A new frontier: A case for legalizing marijuana in Kenya

March 13, 2021 - Reading Time: 13 minutes - By Abigael Ndanu

The evolution of African policy and interests in legal cannabis production continues to gain traction.

In October 2020, the Rwandan Cabinet approved regulatory guidelines for the production and processing of medicinal cannabis for export. Including Rwanda there are now ten countries in the region clearly positioning themselves to benefit from this nascent (legal) industry. Among them, Eswatini, Ghana, Lesotho, Malawi, Morocco, South Africa, Zambia, Zimbabwe and now Rwanda. Six of the ten are in the Southern African Development Community (SADC), which has already become an established site for textiles and auto industry Foreign Direct Investment (FDI) targeting northern hemisphere demand.

Kenya has however chosen au contraire, this despite the rescheduling of cannabis by the WHO towards the end of 2020 which has removed it from the strictest Schedule 4 of the 1961 Single Convention on Narcotic Drugs. This is premised on the recommendations made by the WHO on 24th January, 2019 to the United Nations that fundamental changes were needed to the way cannabis and its derivative products are classified under the Single Convention. Most notably, the WHO had recommended:

  • Deleting Cannabis and Cannabis Resin from Schedule IV of the Single Convention
  • Adding Tetrahydrocannabinol (THC) to Schedule I of the Single Convention
  • Removing Cannabidiol (CBD) entirely from the list of scheduled substances under the International Drug Control Conventions

It however remains listed in Schedule 1 which means that member states’ access to cannabis for medical and scientific purposes is now easier.

NACADA Chief Executive Officer Victor Okioma stated that the WHO’S move was not binding to member states like Kenya. He further stated that Kenya did not support the move but instead, “advocated for the retention of the cannabis plant and cannabis resin in both Schedule 1 and 4 of the 1961 Convention.”

This sentiment was based on his belief that cannabis remains to be a harmful drug requiring stricter regulation.

Though the move eases Member states access to Cannabis for medical and scientific purposes, it does not in any way legalize the use of cannabis for recreational purposes,” the CEO said in a statement.

The decision was based on the argument that having Cannabis plants and cannabis resin in both Schedule 1 and 4 of the 1961 Convention did not limit states’ access to the substance for medical and scientific purposes,” he further stated.

NACADA CEO’s sentiments are an indication that Kenya may move forward to adopt more stringent measures in the proposed amendments.

Indeed, Kenya is seeking to amend its existing legislation on narcotics and psychotropic substances by introducing harsher sentences. Specifically, the new development, if adopted, will see drug traffickers fined up to Kshs. 50 million. However, the fines/ penalties on drug traffickers shall be commensurate with quantities nabbed. For instance, people found in possession of more than 101 gm of the narcotics will receive the harshest penalties (Kshs. 50 million and life imprisonment), while those in possession of 51-100gm will be risking fines of not less than Kshs. 30million and jail terms of not less than 20 years. Further, according to the Narcotics, Drugs and psychotropic Substances (Control) Amendment Bill, 2020, those found in possession of between 0.1-50gm will be subjected to fines of not less than Kshs. 20 million, jail terms of not less than 15 years or both.

The current law proposes a fine of Sh1 million, or three times the market value of the drug or whichever is greater.

Under the proposed law, police officers, investigators and prevention officers who assist drug traffickers carry out their trade will be liable to fines of not less than Kshs. 20million, imprisonment of terms of not less than 20 years or both upon conviction.

Whereas it cannot be denied that the drug trafficking trade has been a significant bane for the Kenyan Government and the country’s population, blanket prohibition on cultivation of cannabis is outdated. This is based on the expansive scientific literature affirming the therapeutic value of medicinal cannabis, and the accelerating rate at which countries around the world are legalizing its medicinal and industrial use and establishing regulated markets.

Scientific Affirmation for the Therapeutic Uses of Cannabis:

For millennia, societies globally have used cannabis in traditional medicine. In Kenya, use has been widespread among indigenous communities., with peoples such as the Luo and the Agikuyu using it for various medicinal and even divine purposes. In Kenya, the plant was historically used to treat tetanus, hydrophobia, delirium tremens, infantile convulsions, neuralgia and other nervous disorders, cholera, menorrhagia, rheumatism, hay fever, asthma, skin diseases and protracted labor during childbirth.

