Nairobi — The High Court has issued a conservatory order temporarily suspending the privileges and immunities granted to the Bill and Melinda Gates Foundation under Kenya's Privileges and Immunities Act, following a petition by the Law Society of Kenya (LSK).
Justice Bahati Mwamuye of the Milimani High Court ruled that the privileges conferred through Legal Notice No. 157, dated October 4, 2024, will remain suspended pending the hearing and determination of the application filed by the LSK. The legal notice, signed by Foreign and Diaspora Affairs Cabinet Secretary Musalia Mudavadi on September 19, 2024, granted the Foundation exemptions typically reserved for diplomatic missions and international organizations.
The LSK has contested the legal validity of the Gazette Notice, arguing that it undermines public interest and constitutional principles. The case involves the State Law Office, the Ministry of Foreign Affairs, and three other respondents.
Justice Mwamuye also directed the respondents to collect and preserve all documentation related to the privileges granted to the Foundation, to be included in their court responses. Meanwhile, the Foundation and its officers have been barred from exercising any privileges under the contested agreement.
On November 16, Mudavadi defended the decision, citing the Foundation's significant contributions to Kenya's development. "These privileges are not a blank cheque but a carefully calibrated mechanism to enable organizations like the Gates Foundation to deliver impactful programs without bureaucratic hindrance," he stated.
Mudavadi emphasized that the immunities were consistent with international norms and designed to facilitate the Foundation's operations in areas such as poverty alleviation, disease eradication, and inequality reduction.
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.
The legal notice granted the Foundation the ability to enter contracts, acquire and dispose of property, and institute or defend legal proceedings in Kenya. The government maintained that the immunities align with Section 11 of the Privileges and Immunities Act, which allows such agreements for organizations advancing public good.
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The LSK has until November 26, 2024, to serve the application and petition to all respondents, while responses are due by December 10, 2024.
The court's suspension of the privileges marks a significant development in a case that has drawn attention to the intersection of international partnerships and domestic accountability, as Kenya navigates mounting global and local legal challenges.
