Kenyan court orders state to justify Gates Foundation immunity withdrawal

KENYA – The High Court of Kenya has directed the government to provide evidence within 21 days that it has revoked the diplomatic privileges previously granted to the Bill and Melinda Gates Foundation under a contested Host Country Agreement.

This order follows the foundation’s announcement of a mutual agreement with the Ministry of Foreign Affairs to terminate the said agreement. ​

In October 2024, Prime Cabinet Secretary Musalia Mudavadi issued Legal Notice No. 157, conferring a range of diplomatic privileges and immunities to the Gates Foundation’s expatriate staff in Kenya.

This move was intended to facilitate the foundation’s operations within the country. However, the Law Society of Kenya (LSK) challenged the legality and transparency of this decision, leading to a judicial review. ​

On November 25, 2024, the High Court issued conservatory orders suspending the privileges and immunities granted to the foundation.

Justice Bahati Mwamuye’s ruling barred the foundation’s members, staff, and agents from enjoying the immunities under the Privileges and Immunities Act.

The court also instructed the Attorney General and the Prime Cabinet Secretary to preserve all related documentation for further proceedings. ​

Subsequently, the Gates Foundation and the Ministry of Foreign Affairs mutually agreed to withdraw from the Host Country Agreement.

Dr. Paulin Basinga, the foundation’s Africa Director, confirmed this decision, stating that the legal dispute had diverted attention from their core mission.

He emphasized the foundation’s continued commitment to Kenya, expressing a desire to focus on partnerships aimed at fostering health and economic opportunities. ​

Court’s directive and government’s position

In light of these developments, the High Court has mandated that the government provide proof of the withdrawal of the diplomatic privileges within 21 days.

This order underscores the court’s commitment to ensuring transparency and accountability in the revocation process.

The expedited timeline reflects the court’s intent to resolve the matter promptly, ensuring that the foundation’s operations in Kenya proceed without the previously contested immunities.

Prime Cabinet Secretary Musalia Mudavadi has defended the government’s initial decision to grant the Gates Foundation diplomatic privileges.

He described the move as a standard diplomatic practice aimed at facilitating the foundation’s significant contributions to Kenya’s development.

Mudavadi highlighted the foundation’s impactful programs in the country, including the recent opening of its Nairobi Sub-Regional office, and reiterated the government’s commitment to transparency in such matters. ​