of the Respondents to adduce any evidence to justify the limitation. The Petitioners point out that the Attorney General only filed Grounds of Opposition, articulating policy objectives, and that NACADA filed a replying affidavit containing mere averments without annexing any empirical data, reports, or other evidentiary material. The Petitioners contrast this with the South African cases where the State presented expert evidence, statistics, and related material. They argue that in the absence of such evidence, the Respondents have failed to discharge their burden of proof under Article 24(3). They contend that the State cannot rely on general assertions of public interest but must demonstrate, with specificity, why a narrowly tailored religious exemption would undermine its objectives. 9. The Petitioners maintain that their claim is not a novel one but is supported by global and scientific developments. They cite the evolving international standards, including the World Health Organization's (WHO) related developments on cannabis scheduling, and the decriminalization trends in various jurisdictions. They also place reliance in the United States Supreme Court case of ***Gonzales v O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006)****,* which upheld a religious exemption for the sacramental use of ayahuasca, a Schedule I controlled substance. The Court in that case rejected abstract assertions of harm and required the government to demonstrate why denying a narrowly tailored religious exemption was the least restrictive means of achieving its objectives. 10. In terms of reliefs, the Petitioners seek declaratory orders that the impugned sections are unconstitutional. In the alternative, they seek a “reading-in” order to exempt them from criminal liability for the possession, use, and cultivation of cannabis for religious purposes within private homes and designated places of worship. They also seek an order directing the Attorney General to undertake a policy review and to place necessary amendments before Parliament. The Petitioners submit that these reliefs are constitutionally sanctioned under Article 23(3) and are the most appropriate means of vindicating their rights. **THE 1ST RESPONDENT'S CASE** 1. The Attorney General opposes the Petition on several grounds. The primary argument is that the impugned legislation enjoys a presumption of constitutionality, a well-established principle in our jurisprudence. The Attorney General cites the case of ***Judith Karigu Kiragu & 2 others v County Government of Nairobi; Attorney General & another (Interested Parties) [2021] KEHC 13317 (KLR)****,* and ***Benjamin & 4 others v Cabinet Secretary Lands, Public Works, Housing and Urban Development & 4 others***, to support this argument. The burden, it is argued, lies squarely on the Petitioners to displace this presumption with cogent and compelling evidence, a burden they have failed to discharge. 2. The Attorney General contends that the Act was enacted for a legitimate and pressing purpose: the regulation of narcotic drugs and psychotropic substances to protect public health, safety, and morality. This objective is in line with the State's constitutional duty under Articles 21 and 43 to safeguard the well-being of its citizens. It is submitted that the Act is a law of general application that is neutral on its face and does not target any particular religion. The Attorney General emphasizes that the fact that a law incidentally affects a religious practice does not render it unconstitutional, citing***Kamau v Attorney General & 14 others [2021] KEHC 450 (KLR),***and the principle from ***Employment Division, Department of Human Resources of Oregon v Smith*, 494 U.S. 872 (1990),** that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability. 3. On the specific claim of religious discrimination, the Attorney General argues that the Petitioners have not proven that cannabis use is an essential or integral tenet of their faith. During cross-examination, the Petitioners' witnesses admitted that they could pray without using cannabis and that one could become a member of the faith even without smoking it. This, in the Attorney General's view, undermines their claim that the prohibition forces them into a “cruel choice” between their faith and the law. It is submitted that the Petitioners' claim is essentially a preference for a specific mode of worship involving a controlled substance, rather than the prohibition of their religion itself. 