Why the court has frozen Sh348 billionTrump-Ruto deal

The government has suffered a major blow in the Sh322 billion health deal with the United States of America.

On Friday, the High Court directed the Ministry of Health and the Attorney General not to share any data with the President Donald Trump-led government. His colleague, Justice Chacha Mwita, also ordered that the remaining commitments be put on ice until the case filed by Busia Senator Okiya Omtatah is heard and determined.

High Court Judge Bahati Mwamuye said that the government should not implement the entire agreement, as Omtatah had raised questions on whether it was a binding commitment and the use of Kenyan taxpayers’ money beyond oversight mechanisms.

In the $2.5 billion framework signed on December 4, the US committed to meet its obligation of up to $1.6 billion (over Sh206 billion) over the next five years to support priority health programmes, including HIV and Aids, TB and malaria. Kenya pledged to increase domestic health expenditures by $850 million.

In his case, Omtatah argued that the deal had circumvented Parliament’s oversight and created extra-budgetary expenditure without approval by the second arm of government.

He said the framework indicated there would be no legal consequences if the US violated the law.

According to him, the non-binding nature meant that it prioritised America’s geopolitical interests over equitable Universal Health Care.

“The rushed signing, bypassing Parliament, usurps legislative authority and undermines the sovereignty of the people who delegated sovereign power to Parliament,” said the Senator, adding that the terms, conditions, obligations, procurement modalities, liabilities and dispute resolution mechanisms of the deal have not been disclosed to the public.

He also claimed that the framework creates direct and indirect public finance obligations, including potential co-financing, tax waivers and recurrent expenditures, which have allegedly not been subjected to parliamentary appropriation.

In response, Attorney General Dorcas Oduor claimed that the agreement between the two countries was that Kenya would share aggregate data and not personal information.

She stated that the exercise includes the removal or masking of personal data, which will solely be used for evaluation, public reporting and planning.

“It is therefore imperative to clarify that, as expressly recognised under the Data Sharing Agreement, the Government of Kenya shall not share any sensitive personal data of its citizens but shall instead share only aggregated data for the purposes of implementing the Cooperation Framework,” court papers filed on Tuesday by Senior State Counsel Thande Kuria read in part.

Thande claimed that the framework was anchored on Kenyan law. He stated that where there is a conflict, Kenyan regulations and laws ought to take precedence.

According to him, HIV and Aids, tuberculosis, malaria and other infectious diseases have become a global security threat which require cross-border management.

“The framework was developed as part of the fulfilment of the State’s duty to take all measures required to ensure the progressive realisation of the right to the highest attainable standard of health, with the ultimate aim being the elimination of HIV, malaria, TB and other emerging infectious diseases, and the strengthening of the Kenyan health system so that it can become more self-reliant,” claimed Thande.

On the other hand, the Principal Secretary of the State Department for Medical Services at the Ministry of Health, Dr Ouma Oluga, alleged that the deal was a government-to-government arrangement and did not require Parliament’s oversight.

He claimed that the government cannot control HIV, tuberculosis and malaria alone.

“Governments, acting individually, could not shoulder these overwhelming costs. As a result of this widespread national incapacity, a concerted effort was launched worldwide to reduce transmission and ensure prompt treatment. This collective international effort led to the formation of multilateral organisations tasked with resource mobilisation for these critical diseases,” he claimed.

According to him, the US government’s shift in funding necessitated Kenya signing the new deal. He claimed that Rwanda, Uganda and Liberia have also signed similar deals.

The former KMPDU Secretary General also alleged that the deal did not commit taxpayers’ money, but was an intention to collaborate in funding.

In a rejoinder, Omtatah claimed that the deal was an attempt to evade scrutiny. He said that although Oluga claimed the framework was not binding, its content had yoked the country to compliance.

He maintained that the deal does not support any of the Kenya Kwanza administration’s programmes. Instead, Kenya signed a vague deal without a prior Data Protection Impact Assessment (DPIA), creating an extra-budgetary stream that undermines the Integrated Financial Management System.