Duale and Kenya's relentless fight for constitutionalism

Our history, just with the histories of many African nations, reveal that Africa and the world has struggled with what the late Prof HWO Ogendo describes as ‘constitutions without constitutionalism’. That is a culture where the Constitution and the rule of law mean nothing rather than just being ornamental. It is the sure way of operation that the post-colonial state in Kenya deployed to take to the drain all the progressive clauses of the independent Constitution through destructive structural amendments.

In the new dawn of our current Constitution, the amendments appetite has not succeeded a decade on, but there is another ogre that we must face as a country, that of blatant impunity by disobedience of court orders. Mr Duale is just a new entrant to this field, with many others before him, the most notorious in the minds of Kenyans being former Interior Minister Fred Matiang’i during the illegal deportation of Miguna Miguna. The number of flouted orders at the time leaves a shameful mark in history.

Back to Duale, Katiba Institute approached the High Court to hold him in contempt over the flouting of orders of the court barring the construction of the United States Ebola facility. The court, in its ruling on June 22, 2026, found the Health Cabinet Secretary (CS) in contempt of the court orders and directed for a hearing of his sentencing and mitigation on June 23, 2026. On that date, Justice Patricia Nyaundi allowed the parties before it to be heard.

Duale maintained that the construction of the Ebola facility in Laikipia was strictly done under the honest belief of technical and policy advice and offered an apology for the contravention of the orders of the court and assured the court  any further establishments in the facility would be halted as the main case progresses. Strangely, the court took in that defence and pardoned him with a warning even as the other parties argued that he deserved jail and a punitive fine to send a warning to the prospective brother and sister violators.

I think in our constitutional moments and times in history, this was a partial win that has significant constitutional consequences. Duale remains a convict; that cannot be taken away by the failure of the court to jail him or impose a fine. Looking at our neighbours and many African countries, one needs to be ballistically optimistic to imagine that a CS or a minister of government can be found in contempt.

Further, the fact that the CS appeared in court for sentencing and opted not to appeal the conviction for the sake of it is equally significant. In law, even a warning is a sentence in this case. It is a method to restate, mildly and disappointingly as it is, that an action is one that is not acceptable and completely antithetical to our constitutional practice.

I do not agree with the court that a warning after an apology would have sufficed here. Indeed as submitted by the applicants, the purpose of contempt conviction and sentencing is to preserve the sanctity of the rule of law and preserve the culture of constitutionalism. For that matter, a jail sentence together with a hefty fine imposed and payable in the personal capacity of the CS would have been issued by the court. But here is the twist, Duale is a constitutional convict and legally speaking, the lenient sentence does not take away the conviction itself.

A strict reading of the tenor of our Leadership and Integrity Chapter of the Constitution would find Duale ineligible to hold public office. We saw this from our sister nation, South Africa. When Jacob Zuma was convicted of Contempt of Court and subsequently sentenced. He was pardoned by the President. A question arose before the Constitutional Court of South Africa as to whether the pardon could be interpreted to undo the conviction and allow him run for elective office. The Apex Court of South Africa found that a conviction remains unless overturned, a pardon only lessens the sentence, it cannot be interpreted to mean the finding of guilt is erased.

Unfortunately, in this case, the Duale conviction is not of guilt against a private party. The conviction is a finding of sin against the Constitution itself, since obedience to court orders is part of the superstructure of Article 10 of the Constitution on the Rule of Law. Obviously, the offence against the Constitution as this directly militates against Chapter 6 of the Constitution, how can a constitutional convict be eligible to hold a constitutional office? This cannot fit within even the most generous interpretations of the constitution.

I suggest this is the time to test these uncomfortable but potential revolutionary options the Constitution has provided us with. Duale stands to be a convict of contempt of court. We know for sure that this regime has been in the boxing ring with the Constitution from day one and thus we expect less from political accountability where the CS is fired by virtue of the conviction alone. However, all is not lost.

A member of the public in light of this contempt convict can approach the High Court for a declaration that Duale cannot continue holding office. Sounds a radical test but why not try it? If it fails, we learn, if it succeeds, the Constitution wins altogether.