4. The 1st Respondent also argued that the relief sought would require the Court to usurp the legislative mandate of Parliament, a violation of the doctrine of separation of powers. Reliance is placed on the Court of Appeal's decision in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR***, which emphasizes the need for judicial deference to the legislative branch. It is submitted that the creation of a religious exemption is an inherently legislative and policy-driven determination, requiring technical expertise and public participation, which is beyond the constitutional competence of the judiciary. The Attorney General also invokes Kenya's international obligations under the Single Convention on Narcotic Drugs, 1961, and other drug control treaties, which require strict regulation of cannabis for medical and scientific purposes only. 5. Finally, the Attorney General argues that the Petition is vague and fails to meet the precision threshold for constitutional petitions set out in ***Anarita Karimi Njeru v Republic [1979] eKLR*** and***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra)***. The Petitioners, she contends, have not demonstrated, with precision, how the impugned provisions violate their specific rights, and their allegations remain speculative and unsupported by evidence. **THE 2ND RESPONDENT'S CASE** 1. The Kenya Law Reform Commission (KLRC) was enjoined as the 2nd Respondent. The record indicates that the KLRC did not file any documents in response to the Petition. In his submissions, the 1st Respondent's counsel, noted that the 2nd Respondent did not participate in the proceedings. Therefore, the KLRC's position is neutral and it has not actively opposed the Petition. It is taken to have abided by the Court's decision. The Court's analysis of the issues will therefore focus on the substantive arguments raised by the parties who actively participated in the proceedings, namely the Petitioners, the 1st Respondent, and the Interested Party. **THE INTERESTED PARTY'S (NACADA'S) CASE** 1. The National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA), as the lead national agency on drug abuse, opposes the Petition with a strong emphasis on public health and scientific evidence. It asserts its *locus standi* and competence under the NACADA Act, No. 14 of 2012, to coordinate and advise on drug control policies. Its primary submission is that cannabis is a psychoactive substance with scientifically established risks, including dependency, cognitive impairment, mental illness, and adverse social outcomes. NACADA relies on its 2022 National Survey, which shows cannabis as the most widely used illicit drug in Kenya, with a rapidly rising prevalence and high indicators of dependency. It argues that these realities justify strict regulation to protect public health and that any relaxation would foreseeably worsen harm and strain health systems. 2. NACADA rejects the notion of an absolute sacramental right to cannabis, arguing that freedom of religion does not exempt compliance with neutral laws enacted in the public interest. It points to Kenyan jurisprudence, including ***Kevin Muchemi v Attorney General & 2 Others (Petition 2 of 2014),***where the High Court at Nyeri upheld the constitutionality of the Act's provisions on cannabis cultivation and possession. NACADA contends that granting a faith-based exemption would raise serious concerns of equality under Article 27, enforceability, and would create loopholes exploitable by criminal networks. 3. On comparative and international practice, NACADA argues that limited reforms in jurisdictions like Jamaica and South Africa are not analogous. While noting the South African Constitutional Court's decision in***Minister of Justice and Constitutional Development and others v Prince and others [2018] ZACC 30***, which decriminalized private personal use of cannabis, NACADA emphasizes that this decision was based on the right to privacy, not religion. Furthermore, it argues that the South African court's orders were narrow and did not create a blanket religious exemption. Kenya, NACADA submits, has adopted no such reforms, and it would be a violation of separation of powers for the Court to create a judicial exemption. 4. NACADA also underscores Kenya's binding international obligations under the Single Convention on Narcotic Drugs, 1961, and other treaties, which require the State to regulate cannabis strictly for medical and scientific purposes only. It argues that there is no duty under these conventions to create religious exemptions. In response to the Petitioners' evidence, NACADA characterizes it as theological and anecdotal, incapable of displacing public health policy or Parliament's policy space. It concludes by urging this Court to dismiss the Petition, or at minimum, deny the reliefs that would undermine Kenya's drug control framework. **ANALYSIS AND DETERMINATION** 1. From the pleadings and submissions, three issues arise for determination: 2. ***Whether the Petitioners have exhausted the available legal mechanisms before invoking the constitutional jurisdiction of this Court.*** 3. ***Whether the Petitioners have established that the impugned provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, violate their fundamental rights and freedoms as guaranteed under the Constitution.*** 4. ***Whether the limitation of the Petitioners' rights occasioned by the impugned provisions is reasonable and justifiable in an open and democratic society, as required by Article 24 of the Constitution.