In a long-awaited ruling, Kenya's High Court has rejected a bid by Rastafarians to be allowed to smoke cannabis as part of their religious worship. But lawyers say the fight continues and the case has opened up debate on the country's drug laws and what constitutes religious freedom.
Members of the Rastafari Society of Kenya have been pushing Kenyan courts for nearly six years to let them use cannabis (bhang) as part of their religious meditation.
In a petition launched in 2021 they argued that Kenya's ban on cannabis use infringed on their rights to freedom of religion and belief, guaranteed under the country's constitution.
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They did not advocate for the drug to be legalised, but requested a derogation for religious purposes in private homes and designated places of worship, arguing that cannabis is not a recreational drug but a sacred sacrament used to aid meditation and spiritual reflection.
"It's a little like Communion in the Catholic faith," said lawyer Duncan Okatch during the hearing. "If other religions are allowed to practise their faith as they see fit and those practices are respected, then Rastafarians should be respected too."
However, in a landmark judgment on Wednesday, Justice Bahati Mwamuye said the community had failed to show cannabis was a necessary part of their practice, meaning they could not bypass Kenya's drug laws.
Under the Narcotic Drugs and Psychotropic Substances (Control) Act, possession of cannabis is a criminal offence, punishable by up to 10 years in prison and a large fine.
Judge Bahati said the petition was "dismissed in its entirety".
Essential or preferred use
Danstan Omari, one of the community's legal team, said they would be appealing the verdict "by Friday at the latest".
He claimed the judge had misunderstood the case by suggesting the Rastafarians should have applied for a licence under the Act, whereas their petition related to discrimination and human rights, not administration.
"The judge says that [our bid] was premature, that we should have gone through the administrative process and seek a permit. We don't believe that. And that's why we shall be moving to the Court of Appeal," Omari told RFI's Christina Okello shortly after the verdict.
"We will ask for a panel of five or seven judges, rather than the single judge who ruled on Wednesday, to look at the case afresh."
In his ruling, the judge said that while "all the witnesses had agreed that cannabis is used as a sacrament, they could not agree on whether its use is essential or merely preferred".
But Omari says the judge had failed to recognise the difficulties witnesses face in testifying given they are often "harassed and intimiated", including by the police.
"There was no way those people could voluntarily testify," he insisted.
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'Not a Kenyan issue'
The Jah Rastafari faith and culture originated in Ethiopia in 1930, centered around the former emperor Haile Selassie. It developed in Jamaica and has now become a global movement.
Cannabis use among Rastafarians is authorised in Jamaica, Antigua and Barbuda, and culturally tolerated in some parts of Ethiopia. Omari maintains it is indeed an integral, rather than "preferred", element of Rastafarian religious practice.
"It's not a Kenyan issue. Is cannabis central to that religion worldwide? Yes. Is Kenya practising a different type of Jah? No," he said.
"The standard of Jah is a similar standard to the Catholic Church - the symbolism, the rituals, the liturgy is the same worldwide. Therefore you cannot distinguish a Kenyan Jah from the global Jah. The judge failed to appreciate that."
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'Status quo appears untenable'
The Rastafarians built their case on Kenya's 2010 constitution, which protects freedom of religion and bans discrimination based on belief.
But government lawyers argued that cannabis remains an illegal narcotic posing risks to public health and that Kenya must uphold its international commitments on drug control.
Kenya's National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA), evoked similar reasons in opposing the request for exemption.
Despite ruling against the Rastafarians, the judge said the widespread recreational use of cannabis in Kenya suggested the current law was too harsh.
"It is beyond dispute that use of cannabis in this country has become ubiquitous and has arguably been so for many decades," he said, stating that "the status quo appears untenable".
Kenya should therefore have "a full and frank conversation on cannabis and which direction we should take", he said.
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Omari views this as a positive side to the ruling
"The fact that the judiciary, the apex decision-making organ of the Republic of Kenya, has said that there needs to be a national discussion, that the relevant arms of government now needs to start that discussion, is a big win for this movement."
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Wider constitutional question
Kenya effectively recognised the Rastafari movement in 2019, when a court ruled that a school had violated a pupil's religious rights by expelling her over her dreadlocks.
Dreadlocks - the mark of all Rastafari faithful - were also worn by many Mau Mau fighters, who fought for Kenyan independence against British colonial rule in the 1950s and 1960s.
But anthropologist Yvan Droz says the authorities have become increasingly cautious since the 2023 Shakahola cult tragedy, in which hundreds of followers died after being encouraged to starve themselves.
"There is considerable religious freedom in Kenya, with movements that can appear quite exotic," he told RFI.
"But the authorities are now struggling to determine what constitutes a religion and what constitutes a sect, with all the abuses that can entail."
