Why Duale, Mudavadi and AG Oduor have been sued over Kenya-US health deal

Health Cabinet Secretary Aden Duale (left) and Prime Cabinet Secretary Musalia Mudavadi (right) during the African Union Summit in Addis Ababa, Ethiopia. [File, Standard]

The US may not have a reason to smile yet days after signing a health deal with Kenya after a court case was filed citing a breach of patients’ right to privacy and consent.

President William Ruto signed a health co-operation framework worth Sh207 billion with America last week.

However, Consumers Federation of Kenya (Cofek) moved to court on Tuesday, arguing that the deal is a violation of the Constitution and health law, and was allegedly done in a secret manner.

“Despite its significant implications, the framework was not subjected to the constitutional principles of good governance under Article 10. This omission occurred even though the agreement involves cross-border transfer of sensitive health information and touches on national-security interests.

“By failing to adhere to the values of accountability, transparency, public participation, and integrity in governance, the Respondents acted contrary to Article 10. The process was therefore opaque and constitutionally improper,” the lobby claimed.

Cofek’s lawyer Tali Israel Tali told High Court Judge Lawrence Mugambi that there was no public participation or involvement of stakeholders by the government before the President signed the deal.

He asserted that health data on HIV/AIDS, TB, malaria, maternal health and disease surveillance is critical to the country’s national security and too sensitive to be handed to a foreign country for a fee.

“Once Kenya’s medical and epidemiological data is transferred abroad, the harm becomes permanent and irreversible. Neither this Honourable Court nor Kenyan regulators will have the power to recall, restrict or oversee the foreign use of such data. This exposes citizens to lasting privacy violations, stigma and potential misuse of their information. The irreversible nature of the harm elevates the urgency of the matter,” argued Tali.

The court heard that the Data Protection Act prohibits data holders from sharing or selling data without the subject’s consent.

Tali said the government’s decision ought to be subjected to scrutiny as it is putting Kenyans in a harms way. He said that if the deal is implemented, there will be no way of compensating reversing the alleged damage.

Cofek’s secretary general Stephen Mutoro in his supporting affidavit said the framework ought to have been subjected to public participation and Parliamentary oversight.

According to him, the health pact was a decision made by the Executive only, adding that it is allegedly illegal. “I verily believe to be true, that the execution of the Framework without legislative scrutiny, public participation, or regulatory compliance renders the entire process constitutionally defective and administratively unlawful.

“Such unilateral Executive action offends principles of transparency, accountability and public involvement,” claimed Mutoro.

Cofek has sued Health Cabinet Secretary Aden Duale, Prime Cabinet Secretary Musalia Mudavadi, Digital Health Agency, Office of Data Protection Commissioner, National Assembly and Senate, and Attorney General Dorcas Oduor.

The deal had raised uproar, with Kenyans demanding disclosure.