*** **Whether the Petitioners have exhausted the available legal mechanisms before invoking the constitutional jurisdiction of this Court.** 1. The first question for determination is whether the Petitioners are entitled to invoke the constitutional jurisdiction of this Court directly, without first exhausting the available legal and administrative mechanisms. The Respondents did not expressly raise the doctrine of exhaustion in their pleadings but all Parties addressed the same during both the hearing and submissions stages. Additionally, this Court has a duty to consider whether it has jurisdiction to hear a matter, and the doctrine of exhaustion is a jurisdictional question that goes to the competence of the Court to entertain a claim. I must therefore determine, as a preliminary matter, whether the Petitioners have demonstrated that they have exhausted the existing processes under the Act before seeking constitutional redress. 2. The doctrine of exhaustion is a well-established principle of administrative law and constitutional adjudication. It requires that a party seeking judicial review or constitutional relief must first pursue all available remedies within the administrative or statutory framework before approaching the Court. This principle is rooted in the recognition that administrative and statutory bodies are better equipped to handle certain disputes, and that courts should not be burdened with matters that can be resolved through alternative mechanisms. The doctrine also ensures that the administrative body has the opportunity to correct its own errors and develop a factual record that may assist the court in its review. 3. In ***Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR***, the Court of Appeal emphasized the importance of the exhaustion doctrine, holding that where Parliament has provided a statutory mechanism for dispute resolution, a party must first resort to that mechanism before approaching the Court. The Court stated that the doctrine is not a mere technicality but a substantive principle of law that promotes efficiency and ensures that courts do not usurp the functions of other bodies. 4. The Narcotic Drugs and Psychotropic Substances (Control) Act itself provides a mechanism for the lawful possession and use of cannabis. Section 3(3) of the Act exempts certain categories of persons from criminal liability for possession of narcotic drugs, including those who have been issued with a licence pursuant to section 16 of the Act. Section 16 establishes a Board with the power to issue licences for the importation, exportation, diversion, sale, manufacture, production, or distribution of narcotic drugs. Section 84 empowers the Minister to make regulations for carrying out the purposes of the Act, including prescribing standards for narcotic drugs and psychotropic substances and regulating their sale, supply, importation, exportation, manufacture, production, or distribution. 5. The Act therefore contemplates a licensing and regulatory framework that permits the controlled use of cannabis under specified conditions. The Petitioners, however, have not demonstrated that they have made any application for a licence or exemption under Section 16 or Section 84 of the Act. Whereas 1st Petitioner annexed a letter to the Court demonstrating that he had made applications to the relevant authorities to be licensed, the same was insufficient and does not provide compelling evidence that the Petitioners have exhausted the statutory mechanisms available to them. The Petitioners have not shown that they have formally applied for a licence to possess or use cannabis for religious purposes, or that they have sought to challenge any refusal of such an application through the appropriate statutory channels. 6. In ***Wahome v Public Health Officers & Technicians Council & another [2023] KEHC 2680 (KLR)****,* the High Court held that a party seeking constitutional relief must demonstrate that they have exhausted other available remedies unless they can show that such remedies are impractical, unavailable, or unsuitable. The Court emphasized that constitutional litigation should not be used as a shortcut to bypass statutory mechanisms that are designed to address the very issues the party complains of. 7. The Petitioners have not made such a demonstration. They have not shown that the licensing process under the Act is impractical or unavailable. Indeed, the Act provides for exemptions for medicinal, research, and analytical purposes, which demonstrates that Parliament has contemplated a system of controlled access to cannabis. The Petitioners have not explained why a similar exemption cannot be sought through the existing statutory framework, subject to appropriate safeguards and conditions. 