Health Cabinet Secretary Aden Duale has been found in contempt of court over continued construction of a US Ebola quarantine facility in Laikipia despite a court order halting it.
The High Court has summoned the CS to appear before it in person on Tuesday at 11am for mitigation and sentencing.
This followed an application by Katiba Institute, a petitioner in the case seeking to stop construction of the US-backed facility in Kenya.
The court ruled on Monday that CS Duale had failed to comply with interim orders halting establishment and operationalisation of the proposed Ebola quarantine, isolation and treatment facility pending determination of a constitutional petition.
The ruling marks a major development in the high-profile legal battle over a proposed US-backed Ebola facility that has drawn opposition from civil society groups, residents, lawyers and the County Government of Laikipia.
Katiba Institute and the Law Society of Kenya moved to court in May, arguing that the project was being implemented without adequate public participation, disclosure and constitutional safeguards.
The court subsequently barred the government from establishing, operationalising or approving any Ebola-related quarantine, isolation or treatment facility linked to arrangements with the United States or any foreign government pending hearing of the petitions. The court also ordered the government to disclose agreements, assessments, approvals and operational protocols relating to the project.
He argued that court orders had only halted the bilateral arrangement, but did not prevent Kenya from independently strengthening the quarantine and isolation capacity at Laikipia Air Base as part of its public health preparedness mandate.
The government further maintained that allegations of continued implementation were based on rumours and unverified media reports, and insisted it had complied with disclosure requirements imposed by the court.
The court accepted the government's explanation on the disclosure dispute and declined to find CS Duale in contempt on that issue.
"The petitioners dispute the sufficiency of the disclosure but have not demonstrated the existence of additional documents that were withheld," the court said.
It added that, in the absence of contrary evidence, the court accepted Mr Duale's position that the documents supplied constituted the full extent of material available to him.
'Avoiding compliance by recharacterising ongoing construction'
The court, however, reached a different conclusion on construction works in Laikipia.
It said the CS had acknowledged understanding that the court required suspension of construction activities but proceeded on the basis that works could continue if undertaken solely by the Kenyan government, rather than through the partnership with the United States.
"As I understand it, what the second respondent seeks to do, is to avoid compliance by recasting or recharacterising the ongoing construction," the judge said.
The court found that changing the identity of the actors involved in the project did not alter the substance of the activities prohibited by the court.
"An order of the court is not to be outflanked by semantics or evasion. The duty is to obey the order as issued, not as one might wish it had been framed," the court said.
It further observed that court orders are commands that must be obeyed and cannot be circumvented through reinterpretation or relabelling of restrained conduct.
"Knowing full well that the Court required all construction activities at Laikipia Airbase to cease, he persuaded himself that he could continue by altering the composition of the actors rather than the substance of the conduct," it said.
