The High Court has dismissed a petition seeking to exempt members of the Rastafari faith from prosecution for possessing, cultivating and using cannabis during private worship, but called for a national conversation on Kenya’s approach to the drug.

Justice Bahati Mwamuye ruled that the Rastafari Society of Kenya and its co-petitioners had failed to exhaust existing licensing and administrative mechanisms before filing the constitutional case.

The judge also found that the petitioners had not proved that cannabis use was an essential and mandatory component of the Rastafari faith or that Kenya’s drug control laws violated their constitutional rights.

“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,” Justice Mwamuye said.

The petition was filed by the Rastafari Society of Kenya, its spokesperson Mwendwa Wambua, also known as Ras Prophet, and Munayi Opondo Isaac against the Attorney General and the Kenya Law Reform Commission.

The National Authority for the Campaign Against Alcohol and Drug Abuse, NACADA, participated in the case as an interested party.

The petitioners challenged provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act that criminalize cannabis possession, cultivation and consumption.

They argued that cannabis, which they described as the “holy herb”, is used during private meditation and communal “reasoning” sessions to promote spiritual enlightenment and a closer connection with Jah, the Creator.

They maintained that they were not seeking the wholesale legalization of cannabis, but a limited exemption allowing adult Rastafari adherents to use it in private homes and designated places of worship.

However, the court found that the petitioners had not formally pursued licences or exemptions provided for under the Act.

Justice Mwamuye said the licensing framework could consider applications on a case-by-case basis and impose safeguards to prevent abuse, illegal distribution or false claims of religious membership.

“The Petitioners have not demonstrated that they have applied for a license or exemption under the Act, nor have they shown that such an application would be futile,” he said.

The court also recognized Rastafari as a religion protected under Article 32 of the Constitution, but said testimony from the petitioners’ witnesses was inconsistent on whether cannabis was indispensable to its practice.

During cross-examination, some witnesses acknowledged that Rastafari worship and communal reasoning could take place without cannabis and that some adherents did not consume it.

The judge said this weakened the claim that the law forced Rastafari believers to choose between obeying the law and practising their faith.

The Attorney General had opposed the petition, arguing that the drug law applies equally to all Kenyans and serves the legitimate purpose of protecting public health and safety.

NACADA warned that creating a religious exemption could open loopholes for trafficking and diversion of cannabis into illegal markets.

The agency cited its 2022 national survey, which indicated that more than 500,000 people were using cannabis, with nearly half of current users showing signs of dependency or problematic consumption.

Justice Mwamuye held that any limitation of the petitioners’ rights was reasonable and justifiable under Article 24 of the Constitution, given the public health, safety and enforcement concerns associated with cannabis.

Despite rejecting the petition, the judge said Kenya could no longer avoid a broader discussion on cannabis use, noting that it had become widespread and increasingly visible in popular culture and commercial products.

“We ought to have a full and frank conversation on cannabis and which direction we should take. The status quo appears untenable,” he said.

The court questioned whether scarce police and prosecutorial resources should continue being spent on cases involving possession of small quantities for personal use instead of serious offences such as robbery, assault and sexual violence.

The petition was dismissed in its entirety, with each party ordered to bear its own legal costs.

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