Busia Governor Paul Otuoma and Homa Bay Town MP Peter Kaluma have escaped prosecution over remarks that triggered complaints of hate speech, although the National Cohesion and Integration Commission (NCIC) has ordered both politicians to take steps to address concerns raised over their statements.
The commission said the remarks by the two leaders raised concerns because of their potential to create hostility, intimidation and ethnic tension, but ruled that the evidence before it did not justify prosecution for hate speech.
The decision was contained in a determination delivered in Nairobi on Thursday as the NCIC also cautioned political leaders to watch their language as the country heads towards the 2027 General Election.
In Otuoma's case, the commission examined comments he made during a June 27 gathering in Bulanda, Busia County.
NCIC said the remarks could be interpreted as suggesting that Busia belonged to one ethnic group and that members of that community could determine who was allowed to live, work or conduct business in the county.
The commission said this could create hostility towards residents and traders regarded as outsiders because of their ethnic or national background.
However, after considering the evidence and submissions made in the matter, NCIC concluded that there was no sufficient basis to take further action against the governor for a hate speech offence.
Otuoma has instead been directed to unequivocally withdraw the remarks and make a public clarification that his comments were directed at alleged criminal conduct.
The clarification must make clear that he was not referring to local communities, traders from other parts of Kenya or Uganda, or any ethnic or national group.
The governor must also avoid using similar language in future and sign an Acceptance of Conciliation Form, which is to be submitted to the commission's secretary within seven days.
The NCIC separately reviewed complaints concerning Kaluma's remarks made ahead of the Linda Mwananchi rally in Homa Bay.
The MP explained to the commission that his comments were made while engaging boda boda riders and were intended as a warning to residents about what he viewed as an imminent criminal threat.
He said his intention was to protect residents.
NCIC nevertheless found the language used by Kaluma to be ambiguous and intemperate, saying it could reasonably be interpreted as encouraging intimidation.
The commission, however, found no evidence that the lawmaker intended, caused, organised or directed the violence that later occurred during the Linda Mwananchi rally on August 16.
The clashes left two people dead and several others seriously injured.
According to the commission, it had also not been established that the group targeted by Kaluma's remarks was identified on the basis of colour, race, nationality, citizenship, ethnic origin or national origin.
There was also no proof that the remarks were intended or likely to provoke ethnic hatred, NCIC said.
The commission clarified that its decision does not stop other investigative agencies from examining whether other offences may have been committed.
NCIC chairman Bishop Kepha Nyamweya Omae said the commission was working alongside the police, Directorate of Criminal Investigations, Office of the Director of Public Prosecutions and Ethics and Anti-Corruption Commission to enforce standards of conduct among political leaders.
He said the process concerning the two politicians would be completed after they sign declarations promising not to repeat the offending remarks.
The commission also called on politicians to avoid inflammatory statements that could worsen divisions in the country as the 2027 elections draw closer.
While the NCIC found no grounds for hate speech prosecution against either Otuoma or Kaluma, it made clear that both leaders must address the concerns raised over their words and exercise greater restraint in their public engagements.