More recently, scientific studies have affirmed the plant’s medicinal uses. Studies conducted in Europe, Israel, and North America have demonstrated that cannabis can be effectively used to treat, or manage the symptoms associated with a wide range of medical conditions, including chronic pain, cancer, nausea, epilepsy, loss of appetite, anxiety, spasticity, colitis (irritable bowel syndrome), ALS, glaucoma, and inflammation, to name a few.

In 2017, the U.S. National Academies of Sciences, Engineering and Medicine issued the seminal report The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research. The report was based on a multi-year effort to review and qualify all the peer-review research produced on the therapeutic effectiveness of cannabis. The Academies reviewed nearly 20,000 peer-reviewed papers from around the world and classified them based on the rigor and robustness of the research, then grouped them based on the demonstrated efficacy of each medical condition being treated.  Notable conclusion from the report include:

  1. There is conclusive or substantial evidence that cannabis or cannabinoids are effective:
  2. For the treatment for chronic pain in adults
  3. Antiemetics in the treatment of chemotherapy-induced nausea and vomiting
  4. For improving patient-reported multiple sclerosis spasticity symptoms

There is moderate evidence that cannabis or cannabinoids are effective for:

  1. Improving short-term sleep outcomes in individuals with sleep disturbance associated with obstructive sleep apnea syndrome, fibromyalgia, chronic pain, and multiple sclerosis

There is limited evidence, (i.e., despite positive indications, the research was insufficiently substantive to draw a definitive conclusion), that cannabis or cannabinoids are effective for:

  1. Increasing appetite and decreasing weight loss associated with HIV/AIDS
  2. Improving clinician-measured multiple sclerosis spasticity symptoms
  3. Improving symptoms of Tourette syndrome
  4. Improving anxiety symptoms, as assessed by a public speaking test, in individuals with social anxiety disorders
  5. Improving symptoms of posttraumatic stress disorder
  6. For many other conditions, including Traumatic Brain Injury, Glaucoma, and Dementia, the Academies concluded that there was insufficient research to draw a conclusion of efficacy, and further studies would be needed.

The Academies affirmed that there is significant need for further research to build a more comprehensive view into all the conditions for which cannabis might be used. However, the report affirmed that the generally low risk profile of medical cannabis, and the efficacy in improving patient wellness outcomes for a diversity of conditions affirms the value of liberalized access to cannabis for scientific research and medical use.

A Case for Medical Cannabis as a Cash Crop in Kenya:

The illegality of cannabis under global and national laws has constrained the type and amount of research being conducted on cannabis. However, in many legal jurisdictions, the affirmative feedback from patients who use medical cannabis has been strong enough to encourage regulators and healthcare practitioners to broadly expand the number of conditions for which cannabis is being prescribed.

Indeed, in a 2018 study conducted by New Frontier Data, a cannabis market research firm, 94% of American patients who use medical cannabis reported that their condition improved, including 66% who reported that their condition improved significantly. Notably, nearly three-quarters (73%) of patients reported that they have used medical cannabis as a substitute or alternative to other medications they use.

The strong outcomes reported by patients have led to medical cannabis being prescribed for nearly 70 distinct medical conditions, and in some jurisdictions, physicians have been granted the latitude to recommend cannabis for any medical condition which they believe might be improved by its use.

In the context of Kenya specifically, there are several conditions for which medical cannabis could play a valuable role in improving population health outcomes and lowering the cost burden of both public and private health care. Some conditions of note include:

(a) Cancer: Cancer is now the third leading cause of death in Kenya, and due to limited access to comprehensive treatment options, 79% of cancer victims do not survive.  Studies have shown that Cannabis not only helps cancer patients with effective pain management, but also slows down the growth of cancer cells. Further, studies done on a derivative of Cannabis has shown that the substance can in conjunction with other substances kill cancer cells while having no effect on healthy cells in the body. For the growing number of Kenyan’s afflicted with cancer, cannabis may prove a potent option to alleviate their symptoms, and, for some, slow the progression of the disease, resulting in improved patient outcomes post-diagnoses, and higher quality of life for those afflicted.

