High Court halts immunity, privileges granted to Bill and Melinda Gates Foundation

The High Court has temporarily suspended the Bill and Melinda Gates Foundation's special privileges and immunities status, pending the outcome of a legal challenge filed by the Law Society of Kenya (LSK).

In a ruling issued by Justice Bahati Mwamuye, the court granted a conservatory order suspending the Privileges and Immunities (Bill and Melinda Gates Foundation) Order, 2024, which had been gazetted on October 4, 2024.

The order, made under the authority of the Cabinet Secretary for Foreign and Diaspora Affairs, granted the foundation certain privileges and immunities under the Privileges and Immunities Act.

“Pending the inter partes hearing and determination of the Application dated 22/11/2024, a conservatory order be and is hereby issued suspending the Privileges and Immunities (Bill and Melinda Gates Foundation) Order, 2024 given and notified as Legal Notice No. 157 made on 19/09/2024 under the hand of the Cabinet Secretary for Foreign and Diaspora Affairs, and published in the Special Issue of the Kenya Gazette Supplement No. 181 dated 04/10/2024 at 2941,” Justice Mwamuye ruled.

Additionally, the court prohibited the foundation, its directors, officers, staff, and agents from enjoying any of the privileges or immunities granted under the order.

“Pending the inter partes hearing and determination of the Application dated 22/11/2024, a conservatory order be and is hereby issued prohibiting the 1st Respondent 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 [Chapter 179 of the Laws of Kenya] or the Cooperation Agreement between the 1st Respondent and the Government of the Republic of Kenya referred to in Paragraph 2 of the impugned Order," reads the order.

The respondents, including the government and the foundation, have been given until December 10, 2024, to submit their responses.

The case will be mentioned on February 5, 2025, to confirm compliance and set a priority hearing date for the hearing of written submissions related to the case.

LSK petition

The move to grant the foundation immunity in Kenya has been contested by the Law Society of Kenya, which argues that the decision should be declared null and void.

The foundation, which works globally to fight poverty, disease, and inequality, was granted privileges by the government as part of an agreement for cooperation.

The gazette notice, dated October 4, 2024, described the foundation as a charitable trust that has entered into a cooperation agreement with the Kenyan government, making it eligible for the privileges outlined under the Privileges and Immunities Act.

Prime Cabinet Secretary Musalia Mudavadi had defended the government’s decision to grant the Bill and Melinda Gates Foundation immunity in Kenya, describing it as a routine diplomatic practice.

Mudavadi, while responding to the public outcry surrounding the decision, explained that the privileges granted to the foundation were in line with standard diplomatic protocols.

He highlighted the foundation’s growing presence in Kenya, noting the recent opening of its Nairobi Sub-Regional office and its impactful programs in the country.

“We take the concerns of our citizens seriously, and I want to clarify the reasoning behind our decisions. Diplomatic privileges and immunities are tools, not trophies. They are meant to help organizations that contribute to the public good operate smoothly, in line with the principles outlined in the Vienna Convention,” Mudavadi said.

The Cabinet Secretary further stated that the foundation had complied with all legal requirements and adhered to the terms of the host country agreement. He assured that the government had put safeguards in place to ensure the privileges and immunities were not misused.