Simmering row over diplomatic immunity for global NGO as lawyers threaten suit

Lawyers Owiso Owiso and Evans Ogada on August 4 wrote to the Foreign Office requesting to provide copies of the Host Country Agreement (HCA) concluded between Kenya and GCA pursuant to the right to access information held by the state.

The duo also sought copies of all other agreements concluded between the Kenyan government and GCA.

“It has come to our attention that the ministry intends to grant privileges and immunities to Global Centre on Adaptation pursuant to section 11 of the Privileges and Immunities Act (Cap 179),” the lawyers said in the letter.

"As this is a matter that has significant implications for Kenya's sovereignty and national interests and which therefore affects the nation, you are obligated under articles 10, 232 and 35 of the Constitution of Kenya, 2010, to provide to the public information relevant to the proposed grant of immunities to Global Centre on Adaptation."

The immunity and privileges were granted to the organisation, which works as a solutions broker to accelerate action and support for adaptation solutions, its director, officials and staff under the Privileges and Immunities Act.

This means they are immune from lawsuits and legal processes, exempt from paying local taxes, except for imported goods and those purchased for official use or export.

Their premises and official records cannot be searched or seized. The director, officials and employees of the organisation would also be exempt from legal proceedings and income tax on their compensation.

Foreign Affairs PS Korir Sing’Oei in a letter dated August 29 declined to provide the requested information, citing “national security” reasons.

 He said the lawyers had not indicated a clear reason on the need to access the “confidential documents”.

“The ministry wishes to inform that while Article 35 of the Constitution of Kenya, 2010, and the Access to Information Act, 2016, generally guarantee the right of access to information held by the state, this right is subject to certain lawful restrictions,” the PS said in his response.

He noted that Section 6(1) of the Act exempts disclosure of information where such disclosure is likely to undermine Kenya’s national security, which includes foreign relations.

Sing’Oei said the Official Secrets Act prohibits the unauthorised disclosure of classified information or documents that may prejudice Kenya’s safety, interests or foreign relations.

“HCAs, by their nature, contain provisions relating to privileges, immunities and obligations of international organisations operating in Kenya, and are considered sensitive instruments of Kenya's foreign relations. Accordingly, such agreements fall within the category of documents that are restricted from public disclosure unless express authorisation is granted by the Government of Kenya.

“In this regard, the ministry regrets to inform that it is unable to furnish a copy of the requested Host Country Agreement,” the PS concluded.

Dissatisfied, the duo wrote to the Ombudsman on September 5, asking it to review the ministry’s decision to reject their request.

They argued that neither Article 35 of the Constitution nor the Access to Information Act gives conditions for the right to access information upon demonstration of ‘a clear reason’.

“Section 4(2) of the Act in fact emphasises that the requester’s reasons (or lack thereof) do not affect enjoyment of the right. In any case, we indeed indicated, in our request, clear justification for requesting said information,” they said.

They also argued that the right to access information cannot be limited through “general, vague and ambiguous terms such as ‘national security’”.

If need be, the lawyers have said they will move to court to compel the ministry to release the agreements.

The GCA debacle follows a similar one with the Gates Foundation in November last year.

The ministry granted the foundation due to its work in poverty alleviation, healthcare and education across the country.

Prime CS Musalia Mudavadi, who is also in-charge of the Foreign Affairs docket, argued that the privileges and immunities were meant to facilitate the foundation’s seamless operation as an “international organisation”.