8. The principle of exhaustion is particularly relevant in this case because the relief sought by the Petitioners is essentially a request for a religious exemption from a criminal prohibition. The Act itself provides a mechanism for exemptions, and the Petitioners should have first exhausted that mechanism before seeking constitutional intervention. The Supreme Court in ***Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR)*** held that the exhaustion doctrine applies even where constitutional rights are alleged to have been violated, unless the administrative remedy is demonstrably inadequate. In arriving at the decision, the Court had the following to say: - ***“Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism. See also our decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others (Pet No 15 of 2020) [2023] KESC 14(KLR) (Const. and JR) (17 February 2023) (Judgment).”*** 1. The Petitioners have argued that the Board under Section 16 has not been constituted, rendering the licensing process redundant. However, the record shows that there is an existing Board under section 3B(2) of the Pharmacy and Poisons Act, which regulates the licit use of narcotic substances. In the case of ***Ochola & 2 others v Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 3 others; Pharmacy and Poisons Board & 3 others (Interested Parties) [2023] KEHC 27292 (KLR),***the High Court found that the provisions of the Narcotic Drugs and Psychotropic Substances Act are legally sufficient for the purposes specified therein, and that the doctrine of implied repeal applies to the Pharmacy and Poisons Act. The Court held that there is no unconstitutionality of Sections 16 and 84 of the Act by virtue of the doctrine of implied repeal. This finding suggests that the licensing framework under the Act is operable and that the Petitioners should have pursued that avenue. 2. The Petitioners have also failed to demonstrate that the statutory mechanisms are unsuitable for their claim. The claim is essentially that the Act violates their religious rights by criminalizing their sacramental use of cannabis. This is precisely the kind of issue that a licensing board could consider. The Petitioners could have applied for an exemption, and if their application was refused, they could have challenged that refusal through judicial review or other appropriate mechanisms. By coming directly to this Court, the Petitioners have bypassed a process that is designed to handle such claims in the first instance. 3. In the South African ***Prince*** cases, the claimant, Mr. Prince, had actually applied to register his contract of community service with the Law Society, which required him to disclose his previous convictions and his intention to continue using cannabis. This was an administrative process that he had exhausted, and his claim was ultimately about the constitutionality of the legislation itself. In contrast, the Petitioners in this case have not shown that they have engaged with the statutory framework at all. They have not applied for an exemption, and they have not been refused one. Their claim is therefore premature. 4. Furthermore, the Petitioners' reliance on the constitutional jurisdiction under Articles 22 and 258 does not obviate the need to exhaust other remedies. The constitutional court should exercise its jurisdiction with caution, particularly where Parliament has provided a specific mechanism for addressing the grievance. 5. The statutory framework would also address the Attorney General’s public interest concerns as to the fact that the public interest may be imperiled by the judicial grant of a broad religious exemption that would be impractical to enforce, would create a loophole for abuse and diversion into illicit markets. The board would be able to address such concerns by applying a case-by-case targeted assessment of individual applications to verify if they are merited. This would also allow the board, if it were to allow for religious-based licences to be issued, to sieve out applicants who were only claiming to be Rastafari for the purposes of cannabis use. 6. The board may very well decline to issue religious-based licences upon being moved. Whether such an action would be lawful may be the subject of future litigation, if it comes to it, and so I will say nothing more on this point. 7. In conclusion on this limb, I find that the Petitioners have not exhausted the available legal and administrative mechanisms under the Narcotic Drugs and Psychotropic Substances (Control) Act. They have not demonstrated that they have applied for a licence or exemption under the Act, nor have they shown that such an application would be futile or that the statutory mechanisms are unavailable or unsuitable. The doctrine of exhaustion requires that they first pursue these remedies before invoking the constitutional jurisdiction of this Court. I therefore find and hold that the Petition is premature and the Court lacks jurisdiction to entertain it at this stage. **Whether the Petitioners have established that the impugned provisions violate their fundamental rights** 1. The Petitioners allege violations of Articles 27 (equality and freedom from discrimination), 28 (human dignity), 31 (privacy), 32 (freedom of conscience, religion, belief, and opinion), and 36 (freedom of association). I will consider these alleged violations, beginning with the status of Rastafari as a religion and the centrality of cannabis to its practice. 