The High Court has once again stepped in to halt the implementation of the health cooperation agreement between Kenya and the United States, signaling that the deal cannot proceed until legal questions are resolved.
The court’s order affects the Cooperation Framework signed on December 4 and comes in response to a petition by Busia Senator Okiya Omtatah.
The petition claims that the deal may contravene the Constitution in several ways, including bypassing Parliament under the Treaty Making and Ratification Act, ignoring public participation, breaching rules on public finance and devolution, and violating privacy rights. In granting the order, the court emphasised the need to protect transparency, accountability and the rule of law.
“In the circumstances, therefore, all factors considered and without deciding with finality the issues raised in this petition, this court is of the view, and finds, that it is in the public interest and interest of the rule of law, transparency and accountability that conservatory orders be granted,” the ruling stated.
This follows an earlier decision by a different judge who had issued a similar injunction in a petition filed by the Consumer Federation of Kenya.
Omtatah argued that Parliament’s approval and public input were essential before signing such a treaty. He also raised concerns about the protection of sensitive health data, noting that medical records are private and can only be shared with the person concerned.
He warned that the Framework could compromise personal data, conflicting with the Constitution and the Data Protection Act.
The government defended the agreement, highlighting the urgent need to address serious health risks. It said the World Health Organization classifies HIV, tuberculosis, and malaria as global threats due to their severe impact on health and society.
Health Principal Secretary Ouma Oluga told the court that managing these diseases requires seamless coordination across borders and uninterrupted access to treatment. He said funding must come from the government, international partners, and implementing agencies.
The State explained that USAID has been a major contributor to Kenya’s health sector. The sudden pause in US support has already disrupted operations, creating uncertainty in programmes that depend on external funding.
These programmes cover vital areas, including medical supplies, training and deployment of health workers, public health research, and management of HIV, tuberculosis, malaria, immunisation, nutrition, and reproductive health services.
They also contribute to policy development, governance, financing, and service delivery, strengthening the overall health system.
The court heard that tackling epidemics like HIV, tuberculosis, and malaria requires a combined approach of domestic funding, foreign support, and collaboration with partners such as the WHO. Oluga emphasised that the US provides significant external funding, and its withdrawal threatens service delivery, availability of commodities, health workforce stability, and health data systems.
“The potential consequences of this would be catastrophic for Kenya’s overall health system performance and related outcomes,” Oluga said.
