The government has moved to reassure the High Court that no sensitive personal health data of Kenyans will be shared with the United States under the recently signed health cooperation agreement.
In court filings seeking to lift orders that halted the deal, Attorney-General Dorcas Oduor said the framework only allows the sharing of summarised data that cannot be traced to any individual, insisting that the privacy of citizens remains protected.
The assurances were made in an application asking the court to set aside orders that suspended the five-year Health Cooperation Framework signed earlier this month in Washington.
The suspension followed a case filed by the Consumer Federation of Kenya, which challenged the agreement over fears that Kenyans’ medical and epidemiological data could be transferred outside the country in a manner that exposes citizens to permanent harm.
In her submissions, the AG maintained that Kenya would not disclose any sensitive or identifiable personal information. She said the cooperation framework strictly limits data sharing to aggregated, non-identifiable information and that such data would only be used to support the implementation of agreed health programmes.
According to the AG, the data in question would be shared in a summarised and de-identified form for purposes such as monitoring, evaluation, public reporting and planning. She explained that aggregated data does not contain personal identifiers and cannot be linked back to any individual.
“The de-identification of such data ... means removing or hiding personal information from records in such a way that the remaining information cannot be used to identify an individual,” the AG said.
She further argued that the Data Protection Act, which Cofek relies on heavily in its petition, only sets conditions and safeguards for the transfer of personal data outside Kenya. The law, she said, does not apply to aggregated data that does not relate to an identified or identifiable natural person.
The AG added that the health cooperation framework was developed as part of the government’s constitutional duty to take steps towards the progressive realisation of the right to the highest attainable standard of health. She said the agreement aims to strengthen efforts to eliminate HIV, malaria, TB and other emerging infectious diseases.
Cofek, however, told the court that once Kenya’s medical and epidemiological data is transferred to another country, any harm arising from misuse would be permanent and irreversible. The lobby group argued that Kenyan courts and regulators would lack the authority to recall, restrict or supervise how such data is used once it leaves the country.
The consumer group also expressed concern that the government had already taken steps towards implementing the framework despite the legal challenge. In its filings, Cofek claimed that preparations were underway, including the development of data-exchange mechanisms and institutional arrangements that could trigger the transfer of sensitive medical information to the United States.
The High Court is expected to determine whether the suspension orders should remain in place as it considers the substance of the petition challenging the agreement.
