Kenya’s High Court has suspended the implementation of the country’s Memorandum of Understanding (MOU) with the United States following two separate court challenges by the Consumer Federation of Kenya (COFEK) and local Senator Okiya Omtatah. COFEK argued that the agreement violates Kenya’s Data Protection Act, Digital Health Act, Health Act, and other regulations designed to protect citizens’ health data. Meanwhile, Omtatah challenged the agreement on the grounds that it undermines public participation, bypasses parliamentary oversight, and could impose significant financial obligations on Kenya.
The five-year MOU, signed in Washington, commits the US to providing up to $1.6 billion between 2026 and 2030 for HIV/AIDS, tuberculosis, malaria prevention, maternal and child health, and outbreak surveillance and response. Kenya has pledged to increase domestic health spending by $850 million over the five years, with annual increments from $77.5 million in 2026 to $387.7 million in 2030. A portion of this expenditure is earmarked for priority areas identified by the US, including hiring additional epidemiologists and lab technicians. The court has set deadlines for COFEK to lodge court papers by 17 December and for the government to respond by 16 January, with the case returning on 12 February.
Omtatah emphasized the lack of Senate involvement in developing the agreement, warning that the MOU has major implications for Kenya’s finances and commits the government to hiring thousands of employees to work under the program, who would later be transferred to the government after the agreement expires in 2030. An earlier draft of the MOU gave the US unfettered access to Kenya’s health data, but public outcry led to revisions, ensuring that data sharing complies with Kenyan law through the US-Kenya Data Sharing Agreement appended to the main MOU.
Civil society groups across Africa have also voiced concerns, urging heads of state to ensure “equity and sovereignty” in their bilateral health agreements with the US. Last week, the US signed similar MOUs with Kenya, Rwanda, Liberia, Uganda, and Lesotho as part of the revival of PEPFAR, the US President’s Emergency Plan for AIDS Relief. These agreements require African countries to provide the US with physical specimens and genetic data of pathogens with epidemic potential within five days of detection, initially for 25 years, but later shortened to seven to ten years. Critics argue that these MOUs risk undermining the global pathogen access and benefit-sharing framework currently being negotiated at the World Health Organization (WHO).
Nearly 50 civil society organizations highlighted that the agreements could entrench unequal power dynamics and compromise national sovereignty. Aggrey Aluso, Executive Director of the Resilience Action Network Africa (RANA), stressed that African countries must negotiate terms grounded in national law, regional strategies, and public accountability. Uganda’s MOU, for instance, ties implementation plans directly to the national health budget, raising concerns about sovereignty. Peter Maybarduk of Public Citizen noted that the agreements could erode the collective negotiating power African nations established during COVID-19 vaccine inequities.
WHO Director-General Dr. Tedros Adhanom Ghebreyesus clarified that these bilateral MOUs are between sovereign nations and do not replace the global pathogen-sharing agreement. He emphasized the importance of the multilateral system, which involves all 194 WHO member states, ensuring global solidarity in pathogen access and outbreak preparedness. The agreements, he noted, cover a maximum of 50 countries and should complement, not undermine, broader international frameworks for global health security.
