Holy bread? Judge draws religious line in bhang case

High Court judge Bahati Mwamuye/JUDICIARY

The High Court has drawn a notable religious analogy in a case filed by the Rastafari Society of Kenya challenging the country’s cannabis laws.

Amid the society’s argument that the use of bhang is part of their faith and should be decriminalised, and the state opposing the petition, High Court judge Bahati Mwamuye questioned the limits of legislative power during Friday’s hearing.

The court raised a hypothetical question to the state, asking whether Parliament could, in principle, ban unleavened bread, in probing the scope of criminal law, religious practice and constitutional limits on State regulation.

The judge’s unleavened bread analogy appeared to draw from Christianity, where unleavened bread holds religious significance in certain traditions and rituals, as he tested whether Parliament’s general law-making power could extend to restricting practices tied to faith and worship.

“If Parliament were to ban unleavened bread, would the State’s justification that the law is generally applicable still hold?” the judge asked.

The analogy was used to test the boundaries of legislative authority and whether the general application of a law is, by itself, sufficient to justify restrictions on constitutionally protected religious practices and beliefs.

In response, state counsel Christopher Marwa maintained that laws must derive legitimacy from public participation and democratic processes.

He further argued that Parliament is empowered to regulate conduct deemed harmful to public interest.

“It must have legitimacy from the people. A Bill should be subjected to members of the public to give them an opportunity, and also to be educated on the same, and agree whether it is bad for the public or not,” he said.

The state further argued that the cannabis law is neutral and applies equally to all citizens, dismissing claims by the petitioners that they are being discriminated against.

Marwa said the law is designed to address issues of trafficking, abuse and public health concerns, rather than target any specific group.

However, the petitioners countered that such limitations must still meet constitutional thresholds and cannot amount to blanket prohibitions that ignore personal liberty, religious belief and private conduct.

They argued that the court has a role in checking legislative excess, particularly where laws are alleged to infringe fundamental rights.

The case also touched on broader issues of marginalisation, with the Rastafari Society describing its members as a politically powerless group often excluded from mainstream social life.

The society, through their lawyer Shadrack Wambui, urged the court to recognise their religious identity and protect their practices from what they described as blanket criminalisation.

The matter arises from a petition challenging sections 3, 5 and 6 of the Narcotic Drugs and Psychotropic Substances Control Act, which criminalise the possession, use and cultivation of cannabis.

Rastafarians are seeking to have the provisions declared unconstitutional to the extent that they prohibit private cannabis use, particularly where it is linked to religious practice and personal belief.