MURATINA CASE: A right to preserve and protect cultural rites

The Muratina case, brought before the High Court of Kenya at Kiambu, revolved around the fundamental rights of Ndeiya Traditional Brewers to preserve and practice cultural rites without undue interference by the State. The petition, denoted as Petition No. E020 of 2023, raised concerns regarding alleged violations of constitutional rights, citing various articles namely Article 11, 32, 22, 23, 27, 40, 44, 50, and 260, along with claims of infringements of the Fair Administrative Action Act.
At the heart of the matter lay the contention between the petitioners and state administrative officers, particularly under the Office of the President and the National Police Service.
The petitioners, duly authorized by the Kikuyu Cultural Elders (Kiama Kia Ma), asserted their right to prepare Muratina, a traditional brew, exclusively for cultural ceremonies and rituals, rather than for commercial purposes. They expressed dismay over what they perceived as unwarranted harassment and legal action by the respondents (the state agencies) against the Kikuyu Council of elders for their involvement in the preparation of Muratina.
The petitioners vehemently opposed this characterization of Muratina as illicit, arguing that such classification undermined the cultural significance and heritage of the Kikuyu people. They emphasized the long-standing tradition of Muratina’s use in various traditional ceremonies and rituals, overseen by the Kikuyu Cultural Elders. Additionally, they asserted that Muratina held no adverse health implications and was an integral part of their cultural identity.
Furthermore, the petitioners challenged the legality of the charges brought against them, arguing that the enforcement of the Alcoholic Drink Control Act infringed upon their constitutional rights, particularly their right to cultural expression and participation, as enshrined in Articles 11 and 44 of the Kenyan Constitution which states as follows:-

Article 11 of the Kenyan Constitution recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’.

Article 44 of the Constitution provides; –

“(1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice. (2) A person belonging to a cultural or linguistic community has the right, with other members of that community— (a) to enjoy the person’s culture and use the person’s language; or (b) to form, join and maintain cultural and linguistic associations and other organs of civil society.”

Article 17(2) of the African Charter on Human and Peoples’ Rights provides that every individual may freely, take part in the cultural life of his community.

The Petitioners submitted that their cultural celebrations are protected under the Constitution and that Muratina was not manufactured but prepared for cultural celebrations. They quoted the case of: –

Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR it was held;- “Article 11 (1) of the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Respect for indigenous culture is found in several international instruments as well…It follows that State actions that erode the cultural uniqueness of indigenous peoples would be contrary to the Constitution and international conventions.” The right to cultural practices is not absolute and is subject to limitations in line with Article 24 of the Constitution.

The Petitioners disagreed with the need to regulate Muratina as suggested by the Respondents. It was further submitted that Kiama Kia Ma is a registered society which regulates Muratina to preserve its cultural significance. The Petitioners submit that the Alcoholic Drinks Control Act is not in consonance with the Constitution as it contravenes the national values and principles of governance.
In response, the respondents justified their actions by invoking the Alcoholic Drink Control Act No. 4 of 2010,(the Act) contending that their intervention was necessary to enforce compliance with regulatory standards, especially concerning public health and safety concerns associated with traditional alcoholic beverages like Muratina.
That the national statutes on regulation and control of alcohol applies uniformly and precedes all other County legislation. It was contended that the Petitioners’ premises were closed for operating contrary to the regulatory framework, and that it is an offence to be in possession of Alcoholic drinks which do not conform with the requirements of the Act thus the charges levelled are valid. The Petitioners were asked to approach the relevant authorities for proper licenses for the manufacture and sale of Muratina.
The Respondents were also said to be in contravention of their obligation to promote cultural celebrations, while being discriminatory, as other cultures enjoy their culture without interference.
In its deliberation, the court acknowledged the profound cultural significance of Muratina within Kikuyu traditions and upheld the petitioners’ rights. The Judgment held that the Act does not prohibit traditional drinks, and particularly it does not identify muratina as an illicit brew.
The Respondents were therefore held to be wrong in treating muratina as an illicit brew. Further actions taken by the Respondents against the Petitioners for the sole reason that the Petitioners are brewing muratina lack legal basis and hence were unconstitutional.

Justice Mshila stated “unless the Respondent enforces specific provisions of the Alcoholic Drinks Control Act or any other law, they cannot raid homes, confiscate property and prefer unfounded charges against authorized muratina brewers. Those actions violate the cultural rights of the Agikuyu people”.

Consequently, the court further held that Kiama Kia Ma with assistance of the local Chiefs are to continue to regulate the preparation and consumption of muratina without prejudice to existing laws.

Related Posts

Leave a Reply