(b) HIV/AIDS: Kenya continues to have one the highest prevalence rates of HIV in the world, with 4.5% of the population aged 15-45 living with the diseases. While significant progress has been made in reducing new infection rates, a significant proportion of the country’s productive population continues to be afflicted each year. Cannabis reduces nerve pain and anxiety for HIV/AIDS patients. It also stimulates appetite to help them maintain a healthy body weight, reduces the anxiety and stress that often accompanies the diagnosis, and improves sleep outcomes.

(c) Epilepsy: Cannabis disrupts the electrical impulses in the brain that cause seizures. While the prevalence of epilepsy is low in Kenya, it can be an acutely life-impacting condition. Cannabis keeps the neurons from being over excited and protects them from damage. Epilepsy patients find a significant reduction in the length and frequency of seizures with cannabis. It allows them to wean off prescription medicines and live a more normal life. Indeed, the first cannabis-derived drug every approved by the U.S. Food and Drug Administration for prescription was Epidiolex, a drug aimed at treating Lennox-Gastaut syndrome (LGS) and Dravet syndrome (DS), two debilitating forms of childhood epilepsy.

(d) Alzheimer’s: Alzheimer’s is the result of a plaque that builds up in the brain and disrupts the communication system. The memory loss and other cognitive deficiencies are related to parts of the brain which are no longer communicating with other parts. Tetrahydrocannabinol (THC) which is a chemical of the plant reduces the level of certain proteins in the brain, so the plaque cannot form. As life expectancy in Kenya has grown, so too have the number of older Kenyans now living with Alzheimer’s diseases and similar age-related conditions. Cannabis could prove to be a powerful addition to the pharmacopeia used to care for the country’s growing aging population.

(e) Conditions associated with aging: Cannabis is especially effective in alleviating conditions prevailing in the aging population. From easing the intraocular pressure caused by Glaucoma, to relieving joint pain from Arthritis, and reducing sleep disruptions, enabling older adults to fall asleep faster and stay asleep longer – which is key to maintain mental health – the plant could be a valuable resource in improving care and quality of life for elderly Kenyans.

(f) Post-traumatic stress disorder (PTSD): While managing mental health is relatively new in Kenya, the practice is quickly gaining traction. For those who have suffered traumatic experiences, such as violence or abuse, cannabis can help as part of an integrated program to improve their mental health and recovery. The THC in marijuana repairs memory which makes it a good therapeutic tool for combating PTSD. Medical marijuana also reduces stress and nightmares in those suffering from PTSD.

These are just some of the conditions where cannabis could serve as an effective complement or substitute to costly pharmaceutical options, which are often out of reach for impoverished Kenyans. And while cannabis may not always provide an identical rate of relief as single-molecule pharmaceutical drugs, the opportunity to offer Kenyan patients a locally produced, low-cost alternative to expensive pharmaceuticals should make the legalization of cannabis an urgent national priority.

A Case for Legalization of Industrial Hemp in Kenya:

Industrial Hemp includes a class of cannabis cultivars which have two distinct attributes relative to the cannabis cultivars used to produce medical cannabis:

  • Hemp plants produce very low THC. Regulations vary across markets, but generally most countries require hemp to have no more than 0.3% – 1% of THC
  • Hemp plants are produced primarily for their fibers and not for the flowering fruit tops used to produce cannabis flowers and extracts. As such, hemp plants tend to grow tall and can be planted at far higher densities than cannabis grown for medicinal use.

Hemp is thought to be one of the first plants that humans domesticated, with evidence of human use of hemp going back 10,000 years in Central Asia. Hemp seeds were widely used as a food source, the flower and leaves as medicine, and the stalks for textiles, rope, and paper until the early twentieth century when prohibitions on cannabis began to be effected, with no exemptions for hemp even though it is not psychoactive.

While some countries (China, Canada, and the Eastern European states in particular) continued to produce hemp at scale for seed and fiber, the global prohibition on cannabis constrained the size of the market, and the diversity of ways in which the plant was used.

