Court Rules on Cannabis Use for Religious Reasons

The High Court has dismissed a petition seeking a religious exemption to allow the use, possession and cultivation of cannabis for worship.

In a judgment delivered on Wednesday, July 15, Justice Bahati Mwamuye dismissed the amended petition filed by the Rastafari Society of Kenya and two others, who had challenged provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act that criminalize cannabis. 

The petitioners argued that cannabis is a sacred sacrament central to the practice of their faith and sought an exemption for its use in private worship and designated places of worship.

The court, however, held that the petition was premature because the applicants had not first pursued the licensing and exemption procedures provided under the law before seeking constitutional intervention.

The judge found that the petitioners had not demonstrated they had formally applied for a licence or exemption under the Act, nor shown that the available statutory mechanisms were unavailable or inadequate.

"The Petitioners 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," the ruling read.

The court also acknowledged that Rastafari is a religion deserving constitutional protection but concluded that the evidence presented did not establish that cannabis use is an essential requirement of the faith.

According to the judgment, witnesses called by the petitioners gave inconsistent testimony on whether cannabis is indispensable to Rastafari worship, with some admitting that adherents can practice the religion without using the substance.

The judge ruled that while freedom of religion is protected under the Constitution, it does not automatically exempt believers from complying with laws of general application enacted to protect public health and safety.

The court further found that the Narcotic Drugs and Psychotropic Substances (Control) Act applies equally to all persons regardless of religion and that the petitioners had not demonstrated discrimination or a violation of their constitutional rights.

Justice Mwamuye also agreed with the State’s argument that restrictions on cannabis are justified under Article 24 of the Constitution, citing public health concerns, the risk of dependency, mental health effects and the potential diversion of cannabis into illicit markets.

"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 ruling added.

Although dismissing the petition, the judge observed that cannabis use has become widespread in Kenya and suggested the country should hold an open national conversation on the issue outside the courtroom.

"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," the ruling further read.

The court ultimately dismissed the amended petition in its entirety, with each party ordered to bear its own legal costs.

Elsewhere, this comes barely a day after the High Court sentenced Kenya Defence Forces (KDF) soldier Peter Mwaura Mugure to life imprisonment after finding him guilty of murdering his wife and their two children.

In delivering the sentence on Tuesday, July 14, the trial judge described the killings as barbaric and ruled that the circumstances of the crime warranted the maximum custodial sentence.

The sentence came after the Office of the Director of Public Prosecutions (ODPP) secured Mugure's conviction on three counts of murder. 

The High Court in Nyeri found that the prosecution had proved its case beyond reasonable doubt, concluding a trial that stemmed from the killings committed in October 2019.