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Introduction
There is something both strange and frustrating about the fact that an 18-year-old Kenyan can vote, get married, be tried in court as an adult, and even join the military and risk their life for the country, but still cannot legally buy a beer. This contradiction sits at the center of the latest proposal by the National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA). The proposal, part of the 2025 National Policy for the Prevention, Management, and Control of Alcohol, Drugs and Substance Abuse, wants to raise the legal drinking age from 18 to 21. The goal is to reduce youth exposure to alcohol and prevent addiction.
The intention might seem noble, but the approach is lazy and disconnected and could backfire. It shows a poor understanding of both law and logic and could even raise constitutional concerns. At 18, a Kenyan is considered a full adult. They can vote, sign contracts, pay taxes, and join the armed forces. This is the age our Constitution says someone becomes responsible for their actions. To then say that same person cannot make a decision about alcohol is not only confusing, but insulting. This kind of policy reflects a worrying trend where the state picks and chooses which rights young adults can enjoy and which ones they cannot. It sends a message that young people are only adults when it is convenient for the government. That is not public health. That is control.
It is a fact that alcohol abuse among youth is a serious issue in Kenya. There is a growing trend of underage drinking, addiction, and the spread of unregulated liquor. But raising the drinking age is not a serious or effective way to fix this. Experience from countries like the United States shows that higher drinking ages often push alcohol consumption underground. Young people drink in unsafe environments, away from any rules or support. This creates more harm, not less. It is well known that strict bans can create the opposite effect. When you treat legal adults like children, you are more likely to encourage risky behavior rather than responsibility. The biggest problem with NACADA’s proposal is not what it wants, but what it ignores. The real issue in Kenya is not that 18-year-olds can drink legally. It is that our current alcohol laws are poorly enforced.
The Constitutional Framework: Who Is an Adult?
Article 260 of the Constitution of Kenya, 2010 defines an “adult” as a person who has attained the age of eighteen years. This is a legal threshold upon which citizenship rights are conferred. At 18, Kenyans gain full legal capacity: they can vote (Art. 38), marry (Marriage Act, 2014), enter contracts (Law of Contract Act, Cap. 23), pay taxes (Income Tax Act, Cap. 470), and be prosecuted as adults in criminal proceedings (Penal Code, Cap. 63). Raising the legal drinking age to 21 while keeping the age of majority at 18 creates a dual standard of adulthood, which is legally incoherent. It undermines the uniformity and predictability expected in lawmaking. This contradiction violates the principle of equality before the law and non-discrimination enshrined in Article 27 of the Constitution. Treating some adults (aged 18 to 20) as capable of making life-altering decisions but not of consuming alcohol amounts to arbitrary discrimination without a rational legal basis.
It must also be noted that NACADA does not have legislative competence. The legal drinking age is governed by Section 28 of the Alcoholic Drinks Control Act, 2010, which sets the age of lawful consumption and purchase of alcohol at 18 years. Any change to this provision must be done through an amendment in Parliament, subject to public participation as required by Article 118(1)(b) of the Constitution. Policy frameworks such as the one NACADA is proposing are not binding unless anchored in law. Any enforcement attempt without legislative amendment would be ultra vires, violating the principle of legality in administrative law. Moreover, as established in the Supreme Court case of Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR, the separation of powers prohibits agencies from arrogating powers they have not been granted by statute or the Constitution. NACADA cannot bypass Parliament in effecting such a fundamental change.
Enforcement, Not Restriction, Is the Real Legal Gap
The Alcoholic Drinks Control Act already prohibits sales to persons under 18 (Section 28), mandates licensing, and allows for enforcement against violations. The real failure is regulatory enforcement, not legislative insufficiency.Increasing the age to 21 does nothing if minors still access unregulated, illicit brews in slums and rural areas. It would instead criminalize young adults, worsen selective policing, and increase vulnerability to abuse by law enforcement. The legal test of proportionality, used in determining the constitutionality of limiting rights (as affirmed in Petition No. 266 of 2015, Coalition for Reform and Democracy (CORD) v Attorney-General), would likely find such a measure unjustifiable in an open and democratic society.
If the proposal were enacted without strong evidence and legal grounding, it would be open to judicial review under Article 22 for violating fundamental rights and freedoms. Civil society groups would be justified in filing a petition under the Mutunga Rules (Legal Notice No. 117 of 2013) to challenge the law for infringing Articles 27, 28 (dignity), and 47 (right to fair administrative action).The courts have shown an increasing willingness to strike down administrative actions that fail to meet the constitutional standards of legality, rationality, and proportionality.
At the end of the day, it comes down to one basic truth: You cannot say someone is an adult and then deny them the rights of adulthood. Either an 18-year-old is trusted to live as an adult, or they are not. If they are trusted to vote, work, marry, join the army, and pay taxes, then they must also be trusted to decide, legally and responsibly, whether to have a drink.To deny them that is not only unfair. It goes against the very Constitution we all claim to respect. No public health policy should come at the cost of our democratic values. And this one does. If NACADA or Parliament wishes to address alcohol abuse, the answer lies in education, public health support, and strict enforcement of existing laws — not in denying rights to legal adults.This proposal is not only a poor policy. It is a legally indefensible position that weakens the coherence of our legal system and chips away at the dignity of Kenya’s youth. It must be firmly opposed, not only in public discourse but, if necessary, in the courts of law.
