Kenya’s High Court suspended the implementation of the country’s Memorandum of Understanding with the United States on Thursday after two separate court challenges by the Consumer Federation of Kenya (COFEK) and local Senator Okiya Omtatah.

COFEK argues that the agreement contravenes Kenya’s Data Protection Act, Digital Health Act, Health Act, and new data regulations that protect citizens’ health data.

Meanwhile, Omtatah petitioned the court to halt the agreement on the grounds that it undermines the principles of public participation, parliamentary oversight and binds Kenya to terms that could strain the country’s budget.

The five-year agreement signed in Washington last week commits the US to providing up to $1.6 billion between 2026 and 2030, mainly for HIV/AIDS, tuberculosis (TB) and malaria prevention; maternal and child health, and outbreak surveillance and response.

Kenya has committed to increasing domestic health spending by $850 million over the five years, with incremental annual increases from $77,5 million (10 billion Kenyan shillings) in 2026 to $387,7 million in 2030.

But the additional expenditure will cover priority issues for the US, such as employing additional epidemiologists and lab technicians to monitor outbreaks.

The court has given COFEK until 17 December to lodge court papers, and the government has until 16 January to file its response. The case will return to court on 12 February.

Speaking after the judgement, Omtatah told the Kenya Broadcasting Corporation that there had been no involvement of the Senate in developing the agreement, which has “major” implications for the country’s finances as it commits the country to spending billions of extra Kenyan shillings.

“Who has appropriated that money? Where is the government going to get that money? Thousands of employees are going to be recruited to work under this arrangement, and then [in 2030], when the arrangement expires, they are supposed to transfer to the government,” Omtatah said.

An earlier draft of the agreement gave the US unfettered access to Kenya’s health data but, following an outcry from local organisations about the violation of patient confidentiality, the signed agreement has been amended to commit to data sharing in terms of Kenyan law:

The US-Kenya Data Sharing Agreement, which is an appendix to the main MOU, sets out the terms of access in more detail.

The court has instructed COFEK to serve all involved officials with the petition and court orders by December 17. The government has until January 16 to file its response. The case will return to court on February 12.

Civil society appeal to African leaders

Earlier this week, almost 50 civil society organisations published a letter calling on African heads of state and government to demand “equity and sovereignty” in their new bilateral health agreements with the United States.

Last week, the US signed bilateral agreements with Kenya, Rwanda, Liberia, Uganda and Lesotho as part of the revival of US health aid, including the US President’s Emergency Plan for AIDS Relief (PEPFAR), which was stopped abruptly when Donald Trump became US president in January, severely straining several African countries’ health systems.

In exchange, African countries have to commit to signing “specimen sharing agreements” to provide the US with “physical specimens and related data, including genetic sequence data, of detected pathogens with epidemic potential for either country within five days of detection”. 

Initially, the specimen-sharing was for 25 years, but in the agreements seen by Health Policy Watch, this has been trimmed down to between seven and 10 years. 

US, which pulled out of the World Health Organization (WHO) in January, appears to be trying to undermine the global talks on pathogen access and benefit-sharing (PABS) currently underway at the WHO.

The PABS system, the last outstanding issue in the Pandemic Agreement, will govern both how information about dangerous pathogens should be shared (the access part) and how countries that share this information should be rewarded (the benefits).

Countries that have signed MOUs have three months to present “implementation plans” to the US, and thus have the opportunity to negotiate better terms. However, civil society is completely shut out of these agreements, with the exception of “faith-based organisations” in Uganda that provide health services.

‘One-sided terms’

The letter urges African governments to “advance counterproposals grounded in national law, regional strategies, and public accountability, rather than accept one-sided terms”. 

“These agreements risk entrenching unequal power dynamics and compromising sovereignty,” said Aggrey Aluso, Executive Director of the Resilience Action Network Africa (RANA). 

“Africa has committed to building its own health sovereignty; no government should accept terms that hand long-term control of our data and pathogens to a foreign government – and its contractors – without clear, enforceable obligations that protect our people, uphold our laws, and strengthen public institutions,” Aluso added.

For example, Uganda’s MOU with the US demonstrates a lack of regard for the country’s sovereignty by declaring that the MOU’s implementation plan will be “an annex to Uganda’s national health budget and guide parliamentary appropriation”:

As with the Kenya-US MOU, the US commits $1,7 billion over five years while Uganda commits to increasing its domestic share of the items covered by $500 million over the same period.

Meanwhile, Liberia will need to fund an additional 1,851 health workers, including 342 laboratory workers who may not normally have been a priority for the country, according to its MOU with the US.

By 2030, Liberia will shoulder almost its entire expenditure for commodities, including malaria and HIV diagnostics and countermeasures, at an annual cost of $10 million by 2030.

‘Trade power and dignity’

“These deals ask countries to trade their power and a little of their dignity for less support than Trump took away early this year,” said Peter Maybarduk, director of Public Citizen’s Access to Medicines Program. 

“African nations have stood together to negotiate better access to medical tools ever since COVID’s deadly vaccine inequity. Trump would undermine even that principled stand. Each time we think we’ve seen the bottom, the Trump administration finds a way to dig a deeper, darker role for the United States in global health.”

Meanwhile, World Health Organization (WHO) Director General Dr Tedros Adhanom Ghebreyesus told a media briefing in Geneva on Thursday that the bilateral MOUs are agreements between two sovereign nations with their own national interests.

He added that the MOUs did not threaten the global pathogen-sharing agreement currently being negotiated at the WHO, as they would cover 50 countries maximum (according to the US) in comparison to the 194 WHO member stats.

“How many countries, maximum target, do they have? They say 50 countries. This cannot replace an agreement of an international nature. That means 194 countries. So the multilateral system, the common platform, fills almost every space. 

“We say solidarity is our best immunity, and this means all 194 countries should come to the table, if possible. Otherwise, the majority, probably 90% should achieve [a pathogen sharing arrangement] in order to make sure that the antigen come from all corners of the world. Because we never know where the next outbreak will come from.”