2. The foundational premise of the Petition is that Rastafari is a religion and that cannabis is a central and indispensable sacrament. I accept that Rastafari is a religion worthy of constitutional protection under Article 32. This is consistent with the finding in ***JWM (alias P) v Board of Management [particulars withheld] High School & 2 others [2019] KEHC 10897 (KLR),*** where Justice Mwita held that “*It follows that it is no longer contestable that Rastafarian is a religion for purposes of constitutional protection*.” This is also consistent with comparative jurisprudence, including ***Reed v Faulkner (7th Cir. 1988)*** and ***In Re Chikweche***(Zimbabwe Supreme Court, 1995), which have recognized Rastafari as a religion. The scholarly article by Midas H. Chawane also concludes that Rastafari possesses enough features to be called a religious movement. I am therefore satisfied that Rastafari is a religion. 3. However, the evidence on the centrality of cannabis to the Rastafari faith is less clear. The Petitioners' witnesses were not consistent on whether the use of the substance was integral to their religion. This inconsistency is significant and undermines the Petitioners' claim that the prohibition forces them into a “cruel choice” between their faith and the law. 4. The 2nd Petitioner, Wambua Mwendwa (PW1), testified that he has used cannabis as part of his religious observance since 1982 and that it is integral to his practice. He emphasized that cannabis is used sacramentally, both in private meditation and in communal "reasoning" sessions. He testified that it helps believers to connect with "Jah" and to achieve spiritual clarity. He also stated that the community regulates its use, confining it to adults and using it in a controlled manner. 5. However, on cross-examination, PW1 made significant concessions. He confirmed that communal “reasoning” could theoretically take place without cannabis. He also admitted that some members of the Rastafari faith do not use cannabis at all. This admission is crucial. If some adherents can practice the faith without using cannabis, it undermines the argument that cannabis is indispensable to the religion. It suggests that cannabis use is a preference or a choice, rather than a doctrinal requirement. 6. The 3rd witness, Reuben Abasa Nyangolo (PW3), a diviner and traditional healer, testified extensively on the spiritual and historical foundations of the Rastafari faith. He described cannabis as a means of spiritual elevation and communion with God. However, even he acknowledged that some adherents may not use cannabis. He was emphatic, however, that for many believers, it remains an inseparable and sacred element of worship. 7. The inconsistency in the witnesses' testimony is significant. While they all agreed that cannabis is used as a sacrament, they could not agree on whether its use is essential or merely preferred. Some witnesses insisted that it is integral, while others conceded that it is not mandatory. This inconsistency undermines the Petitioners' claim that the prohibition forces them to choose between their faith and the law. If cannabis use is not a mandatory requirement, then the prohibition does not create the kind of existential conflict that would warrant constitutional protection. 8. The correct legal standard, as established in comparative jurisprudence, is not whether a practice is indispensable for all adherents, but whether it is a sincere and central manifestation of the faith for the believers who seek its protection. However, the inconsistency in the evidence suggests that there is no consensus within the Rastafari community on the centrality of cannabis use. In ***Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1****,* the South African Constitutional Court found that the prohibition on cannabis manifestly limited the rights of Rastafari to practice their religion. However, in that case, there was no dispute that the use of cannabis was central to the Rastafari faith. The evidence was consistent and undisputed. In the present case, the evidence is inconsistent and contested. 9. The Respondents argued that the Petitioners had not proven that cannabis use is an essential or integral tenet of their faith. Given the inconsistencies in the evidence, I am inclined to agree. The Petitioners' own witnesses admitted that the use of cannabis is not mandatory and that some Rastafari do not use it at all. This suggests that cannabis use is a preferred mode of worship, not a requirement of the faith. The Constitution protects the right to hold and manifest religious beliefs, but it does not protect every form of conduct undertaken in the name of religion. The Petitioners must demonstrate that the conduct sought to be protected is essential to the religion. The inconsistent evidence falls short of this standard. 