However, convergent factors have stimulated new interest in harnessing the plant’s potential:

  • The growing urgency to address climate change is driving more industries to seek sustainable alternatives to fossil fuels, plastics, and environmentally destructive applied materials.
  • Rapidly shifting public attitudes toward cannabis, and better understanding of the difference between industrial hemp and psychoactive cannabis cultivars is leading to liberalization of hemp laws and greater interest in hemp-based products.
  • Globalization of agriculture and dramatic decline in demand for tobacco is leading farmers to seek new crops that can yield sustainable living wages.

Major industries across the world are increasingly investing in integrating hemp-based products:

  • BMW is using hemp-based plastics for the interior of its latest vehicles.
  • Coca Cola is exploring the use of hemp-based plastics to replace fossil fuel plastics in its packaging
  • Levi’s, the U.S. denim company, announced its first hemp-cotton blend jeans, with the company expected to release pure-hemp clothing as processing capacity increases.
  • Hemp Crete – a building material made from hemp, lime, and water – is being touted as a low cost highly renewable alternative to conventional constructional materials due to its excellent insulation properties.
  • Hemp seeds, which are highly nutritious due to their complement of omega fatty acids, vitamins, and minerals, are growing in popularity among health-conscious consumers in Europe and across North America.
  • Hemp based animal feeds, when added to livestock feed have been found in some studies to increase yields, lower disease prevalence, and improve
  • Researchers in Canada found that carbonized hemp can be used as a hyper-efficient super capacitor – presenting new potential for hemp-based computing hardware that can rival graphene, the leading super capacitor, but at a fraction of the cost and with none of the highly toxic chemicals required to produce graphene.
  • Hemp’s high tensile strength made valuable for rope and rigging in both construction and maritime applications present compelling potential in developing economies where demand for low cost industrial materials are in increasingly high demand.

While still nascent, the global hemp economy is growing quickly, propelled by increased production, advancements in processing capacity, and growing consumer demand. As Kenya works to diversify its commercial agriculture portfolio, the country has an opportunity to join the early leaders in an important emerging market.

Beyond the opportunity for hemp-based products, the plant itself has compelling potential to address environmental pollution. Hemp is widely used for phytoremediation due to the highly efficient way in which it extracts contaminants and toxins from the environment. The plant has been used to clean up superfund sites, eliminate toxic waste from extractive industries such as mining, and remove pesticides from over-sprayed farmland.

With environmental pollution becoming a growing concern in Kenya, hemp can serve as a valuable addition to the country’s portfolio of sustainability and environmental management solutions.

An Economic Case for Legalization of Cannabis in Kenya:

The wide diversity of medicinal and industrial applications for cannabis present a very strong economic case for cannabis legalization in Kenya:

  • Medical cannabis can reduce the cost of treatment for a range of endemic conditions in Kenya by reducing the use of, or fully displacing, the use of high cost imported pharmaceuticals, enabling more people to treat their conditions, and improving overall public health outcomes.
  • The use of medical cannabis in public health facilities will lower the national healthcare cost burden by reducing reliance on costlier pharmaceuticals. Specifically, the COVID-19 pandemic has placed unprecedented strain on healthcare systems, and medical cannabis can serve as one way to lower the future cost of care.
  • The growing demand for medical cannabis in Europe and Asia is opening new export opportunities for growers in developing nations who can produce cannabis at much lower costs than is possible in developed nations. Kenya is especially well positioned to not only grow cannabis but to develop value-added products that are exported in finished form to maximize the revenues earned from the sector.
  • With heightened international competition for cash crops like sugar and cotton, hemp presents a new crop that can supplement the income of those most impacted by falling wholesale prices.
  • With a growing portfolio of agricultural and industrial applications, industrial hemp presents fertile opportunities for innovation in areas especially well aligned with Kenya’s development priorities around sustainable development.
  • The applications for hemp in phytoremediation are especially timely as Kenya develops its extractive industries based on the recent expansion of the mining sector for oil, rare earths, and geothermal energy.
  • Investors are increasingly channeling capital to develop the cannabis industry. Since 2015 over $45 billion in capital transactions have been completed, according to Viridian Capital Advisors, a cannabis investment advisory firm. A well-regulated cannabis market in Kenya would position the country to capture a share of this growing pool of capital as the market grows.
  • The North American market for medical cannabis is estimated at $8.2 billion in 2020, growing to $13.5 billion by 2025 in the U.S. and Canada alone. In fact, the global market for medical cannabis is currently estimated at $150 billion (135 billion euros) and could reach $272 billion in 2028, according to Barclays Bank.  With the addition European, Asian, and Latin American markets in the coming years, global medical cannabis sales are estimated to grow to over $50 billion annually. The establishment of an efficient, low-cost production market in Kenya will position the country well to supply this growing market.

