High Court gives state 21 days to prove withdrawal of Gates Foundation’s diplomatic immunity
This comes after the foundation announced it had mutually agreed with the Ministry of Foreign Affairs to terminate the agreement.
The High Court has given the government 21 days to prove it has withdrawn diplomatic privileges granted to The Gates Foundation under a contested Host Country Agreement.
This comes after the foundation announced it had mutually agreed with the Ministry of Foreign Affairs to terminate the agreement.
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In a ruling on Tuesday, the court issued an ultimatum for the government to provide evidence of the withdrawal, following a case filed by the Law Society of Kenya (LSK), which challenged the legality of the special privileges and immunities granted to the foundation.
The court had previously issued conservatory orders suspending the Gazette Notice that conferred these privileges.
During the proceedings, the court was informed that the Gates Foundation and the Ministry of Foreign Affairs had agreed to withdraw from the Host Country Agreement.
The foundation’s Africa Director, Dr. Paulin Basinga, confirmed the decision in a statement.
“The Gates Foundation is committed to building on two decades of partnership with the people and communities of Kenya to advance health and economic opportunity. The legal case surrounding the Host Country Agreement has drawn attention away from our core mission. To maintain focus on our work and partnerships in Kenya, we will continue our branch office operations in the country but transition away from the Host Country Agreement,” Basinga said.
“We are fully committed to Kenya, and we will continue our operations on the ground. Now more than ever, we look forward to focusing on the people and partners who drive this work, collaborating with our grantees to create lasting impact for a healthier, more prosperous Kenya and region.”
Special status
The dispute began when Kenya granted the foundation special status through a legal notice, number 157, issued on October 4, 2024, by Prime Cabinet Secretary Musalia Mudavadi. The legal notice conferred a range of diplomatic privileges and immunities to the foundation’s expatriates. However, the move sparked legal action from the LSK, which questioned its legality and the transparency surrounding the issuance of such privileges.
In a November 25, 2024, ruling, Justice Bahati Mwamuye suspended the special privileges granted to the foundation, barring its members, staff, and agents from continuing to enjoy the immunities. The court also directed the Attorney General and Mudavadi to collect and preserve all related documentation for court proceedings.
“The 1st Respondent and its Directors, Officers, Staff, and Agents acting under its authority [are barred] from enjoying or continuing to enjoy any privileges and immunities under the Privileges and Immunities Act (Chapter 179 of the Laws of Kenya),” read part of the ruling.
Prime Cabinet Secretary Musalia Mudavadi defended the granting of privileges in November 2024, during the official opening of the Gates Foundation’s Nairobi Sub-Regional office. He clarified that the privileges and immunities were meant to facilitate the smooth operation of international organizations in Kenya.
“These privileges and immunities are meant to facilitate the seamless operation of international organizations, not to shield them from accountability,” Mudavadi said, adding that the foundation had met legal requirements and received approval from the Cabinet.
The case has now taken a new turn, with the foundation confirming the withdrawal of the Host Country Agreement and the High Court awaiting proof from the government that this action has been fully executed.
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