10. Furthermore, in ***Kamau v Attorney General & 14 others [2021] KEHC 450 (KLR)****,* the Court held that constitutional rights, including those relating to religion, are not absolute and may be subject to limitation in pursuit of the common good. The Court observed that individual liberty does not extend to complete freedom from restraint in all circumstances. In that case, the Court upheld statutory limitations on cultural and religious practices due to the demonstrable harm associated with the practice in question. The Court stated that the Constitution contemplates a directive role of the State in promoting and protecting fundamental rights, and that the State may impose necessary limitations for the protection of public welfare. 11. Similarly, in ***Employment Division, Department of Human Resources of Oregon v Smith, 494 U.S. 872 (1990),*** the United States Supreme Court held that the Free Exercise Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids conduct that his religion requires, if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. The Court emphasized that the right to the free exercise of religion does not include the right to be exempted from generally applicable laws. 12. In the present case, the Petitioners have not demonstrated that the impugned provisions are specifically directed at their religious practice. The Act is a law of general application enacted to protect public health and safety. The fact that it incidentally affects the Petitioners' religious practices does not render it unconstitutional *per se*, especially where the Petitioners have not shown that their religious practices are essential to their faith. The inconsistent evidence on the centrality of cannabis use undermines their claim. 13. I also find that the Petitioners have not established a violation of the right to privacy under Article 31. The right to privacy protects a person's private sphere from unwarranted State intrusion. However, the regulation of narcotic substances is a legitimate and necessary intrusion that is justified under Article 24. The harmful effects of narcotics extend beyond private use and have broader societal implications, including public health burdens and social harm. The Petitioners' attempt to isolate “private use” from broader regulatory concerns is artificial. The nature of narcotic substances is such that private possession, cultivation, and use cannot be effectively contained within private spaces and presents a real risk of diversion, abuse, and distribution. 14. The South African Constitutional Court in ***Minister of Justice and Constitutional Development and Others v Prince (CCT108/17) [2018] ZACC 30****,* recognized the right to privacy in relation to private, personal use of cannabis. However, the Court was careful to limit its holding to the private use of cannabis by adults for personal consumption. The Court did not create a religious exemption. In the present case, the Petitioners are seeking a religious exemption, which is a different and more extensive claim. The South African authorities are therefore distinguishable. 15. I further find that the Petitioners have not established a violation of the right to equality and freedom from discrimination under Article 27. The Act applies uniformly to all persons regardless of religion or belief. The Petitioners' complaint is that the Act does not provide an exemption for their religious practice. However, the failure to provide an exemption does not amount to discrimination under Article 27. The differential treatment between the Petitioners and other groups, such as those with medicinal or research exemptions, is rationally connected to legitimate governmental objectives, including scientific and medical regulation. 16. In ***Hersi Hassan Gutale & another v Principal Registrar of Persons & another [2004] KEHC 98 (KLR)****,* the Court set out the test for discrimination. The Court held that the first question is whether the provision differentiates between people or categories of people. If there is differentiation, the second question is whether it bears a rational connection to a legitimate government purpose. If it does, there is no violation of fundamental rights. If the differentiation amounts to discrimination, the third question is whether it amounts to unfair discrimination. Applying this test, I find that the impugned provisions do not amount to discrimination. The Act applies uniformly to all persons, and any differentiation is rationally connected to legitimate governmental objectives. 