A Kenyan High Court judge halted implementation of a landmark US-Kenya health cooperation agreement on December 19, pending a constitutional challenge. Justice Chacha Mwita of the High Court of Kenya at Milimani Law Courts issued the order suspending the framework signed on December 4 between the governments of Kenya and the United States, following a petition filed by Busia County Senator Okiya Omtatah challenging its legality on grounds including lack of public participation, lack of parliamentary approval, data protection concerns, fiscal responsibility, and other constitutional issues.
The five-year agreement committed the United States to provide up to $1.6 billion to support priority health programmes in Kenya, including HIV/AIDS, tuberculosis, malaria, maternal and child health, polio eradication, disease surveillance, and outbreak preparedness. Kenya pledged to increase domestic health spending by approximately $850 million to gradually assume greater financial responsibility. Key provisions included transitioning procurement of health commodities to Kenyan systems, integrating frontline health workers into the government payroll, scaling up electronic health data systems, and strengthening the role of faith-based and private providers within Kenya’s health system.
President William Ruto and US Secretary of State Marco Rubio described the agreement as a mutually beneficial partnership that would strengthen Kenyan health systems and deepen bilateral ties. President Ruto emphasised that the agreement aligned with Kenya’s national interests and stated that its legal underpinnings had been thoroughly reviewed to safeguard Kenyans’ interests, including protections for health data under Kenyan law. He framed the deal as a positive shift from previous donor arrangements by channelling resources directly to government institutions rather than through NGOs.
Criticism emerged almost immediately after details of the agreement became public, particularly regarding its intention to channel funding through government systems and data platforms. Some health and civil society actors argued that excluding non-governmental organisations from implementing roles could weaken accountability and oversight, warning that NGOs play essential roles in delivering and monitoring health services. They also raised concerns that Kenya’s expanded domestic health spending commitments could strain the national budget without the usual checks and balances of third-party implementers.
Prominent experts and rights advocates pointed out that the agreement’s provisions on data sharing—especially cross-border digital health data—raised serious concerns about privacy, consent, control, and long-term governance. Commentators highlighted that if health data isn’t protected with clear legal safeguards on confidentiality and accountability, it could deter people—especially those with stigmatised conditions like HIV or tuberculosis—from seeking care and could open the door to misuse or commercial exploitation of sensitive information.
Opposition political figures accused the government of opacity and of potentially ceding aspects of national sovereignty by agreeing to terms that could expose sensitive health information to foreign oversight. These concerns were amplified in social and traditional media.
In the face of rising concerns, President Ruto publicly defended the framework, insisting that no Kenyan health data would be used inappropriately and that the agreement had been vetted to comply with Kenyan laws. He characterised criticisms as misinformation, particularly from groups losing intermediary roles under the new model. Kenyan Health Cabinet Secretary Aden Duale echoed these assurances, rejecting claims that the pact compromised data privacy or sovereignty.
On December 10-11, 2025, civil society and public interest litigants filed legal challenges in the High Court of Kenya. The Consumers Federation of Kenya (COFEK) and other petitioners argued that the agreement’s provisions on health data sharing violated constitutional rights, including privacy, as well as national statutes like the Data Protection Act, Digital Health Act, and Health Act. They also argued the pact lacked proper public participation and parliamentary oversight. Justice Bahati Mwamuye initially issued conservatory orders temporarily suspending implementation of the agreement insofar as it involved the transfer, sharing, or dissemination of medical, epidemiological, or other sensitive personal health data, pending a full judicial hearing. This effectively halted key components of the framework until substantive issues—especially data governance and constitutional compliance—are resolved in court.
Justice Mwita’s December 19 order went further, halting implementation of the health cooperation framework pending hearing and determination of Senator Omtatah’s petition. The court has set a timetable for further proceedings in early 2026.
The suspension underscores that, regardless of diplomatic and executive endorsement, international or bilateral treaties and agreements must meet Kenya’s constitutional standards before they take effect. The High Court’s action demonstrates the judiciary’s critical role as a check and balance on executive and foreign policy actions, especially where fundamental rights like privacy and public participation are at stake. It reinforces that even high-level international agreements are subject to constitutional scrutiny.
The legal challenge and public debate have brought to the fore the constitutional requirement for meaningful public involvement and parliamentary oversight in decisions that affect national policy and citizens’ rights. That citizens and civil society were able to challenge the government’s actions in court reflects robust civic space.
The controversy emphasises the increasing relevance of data governance. As digital health systems grow, Kenyans are asserting that national data sovereignty and robust protections are as important as funding commitments, shaping how future agreements—both domestic and international—will be negotiated and implemented.
The upshot is that the rule of law in Kenya should not be merely rhetorical. When executive decisions intersect with civil liberties, constitutional and statutory requirements, the institutional framework through courts and civil society functions to ensure accountability, legality, and rights protection.
