Why LSK put two MPs on notice of possible suspension and striking off

The Law Society of Kenya (LSK) has opened the door to disciplinary action against two of its members, Homa Bay Town Member of Parliament Peter Kaluma and his Mukurweini counterpart John Kaguchia.

In a statement on Wednesday, August 19, LSK said it is reviewing public remarks made by Kaluma and Kaguchia which the society says have been widely reported as inciteful.

The society added that it had directed its Practice Standards and Ethics Committee to urgently review publicly available records of remarks attributed to the two lawmakers to determine whether the remarks constitute professional misconduct under Section 60(1) of the Advocates Act.

Should the committee establish a prima facie case, LSK said it would facilitate the filing of formal complaints against the two advocates before the Advocates Disciplinary Tribunal.

LSK expressly warned that it would pursue the “most severe sanctions” available where the evidence and due process warrant them, including suspension from practice and striking off the Roll of Advocates.

The society said being elected to political office does not remove an advocate's professional obligations.

In addition, LSK noted that both Kaluma and Kaguchia are members of the legal profession and therefore remain subject to the professional and ethical standards governing advocates even while serving as MPs.

It distinguished between political expression and conduct that may cross into incitement.

According to the society, freedom of political expression does not extend to incitement to violence or hatred.

At the same time, LSK made clear that any question of criminal liability arising from the remarks falls outside its disciplinary mandate.

The society said investigations and prosecution of possible criminal conduct are matters for the Directorate of Criminal Investigations (DCI), Office of the Director of Public Prosecutions (ODPP) and the courts.

Its own responsibility, it said, is to deal with the professional conduct of its members.

The LSK Council has given the Practice Standards and Ethics Committee, through its Ethics and Disciplinary Liaison Sub-Committee, 14 days to review the publicly available record of the remarks attributed to Kaluma and Kaguchia.

The committee is expected to determine whether a professional misconduct case arises under Section 60(1) of the Advocates Act.

That section provides for complaints against advocates over professional misconduct, including conduct described in the law as disgraceful or dishonourable and incompatible with the status of an advocate.

If the committee establishes a prima facie case, LSK says it will, without further delay, lodge or facilitate the lodging of formal complaints before the Advocates Disciplinary Tribunal.

LSK also issued a broader warning to advocates involved in politics, directing them to refrain from inciteful, threatening or divisive utterances, particularly during the current electoral period.

It said it would pursue appropriate sanctions where evidence and due process support disciplinary action.

Also, the committee is required to report its progress to the LSK Council within 30 days. The body said it would neither protect an advocate because of political affiliation nor condemn one because of it.

The move comes against amid heightened scrutiny of political speech ahead of the 2027 General Election.

The National Cohesion and Integration Commission (NCIC) announced in July that it was investigating former Deputy President Rigathi Gachagua, Health Cabinet Secretary Aden Duale, Public Service Cabinet Secretary Geoffrey Ruku and other leaders over alleged hate speech and ethnic incitement.

The NCIC investigations followed complaints concerning remarks attributed to the politicians and formed part of increased institutional attention to potentially divisive political rhetoric.

Gachagua had also publicly challenged the NCIC to summon him over remarks he said were figurative, while Duale said he would not honour an NCIC summons unless Gachagua was also summoned. The former DP has since been summoned to appear before the commission later in August.

Kaguchia's case took a different route earlier this month after the Mukurweini MP was arrested by DCI officers on August 3 following remarks he allegedly made at a political rally in Kieni, Nyeri County.

Before his arrest, Kaguchia said he had not received a formal NCIC summons but maintained that he was willing to appear before the commission if required.