17. In conclusion on this limb, I find that the Petitioners have not established that the impugned provisions violate their fundamental rights. The evidence on the centrality of cannabis to the Rastafari faith is inconsistent and does not demonstrate that its use is an essential element of the religion. The right to freedom of religion does not extend to every form of conduct undertaken in the name of religion, and the Petitioners have not shown that the impugned provisions are specifically directed at their religious practice. **Whether the limitation of the Petitioners' rights is reasonable and justifiable under Article 24** 1. Even assuming, arguendo, that the impugned provisions do limit the Petitioners' rights, I find, as I have variously determined above, that the limitation is reasonable and justifiable under Article 24 of the Constitution. The State has demonstrated that the impugned provisions serve a legitimate and pressing purpose: the protection of public health, safety, and welfare. This objective is in line with the State's constitutional duty under Articles 21 and 43 to safeguard the well-being of its citizens. 2. Article 24(1) provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. The factors to be considered include the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the need to ensure that enjoyment of rights by one individual does not prejudice the rights of others, and the relation between the limitation and its purpose, including whether there are less restrictive means to achieve that purpose. 3. The State has a compelling interest in protecting the public from the harms associated with cannabis use. NACADA's evidence, as set out in its replying affidavit, establishes that cannabis is a psychoactive substance with documented risks, including dependency, cognitive impairment, mental health disorders, and adverse social outcomes. NACADA's 2022 National Survey shows that cannabis is the most widely used illicit drug in Kenya, with over 500,000 persons reporting current use. The survey further established that cannabis use has increased by approximately 90% over the past five years, with the age of initiation reported to be as low as eight years. Approximately 47% of current cannabis users exhibit indicators of dependency or problematic use. 4. The scientific evidence on the risks of cannabis use is well-documented. Studies have established that cannabis use during adolescence is associated with reduced IQ scores, impairments in verbal learning and memory, deficits in attention and processing speed, and reduced executive functioning. Cannabis use is also associated with increased risk of mental health disorders, including psychosis, depression, and anxiety. The risk of developing cannabis dependence is significant, with approximately 9% of individuals who use cannabis developing dependence, increasing to 17% for those who begin use in adolescence. 5. The State also has a compelling interest in preventing the diversion of cannabis into illicit markets. Cannabis trafficking is frequently associated with transnational criminal syndicates, money laundering, and violent crime. Any relaxation of criminal controls or creation of exemptions based on religious or cultural claims would create enforcement loopholes that could be exploited by traffickers to disguise illicit cultivation, distribution, and movement of cannabis under the guise of protected religious practice. This would undermine the State's ability to combat drug trafficking and organized crime. 6. In ***Ochola & 2 others v Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 3 others; Pharmacy and Poisons Board & 3 others (supra),*** the High Court upheld the constitutionality of the Narcotic Drugs and Psychotropic Substances (Control) Act. The Court found that the legislative framework, including the licensing regime under Section 16, was not unconstitutional and that the Act's object and purpose is to control the possession, trafficking, smoking, and cultivation of cannabis. The Court emphasized the importance of respecting legislative judgments in matters of public health policy and stated that courts must exercise restraint when reviewing legislative choices in such domains. 7. The Petitioners have argued that less restrictive means are available, including the creation of a religious exemption. However, this argument is speculative and unsupported. The Petitioners have not placed before this Court any concrete, workable, or enforceable framework capable of regulating the cultivation, possession, and use of cannabis within a religious context. In the absence of such a framework, the Court cannot assume that a less restrictive alternative exists. The Petitioners have also failed to demonstrate that the creation of a religious exemption would not undermine the State's legitimate objectives in regulating narcotic substances. 8. The Petitioners have also failed to demonstrate that the use of cannabis is an indispensable or mandatory component of Rastafari worship. As discussed earlier, the evidence on this point was inconsistent, with some witnesses conceding that cannabis use is not mandatory. This suggests that the limitation does not impose a significant burden on the Petitioners' religious rights. The Petitioners can still practice their religion without using cannabis, as some of their own members do. The limitation is therefore not as severe as the Petitioners claim. 