In October, the Kenyan government granted the Bill and Melinda Gates Foundation (“BMGF”) special privileges as part of an agreement for cooperation. The privileges were also extended to the employees of the foundation.
On 4 October 2024, the Privileges and Immunities (Bill and Melinda Gates Foundation) Order, 2024, was gazetted in Kenya. The order, made on 19 September under the authority of the Cabinet Secretary for Foreign and Diaspora Affairs, recognised BMGF as a charitable trust and granted BMGF privileges and immunities status in Kenya under the Privileges and Immunities Act.
BMGF was granted privileges similar to those of diplomatic officials and allowed the BMGF “to engage in contracts, legal actions and property transactions within the country” and granted the foundation “tax exemptions and immunity from legal actions related to their official duties,” leaving many Kenyans “with raised eyebrows,” media outlet Kenyans reported.
“The decision to extend diplomatic immunity has sparked widespread debate over accountability. Critics argue that the privileges shield the Foundation from legal scrutiny, setting a dangerous precedent,” Capital News reported.
On 11 November, the Law Society of Kenya filed a legal challenge against the government to have the special privileges recalled arguing that it undermines public interest and constitutional principles.
“In a letter, Kenyan High Court Advocate Dr. Owiso through Dullo & Company Advocates argued that granting privileges and immunities to private foundations, including their officials and expatriate employees, had implications on Kenya’s sovereignty,” The Kenya Times wrote.
On 25 November the High Court temporarily suspended BMGF’s special privileges and immunities status while the court case is ongoing.
In his ruling, Justice Bahati Mwamuye prohibited BMGF and its directors, officers, staff, and agents acting under its authority from enjoying or continuing to enjoy any privileges and immunities under the Privileges and Immunities Act. He warned that failure to heed the court orders will attract legal consequences.
The Law Society of Kenya has until 26 November 2024, to serve the application and petition to all respondents, while responses are due by 10 December 2024.
Justice Mwamuye also directed the respondents to collect and preserve all documentation related to the privileges granted to BMGF, to be included in their court responses.
The case will be mentioned on 5 February 2025, to confirm compliance and set a priority hearing date for the hearing of written submissions, The Eastleigh Voice reported.
Hellbound and Down 