Lawmakers call for rethink of bhang laws amid rising use and traffiking

Lawmakers in Kenya are increasingly advocating for a comprehensive review and potential overhaul of the country's stringent cannabis (bhang) laws. This call for reform is driven by the persistent rise in illicit use and trafficking, as highlighted by reports from the UNODC, which indicate public transport as a primary vector for drug movement. The current punitive legal framework, primarily the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, is being questioned for its effectiveness and its alignment with global trends towards regulated cannabis use for medicinal and economic purposes. The ongoing debate in Parliament, coupled with a significant constitutional challenge by the Rastafarian community, signals a potential shift in Kenya's approach to drug policy, with far-reaching implications for legal practitioners and society at large.

Kenya's approach to cannabis, locally known as bhang, is at a critical juncture, with a growing chorus of lawmakers and civil society actors calling for a fundamental rethink of existing prohibitionist laws. The recent debate in Parliament underscores a palpable tension between the long-standing punitive legal framework and the pragmatic realities of rising illicit use and trafficking. The United Nations Office on Drugs and Crime (UNODC) World Drug Report has consistently identified public buses, trains, and personal vehicles as primary vectors for moving cannabis and other illicit substances inland from porous coastal ports or borders, highlighting the scale of the challenge faced by law enforcement.

This article delves into the legal landscape surrounding cannabis in Kenya, examining the statutory provisions that criminalize its possession, cultivation, and trafficking, and the severe penalties associated with these offences. It further explores the burgeoning calls for reform, the arguments underpinning these demands, and the significant judicial and legislative developments that could reshape Kenya's drug policy. For legal professionals, understanding these evolving dynamics is crucial for advising clients, engaging in policy advocacy, and anticipating future shifts in criminal justice and public health approaches to cannabis.

The central thesis of this article is that Kenya's current cannabis laws, rooted in a prohibitionist paradigm, are increasingly being challenged on grounds of efficacy, human rights, and economic opportunity, necessitating a re-evaluation that balances public health and safety concerns with the potential benefits of a regulated framework.

The legal framework governing narcotic drugs and psychotropic substances in Kenya is primarily encapsulated in the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994 (the Act). This Act replaced the earlier 1933 Dangerous Drugs Act, solidifying a prohibitionist stance against cannabis, among other substances. The Act broadly defines "cannabis" to include the flowering or fruiting tops of the cannabis plant, cannabis oil, and cannabis resin, criminalizing their possession, trafficking, and cultivation.

The penalties prescribed by the Act are severe. For mere possession of cannabis, an offender may face imprisonment for up to ten years, particularly if the court determines it was for personal consumption. However, if the quantity suggests an intent to supply or traffic, the penalties escalate significantly, including imprisonment for twenty years to life, or a fine of not less than one million shillings or three times the market value of the narcotic drug, whichever is greater, or both. Cultivation of cannabis plants is also a serious offence, punishable by a fine of not less than two hundred and fifty thousand shillings or three times the market value of the prohibited plant, or imprisonment for a term not exceeding twenty years, or both. Furthermore, land used for cultivation of prohibited plants may be forfeited to the government. These stringent measures reflect a historical commitment to combating drug abuse through punitive deterrence, a strategy that is now under intense scrutiny.

Despite the severe penalties enshrined in the Narcotic Drugs and Psychotropic Substances (Control) Act, the illicit use and trafficking of bhang continue to be a significant challenge in Kenya. The UNODC has identified Kenya as a major producer of cannabis in East Africa, with cultivation reported in areas such as Mount Kenya and around Lake Victoria, and significant amounts smuggled out of the country. This persistent problem has led to a growing recognition among lawmakers that the current prohibitionist approach may be ineffective and unsustainable.

Recent parliamentary debates have seen members of parliament, such as Ugenya MP David Ouma, openly questioning Kenya's reliance on a "colonial approach" to cannabis laws. Ouma, sharing a personal account of using bhang for pain relief, highlighted the substance's complex role and advocated for a shift towards a more pragmatic, regulated framework, drawing parallels with countries like Mexico, the United States, and South Africa that have embraced controlled use. Nairobi Woman Representative Esther Passaris and Dagoretti MP Beatrice Elachi have also pointed to the easy accessibility of bhang, even through online platforms, and its informal use for pain management in some households, urging a national conversation on the matter.

Legislative efforts to reform cannabis laws are not new. In 2018, the late Member of Parliament Kenneth Okoth tabled a draft Marijuana Control Bill, which sought to decriminalize cannabis possession and use, clear criminal records for past convictions, and establish a regulated commercial sales program with progressive taxation to boost economic independence and job creation. More recently, politician George Wajackoyah's 2027 presidential platform included a proposal for large-scale industrial hemp cultivation to address national debt, highlighting the potential economic benefits. These proposals underscore a growing recognition of cannabis's potential medicinal and economic value, a perspective increasingly adopted by other African nations such as Rwanda and Uganda, which are exploring medicinal cannabis cultivation for export.

However, the path to reform is not without opposition. Deputy Majority Leader Owen Baya has cautioned against a "defeatist" approach, arguing that the prevalence of bhang use should not automatically lead to its legalization, citing concerns about increased social harm. This sentiment is echoed by the state in ongoing legal battles. A significant development is the petition filed by the Rastafarian Society of Kenya before the High Court, challenging the criminalization of marijuana on grounds that it violates constitutional protections on freedom of religion. The High Court is expected to deliver its judgment on this landmark case in May 2026, which could have profound implications for the future of cannabis legislation in Kenya. The government, through the Attorney General, has argued that controlling cannabis use does not amount to discrimination and that public health needs must be balanced against sectarian interests.

Paradoxically, while calls for decriminalization and legalization gain traction, the Narcotic Drugs and Psychotropic Substances (Control) Act was amended in 2022 to introduce stiffer penalties for offences. The Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Bill, 2020, also proposed enhanced fines and imprisonment terms, particularly for manufacturing, possessing, or transporting precursor chemicals, and for law enforcement officers aiding drug traffickers. This dual trajectory of increasing penalties while simultaneously debating decriminalization highlights the complex and often contradictory policy landscape in Kenya.

The ongoing discourse surrounding bhang laws in Kenya signals a pivotal moment for the country's drug policy. The confluence of rising illicit use and trafficking, compelling arguments for medicinal and economic benefits, and a significant constitutional challenge by the Rastafarian community is exerting considerable pressure on the existing prohibitionist framework. While some lawmakers advocate for a pragmatic, regulated approach akin to global trends, others remain wary of the potential societal costs of liberalization.

For legal practitioners, this evolving landscape presents both challenges and opportunities. It necessitates a deep understanding of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, its recent amendments, and the constitutional arguments being advanced in court. Practitioners must closely monitor the High Court's impending judgment on the Rastafarian petition, as it could set a crucial precedent for religious freedom and drug policy. Furthermore, staying abreast of legislative proposals and parliamentary debates will be essential for advising clients on potential shifts in enforcement, compliance, and even new commercial opportunities should a regulated cannabis market emerge. The call for a rethink is not merely a political debate; it is a fundamental re-evaluation of legal principles, societal values, and economic imperatives that will undoubtedly shape Kenya's legal future.