Photo courtesy Popular Mechanic

The government has withdrawn the Bill and Melinda Gates Foundation Host Country Agreement. The decision, which was reportedly made jointly today between the Foundation and the Kenyan government comes amid an ongoing legal dispute that has raised questions about the extent of such privileges for private entities operating within the country.​

The now-withdrawn agreement had previously granted the Foundation a special status, including immunity from legal prosecution under Kenyan law— a matter that had sparked legal and public scrutiny.

In a statement, Paulin Basinga, the Foundation’s Africa Director, emphasized that despite the withdrawal, the Foundation remains committed to its work in Kenya. He affirmed that the Foundation will continue operating its branch offices and programs to support the well-being of Kenyan citizens.

Background

In September 2024, the Kenyan government, through Legal Notice No. 157, conferred special privileges and immunities upon the Gates Foundation under the Privileges and Immunities Act. These privileges included the capacity to enter into contracts, manage property, and engage in legal proceedings within Kenya. Additionally, the Foundation’s non-Kenyan staff were granted legal immunities and tax exemptions related to their official duties.

However, this move was severely criticized The Law Society of Kenya (LSK) filed a petition challenging the government’s decision, arguing that granting such extensive immunities to a private entity could undermine national sovereignty and legal accountability.

LSK’s CEO, Florence Muturi, expressed concerns over the potential for the Foundation to operate beyond the reach of Kenyan laws, particularly regarding financial dealings and influence on public policy.

Court’s Ruling

On November 25, 2024, Justice Bahati Mwamuye of the Milimani High Court issued a conservatory order suspending the privileges and immunities granted to the Gates Foundation. The court’s decision was based on the need to assess the legality and implications of extending such privileges to a private organization. The order prohibited the Foundation and its officials from enjoying any benefits under the Privileges and Immunities Act until the matter is resolved. ​

Furthermore, the court directed relevant government bodies to compile and preserve all documentation related to the privileges granted to the Foundation, ensuring transparency and accountability in the ongoing legal proceedings.

Government’s Position

Prime Cabinet Secretary Musalia Mudavadi defended the government’s decision to grant the privileges, emphasizing the Foundation’s significant contributions to Kenya’s development, particularly in health and education sectors.

Mudavadi stated that the immunities were intended to facilitate the Foundation’s operations without bureaucratic hindrances and were in line with international norms for organizations engaged in philanthropic work.

Implications

This case has sparked a broader debate about the balance between attracting international philanthropic support and maintaining national legal sovereignty. While foreign aid and expertise are crucial for addressing various challenges, concerns about accountability and oversight remain paramount.​