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.”
2. 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.
3. The Amended Petition dated 24 th May 2021, which this Judgment determines, resonates with that broad theme. The Petitioners are the Rastafari Society of Kenya (the 1 st Petitioner), a registered umbrella body bringing together adherents of the Rastafari faith, Mwendwa Wambua alias Ras Prophet (the 2 nd Petitioner), its spokesperson and Munayi Opondo Isaac (MOI) (the 3 rd 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.
4. 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
5. 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.
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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
12. 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 2 nd 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 3 rd 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 1 ST RESPONDENT'S CASE
22. 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.
23. 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.
24. 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.
25. The 1 st 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.
26. 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 2 ND RESPONDENT'S CASE
27. The Kenya Law Reform Commission (KLRC) was enjoined as the 2 nd Respondent. The record indicates that the KLRC did not file any documents in response to the Petition. In his submissions, the 1 st Respondent's counsel, noted that the 2 nd 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 1 st Respondent, and the Interested Party.
THE INTERESTED PARTY'S (NACADA'S) CASE
28. 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.
29. 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.
30. 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.
31. 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
32. From the pleadings and submissions, three issues arise for determination:
i. Whether the Petitioners have exhausted the available legal mechanisms before invoking the constitutional jurisdiction of this Court.
ii. 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.
iii. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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 1 st 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.
38. 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.
39. 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.
40. 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).”
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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 prematu
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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.”
2. 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.
3. The Amended Petition dated 24 th May 2021, which this Judgment determines, resonates with that broad theme. The Petitioners are the Rastafari Society of Kenya (the 1 st Petitioner), a registered umbrella body bringing together adherents of the Rastafari faith, Mwendwa Wambua alias Ras Prophet (the 2 nd Petitioner), its spokesperson and Munayi Opondo Isaac (MOI) (the 3 rd 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.
4. 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
5. 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.
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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
12. 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 2 nd 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 3 rd 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 1 ST RESPONDENT'S CASE
22. 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.
23. 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.
24. 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.
25. The 1 st 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.
26. 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 2 ND RESPONDENT'S CASE
27. The Kenya Law Reform Commission (KLRC) was enjoined as the 2 nd Respondent. The record indicates that the KLRC did not file any documents in response to the Petition. In his submissions, the 1 st Respondent's counsel, noted that the 2 nd 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 1 st Respondent, and the Interested Party.
THE INTERESTED PARTY'S (NACADA'S) CASE
28. 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.
29. 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.
30. 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.
31. 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
32. From the pleadings and submissions, three issues arise for determination:
i. Whether the Petitioners have exhausted the available legal mechanisms before invoking the constitutional jurisdiction of this Court.
ii. 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.
iii. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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 1 st 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.
38. 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.
39. 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.
40. 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).”
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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 prematu
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