Okiya fights US-Kenya health pact over data concerns

Busia Senator Okiya Omtatah has filed a petition at the High Court seeking to nullify the Kenya–United States Health Cooperation Framework, warning that the deal threatens Kenya’s sovereignty, fiscal integrity, data security and citizens’ right to health.

Filed on Monday at the Constitutional and Human Rights Division in Nairobi, the petition asks the court to suspend and ultimately void the framework, signed on December 4 in Washington DC by Prime Cabinet Secretary Musalia Mudavadi for Kenya and US Secretary of State Marco Rubio.

The government has described the agreement as a transformative boost for Kenya’s health sector, bringing $1.6 billion (Sh212 billion) over five years to support medical equipment supply, expanded insurance coverage, workforce expansion and essential commodities.

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President William Ruto hailed it as a major step toward strengthening health services.

But Omtatah paints a starkly different picture. He argues the framework was “executed unilaterally by the Executive, without parliamentary oversight, public consultation, or transparent fiscal assessment,” bypassing constitutional safeguards and exposing Kenya to long-term policy and financial risks.

“The framework was negotiated in secret. Kenyans were denied a voice in decisions directly affecting their right to the highest attainable standard of health under Article 43(1)(a),” Omtatah says, stressing that no details on conditionalities, budgetary implications, or national policy impacts have been disclosed.

Central to his case is the claim that the agreement constitutes a treaty under Article 2(6) of the Constitution and the Treaty Making and Ratification Act, 2012, and therefore required parliamentary approval.

“By signing it without Parliament, the Executive has usurped legislative authority and undermined the sovereignty of the people,” he asserts.

The petition highlights multiple financial red flags. The framework channels funds directly through government institutions, creating “extra-budgetary streams” that evade parliamentary oversight.

It also obligates Kenya to progressively increase domestic health spending by Sh10 billion, Sh20 billion, Sh35 billion, and Sh50 billion annually—binding future governments to potentially unsustainable commitments.

Adding to the concern, the agreement allows the US to reduce its contribution “on a 1:1 basis” if Kenya misses spending targets, a mechanism Omtatah calls “foreign-controlled fiscal discipline,” contrary to Articles 201 and 221.

The senator also raises sovereignty and regulatory issues.

He notes clauses requiring Kenya to accept US Food and Drug Administration approvals as “sufficient” for local use, undermining the Pharmacy and Poisons Board.

The deal grants US authorities broad audit rights over health facilities, supply chains, and financial accounts, and mandates that Kenya notifies the US of epidemics within 24 hours and consult on response measures—blurring the line between cooperation and foreign control over domestic health policy.

Data privacy is another flashpoint. The petition cites provisions granting the US access to sensitive health data from up to five per cent of facilities, including HIV, TB, reproductive health, and genomic information.

Omtatah argues this violates Article 31 of the Constitution and the Data Protection Act, warning that vague oversight by the Data Protection Commissioner is insufficient to safeguard privacy.

The framework also interferes with labour and devolution frameworks, requiring absorption of over 28,000 donor-funded health workers by 2028, prescribing numbers and salaries, and overriding county government authority.

On procurement, the deal imposes transition deadlines and US oversight of Kemsa, overriding statutory procedures and creating unfunded liabilities without parliamentary approval.

Omtatah calls “phoney and deceptive” a key clause—stating the framework “is not an international agreement and does not give rise to rights or obligations under international or domestic law”— arguing it attempts to evade constitutional accountability while creating binding financial and operational commitments.

He seeks several court orders declaring the framework unconstitutional and void, prohibiting implementation or disbursement of funds, compelling publication of the full text, and requiring meaningful public participation for future health-sector agreements. The petition also requests costs against the government and temporary conservatory orders suspending the framework pending determination.

“This case is part of the struggle to implement the Constitution of Kenya, 2010,” Omtatah says, framing it as a defense of constitutional integrity, separation of powers, sovereignty, and public finance law. He warns that failing to halt the framework could inflict “great loss and damage” on Kenyans by implementing obligations without proper legal oversight.

The respondents are Prime Cabinet Secretary Musalia Mudavadi, Health CS Aden Duale, the National Treasury, and the Attorney General, with Katiba Institute listed as an interested party.

The High Court is yet to give directions on hearing the urgent application and the main petition.