NAIROBI, Kenya – The High Court has scheduled May 28, 2026, for judgment in a constitutional petition challenging the criminalisation of bhang in Kenya.
The case, filed by the Rastafari Society of Kenya, contests several provisions of the Narcotic Drugs and Psychotropic Substances Control Act, which outlaw the possession, use, and cultivation of cannabis.
At the core of the petition is the argument that Parliament exceeded constitutional limits by enacting what the group describes as a blanket ban that infringes on the rights to privacy and freedom of religion.
During proceedings before High Court judge Bahati Mwamuye, lawyers representing the Rastafarians argued that the law is overly broad because it does not distinguish between private and public cannabis use.
“The sections, however well-intended they were at the point of legislation, are overboard and have the effect of violating petitioners’ rights,” lawyer Shadrack Wambui submitted.
Justice Mwamuye sought clarification on whether the High Court has the authority to grant the orders sought or whether the issue falls solely under Parliament’s legislative mandate.
The judge particularly questioned whether a religious exemption could legally be introduced into Section 3 of the Act.
State Counsel Christopher Marwa, representing the respondents, cautioned the court against overstepping into Parliament’s law-making role, arguing that legislation derives legitimacy through public participation and democratic processes.
He warned against judicial overreach that could undermine the separation of powers.
“No jurisdiction permits unrestricted use of an uncontrolled substance. The Act allows use upon obtaining a licence, so you cannot say it is completely banned in the country,” Marwa argued.
He further maintained that any reconsideration of cannabis regulation should be addressed through Parliament, including through public participation and citizen submissions.
Lawyers representing NACADA also defended the legislative process, saying Parliament conducted public participation before passing the law.
However, the Rastafari Society insisted that the court has a constitutional obligation to intervene where laws violate fundamental rights, especially those affecting marginalised groups.
Wambui argued that courts are not required to defer to Parliament where constitutional protections are allegedly inadequately safeguarded.
He told the court that where there is legislative inaction, judges can issue appropriate remedies to ensure constitutional rights are protected.
The petitioners urged the court not only to declare the contested provisions unconstitutional, but also to issue structural orders directing Parliament and the Attorney General to establish a framework recognising the religious use of cannabis.
According to Wambui, the petition is not seeking the broad legalisation of cannabis, but rather reasonable accommodation for private religious use.
He argued that public interest concerns are already addressed within the current legal framework and stressed that Kenya’s Constitution protects freedom of belief and the privacy of adult conduct.
Lawyer Danstan Omari also told the court that judges have a duty to enforce the Bill of Rights, including protections for religious freedom under Article 32.
“The parliament created the law reform commission, which can review or amend laws,” he added.
The case now places Parliament at the centre of a broader constitutional debate over whether courts can compel or guide legislative reforms to accommodate religious protections within Kenya’s narcotics laws.
