Omtatah, Cofek Move to Court to Stop Sh208 Billion Kenya-US Health Agreement

Busia Senator Okiya Omtatah and the Consumer Federation of Kenya have filed separate petitions challenging the implementation of a Sh208 billion health cooperation agreement between Kenya and the United States.

The two petitions, filed independently, seek to stop what they describe as an unconstitutional deal that bypassed public participation and parliamentary approval before being signed on December 4.

The Kenya-United States Health Cooperation Framework commits the US government to invest $2.5 billion directly into Kenya’s health institutions over the next five years, with Kenya required to match an estimated $850 million in additional health spending.

In his petition, Omtatah argues that the signing of the agreement violated constitutional provisions requiring meaningful public participation in matters affecting citizens. He contends that no consultations were held with health stakeholders, civil society or members of the public before the deal was sealed.

“The Constitution mandates that all state organs and actions affecting the public must involve meaningful public participation. Kenyans were denied a voice, rendering the process arbitrary and exclusionary,” Omtatah states in court documents.

The senator further claims the agreement qualifies as a treaty under the Treaty Making and Ratification Act and should have required negotiation by the Executive followed by parliamentary ratification before entry into force.

“The rushed signing, bypassing Parliament, usurps legislative authority and undermines the sovereignty of the people who delegated sovereign power to Parliament,” his petition reads.

Omtatah has raised concerns about potential mismanagement of the funds, noting that the framework’s direct channeling of money through government institutions lacks adequate safeguards. He warns that Kenya’s commitment to match US funding could burden the national budget, potentially exacerbating debt and diverting resources from grassroots health needs.

Cofek, in its separate petition, challenges the deal on grounds that it violates the Public Finance Management Act of 2012 and undermines national sovereignty. The lobby group is seeking a declaration that the framework constitutes a treaty requiring ratification by Parliament.

The petitioners are also seeking an order prohibiting government officials from transferring or sharing medical or epidemiological data to the USA or any of its agencies or representatives pending the hearing and determination of their cases.

According to court documents, the framework requires Kenya to share extensive medical and epidemiological data, including information on HIV/Aids, tuberculosis, malaria, maternal health and disease surveillance. The petitioners argue such data consists of sensitive personal information belonging to millions of Kenyans and forms part of the country’s strategic health security infrastructure.

“The agreement therefore directly implicates fundamental privacy rights and national sovereignty,” Stephano Mutoro, Cofek secretary general, said in an affidavit supporting the petition.

The lobby has expressed concern that despite the framework’s significant implications, the agreement was not subjected to constitutional principles of good governance under Article 10 of the Constitution. Cofek argues the omission occurred even though the deal involves cross-border transfer of sensitive health information and touches on national security interests.

Omtatah is seeking conservatory orders to suspend implementation of the agreement, warning that without such orders, there is a real risk of violating express provisions of the Constitution as the government moves to operationalize the framework.

The senator noted that the objectives of the framework include the supply of medical equipment to hospitals, delivery of health commodities, upscaling of the health workforce and expansion of health insurance coverage.

However, he maintains that the process leading to the signing of the agreement was unconstitutional, lacking transparency, public consultation and proper legal assessment.

The government has defended the agreement, arguing it safeguards the privacy of Kenyans and will strengthen the country’s health systems. Officials say the framework represents a significant investment in Kenya’s healthcare infrastructure and will improve access to quality health services.

Cabinet Secretary for Health Mutahi Kagwe and President William Ruto are listed as respondents in both petitions. The framework was signed on behalf of Kenya by Prime Cabinet Secretary Musalia Mudavadi and witnessed by President Ruto during a ceremony attended by US President Donald Trump at the Donald J Trump United States Institute of Peace in Washington DC.

The matter is pending hearing and determination by the court. Both petitioners are seeking immediate conservatory orders stopping any operational steps toward implementing the framework, including preparation of data exchange mechanisms and institutional arrangements that could facilitate transfer of Kenyan citizens’ sensitive medical information to the USA.​​​​​​​​​​​​​​​​