9. I also note the absence of a regulatory framework proposed by the Petitioners. The Petitioners have not addressed the practical challenges that would arise from the creation of a religious exemption. These challenges include the need to verify the religious status of individuals claiming the exemption, define the scope of permissible religious use, establish quantity limits, ensure that cannabis used for religious purposes is not diverted to non-religious use, protect vulnerable populations, including children and youth, and address public health and safety concerns. These are complex policy issues that are best addressed by the legislature, not the courts. 10. In conclusion under this limb, I find that the limitation of the Petitioners' rights, if any, is reasonable and justifiable under Article 24. The impugned provisions serve a legitimate and pressing purpose, namely the protection of public health and safety. The limitation is proportionate to the objective, and there are no less restrictive means available that would achieve the same purpose. The Petitioners have failed to demonstrate that the creation of a religious exemption would be workable or that it would not undermine the State's legitimate objectives. **CONCLUSION** 1. As I conclude, while the Amended Petition herein was not on the question of a wholescale decriminalization of cannabis use in Kenya, a few thoughts on the topic within this judgment would be apt. 2. It is beyond dispute that use of cannabis in this country has become ubiquitous, and has arguably been so for many decades. Indeed, the Petitioners showed that products that contain cannabinoids are being freely sold in mainstream shops and supermarkets. So called ‘weed cookies’ are openly marketed, sold, and consumed in our country. Many prominent Kenyan personalities have even admitted to past or present cannabis use; and being associated with it no longer has the ‘shock effect’ it had in former times. 3. Internationally, Peter Tosh’s seminal 1976 ode to the decriminalization campaign, the song **“Legalize it”** , has two stanzas that speak clearly on where many modern societies have reached *vis-à-vis* cannabis: *“ Singers smoke it;* *And players of instruments too;* *Legalize it, yeah, yeah;* *That’s the best thing you can do.* *Doctors smoke it;* *Nurses smoke it;* *Judges smoke it;* *Even Lawyers too,”* 1. As I stated at the beginning of this Judgment, we are awash with cultural expressions touching on cannabis use. Beyond music, many of our public service vehicles, and in particular *‘ngangyas’* exhibit imagery or text associated with cannabis or cannabis use. It is not a question for the Rastafarian Community only, it is a national question that cuts across the entire spectrum of our society. 2. This is not to excuse cannabis use or to argue that it should be legalized merely because ‘the war is lost’ as it were. Rather, it is to ask whether we need to have a national social conversation, outside of courts and legislative houses, on what do we now do with this phenomenon in light of what it has become in our society. 3. That conversation could, perhaps, even extend to whether the expenditure of our nation’s very scarce law enforcement and prosecutorial resources on small amounts possession or personal use is appropriate; given that those resources are the same ones we deploy to address sexual offences, robberies with violence, assaults, and other grave offences. 4. Ultimately, our nation can no longer address the issue as the proverbial ostrich does, by burying our collective heads in the sand. We ought to have a full and frank conversation on cannabis and which direction we should take. The status quo appears untenable. 5. Returning now to the four corners of the matter that was squarely before the Court; it is the conclusion of this Court that, for the reasons set out above, 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 Petitioners have also not exhausted the available legal and administrative mechanisms before invoking the constitutional jurisdiction of this Court. The evidence on the centrality of cannabis to the Rastafari faith was also inconsistent and does not demonstrate that its use is an essential element of the religion. The limitation of the Petitioners' rights, if any, is reasonable and justifiable under Article 24 of the Constitution, as the impugned provisions serve the legitimate and pressing purpose of ostensibly protecting public health and safety. 6. Accordingly, I make the following final orders: 7. The Amended Petition dated 24th May 2021 is hereby dismissed in its entirety; AND 8. Each party shall bear their own costs. Orders accordingly. File Closed Accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the 1st and 2nd Petitioners – Mr. Shadrack Wambui, Mr. Jeff Kangethe, and Mr. Danstan Omari 3rd Petitioner – Mr. Munayi Opondo Isaac Counsel for the 1st Respondent – Mr. Marwa Counsel for the 2nd Respondent – Mr. Marwa Counsel for the Interested Party – Ms. Kidakwa Court Assistants – Mr. Martin and Mr. Austin