The Court of Appeal has dismissed a petition challenging the mandatory membership of the Law Society of Kenya (LSK) for all practicing advocates, upholding the constitutionality of the requirement as a justified limitation of the freedom of association.

The decision, delivered by Justices Gatembu Kairu, Pauline Nyamweya, and Jessie Lesiit, upheld a 2019 High Court ruling that found sections 22 and 23 of the Advocates Act and Section 7 of the Law Society of Kenya Act valid.

The provisions require advocates to join the LSK to obtain a practicing certificate. The appeal was filed by Eunice Nganga, who argued that compulsory LSK membership infringed on Article 36 of the Constitution, which guarantees the freedom of association, and Article 27, which prohibits discrimination.

She also challenged the requirement for continuing legal education (CLE) as a prerequisite for practicing certificate renewal.

Nganga urged the courts to declare the provisions unconstitutional and instead establish “a regulatory body independent of the Law Society of Kenya… whose powers and functions shall include certifying advocates, handling complaints and disciplinary matters, and accrediting entities to offer continuing professional development courses, but without imposing membership as a condition for practice.”

Necessary regulation

In rejecting the appeal, the judges emphasized the unique role of advocates in upholding justice and the rule of law, noting that compulsory membership ensures accountability and shields the profession from unqualified persons.

“The compulsion to join the LSK under sections 22 and 23 of the Act is a condition for the issue of practicing certificates to advocates… which is reasonable and justifiable in an open and democratic society,” the court stated in a decision rendered on Friday.

The Court also drew parallels with international practice, noting that thirty-one US states and the District of Columbia maintain mandatory bar associations.

It referenced landmark US Supreme Court decisions, including Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990), which upheld compulsory bar membership as constitutional when tied to regulating the profession and improving legal services.

“The justifications for compelled association—namely the state’s interests in regulating lawyers and improving the legal system—limit the permissible extent of that compulsion,” the Court said, endorsing the same reasoning for Kenya’s legal framework.

The Court found that Nganga failed to demonstrate how the LSK engaged in activities outside its statutory mandate or how her rights had been unjustifiably infringed.

“The appellant did not identify or demonstrate any activities that were being undertaken by the LSK that are outside the permissible extent of regulation of advocates, improvement of legal services or achievement of its statutory objectives,” the judgment read.

Concluding that the appeal lacked merit, the judges dismissed it without costs, citing the matter’s public interest nature. Capital News