From reducing public and private healthcare costs, to creating new sustainable agricultural and industrial sectors, and attracting international investments, cannabis presents a compelling multi-sectoral opportunity to stimulate growth and development in Kenya’s economy.

The countries in Africa which have advanced substantive cannabis reforms include:

  1. Lesotho: (2017) The Kingdom of Lesotho was the first African country to permit the production of medical cannabis, and to date, the government has licensed six companies to produce, process and export cannabis to markets where it is legal. By 2020, half of the licensees had received significant investments or been fully acquired by leading Canadian cannabis companies.
  2. South Africa: (2018) Unlike other countries where cannabis reforms have been advanced legislatively, South Africa is the only country in Africa (and one of three in the world) where the courts have ruled in favor of the individual rights of adults to grow, possess and consume cannabis. The South African Constitutional Court’s finding that the Government’s blanket prohibition on personal cannabis possession and use infringed upon the human rights of South Africans was a landmark decision the advancement of cannabis legalization globally. The Court also gave the country’s parliament two years to establish a regulatory framework by which cannabis would be governed within the rights enshrined by the court. A vote on a cannabis regulatory structure is expected in late 2020.
  3. Democratic Republic of Congo: (2018) The DRC appears poised to be a disruptive player in the global market for low cost cannabis following the 2018 announcement by Instadose Pharma Company, a Canadian enterprise, which claimed to have been permitted to grow cannabis in the country, and was building a 100,000 acres cultivation operation. If true, the company would the world’s single largest legal cannabis farm, with potentially significant implications for the future wholesale prices given the projected scale of production.
  4. Eswatini (fmr. Swaziland) (2019): The land locked nation announced in 2019 that it would issue a 10-year exclusive license to one company to produce medical cannabis and industrial hemp. It is expected that additional licenses may be issued in the future, as the market opportunity for legal medical cannabis continues to grow.
  5. Zimbabwe: In 2019, Zimbabwe legalized medical cannabis and approved 37 producer licenses, and, separately, approved and began to issue licenses to produce industrial hemp. The government initially proposed acquiring an ownership stake in all international licensees, however reconsidered the proposal following extensive consultation with domestic and international industry stakeholders.
  6. Zambia: (2019) In late 2019, Zambia legalized cannabis for medical use and export. In an effort to keep the number of license applicants low, the country instated an annual licensing fee of USD 250,000, making it the most expensive country in the world in which to secure a cannabis production license.
  7. Uganda (2019): Medical cannabis has been legal in Uganda since 2015, however, due to the lack of a regulatory framework for commercialization, the government did not begin a formal licensing process for producers until 2019. In the intervening years, however, a few companies were able to begin cultivation of cannabis for export. One company, Industrial Hemp (U) Ltd, has been working with Pharma Limited, one of the biggest Israeli cannabis firms, to grow for export. The venture has, to date, invested USD 360 million to build the operation.
  8. Malawi: (2020) Five years after a measure of to legalize medical cannabis and industrial hemp, Malawi finally approved a measure to legalize medical cannabis and industrial hemp in March 2020.
  9. Ghana: (2020): Ghana became the first West African nation to legalize cannabis when the parliament permitted the production of medical cannabis and industrial hemp in March 2020. However, unlike the Southern and Eastern African nations, Ghana only authorized the cultivation of cannabis that is below 0.3% THC. This production threshold make’s Ghana’s market the most restrictive in Africa but still positions the country to capitalize on the burgeoning CBD market globally.
  10. Rwanda: (2020): Following extensive deliberation, Rwanda became the latest African country to reform its cannabis laws when it permitted the production and export of cannabis in October 2020. The country is working actively to identify partners in Europe and North America who can support the establishment of the industry in the country.
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