Suspect health deal: Why Ruto-Trump data agreement raises eyebrows

 

President William Ruto witnesses the historic signing of a peace deal between President Donald Trump, President Félix Tshisekedi of the DRC and President Paul Kagame of Rwanda at the Donald J. Trump United States Institute of Peace in Washington, D.C., the United States.[PCS]

Legal experts have warned that Kenya’s recent health cooperation agreement with the United States is stirring controversy for granting unprecedented access to Kenyan health data to US government agencies and American companies.

President William Ruto and Health Cabinet Secretary Aden Duale, who presided over the deal signing, described it as a landmark for boosting investment and fighting diseases, but a close analysis reveals that ordinary Kenyans may be paying the highest price in privacy and national sovereignty.

The deal, signed on Friday in Washington, makes Kenya the first country to join a series of US sponsored global health agreements designed to “make America safer, stronger and more prosperous”.

The skewed deal brings $1.6 billion (Sh200 billion) commitments to Kenya in funding and technology over five years. But the US government will have unfiltered access to personal medical records, genetic information, lab samples, insurance details, and data from digital health platforms and devices for 25 years.

For the US drug companies, this data offers strategic advantages as it gives its medical companies access to large and diverse populations for clinical research and development of vaccines, medicines and diagnostics.

President Ruto, beamed before cameras saying: “On behalf of the government and people of Kenya, I express profound gratitude to the United States, to President Donald Trump, and to you, Marco {Foreign Secretary Marco Rubio), for the commitment of US dollars $1.6 billion to Kenya over the next five years,” said Ruto.

Medical Services Principal Secretary Ouma Oluga also praised the deal, and welcomed the government to government partnership.

“The government is already expanding essential health services to all Kenyans and increasing domestic health financing through the Social Health Authority. Kenya and United States commitments are thus fully aligned and mutually beneficial,” said Dr Oluga, without commenting on the data breach that the framework would occasion.

But even as Kenyan and US government officials wax lyrical about how important the deal is for Kenya, legal and health experts sound a warning about the imbalanced agreement.

Lawyer Peter Wena says Kenya’s Data Protection Act of 2019 clearly categorises health information including genetic and biometric data as “sensitive personal data” requiring the highest protection.

“The law mandates lawful, transparent processing with informed consent and prohibits transferring personal data abroad unless there are adequate safeguards.This state-to-state agreement risks bypassing these protections because individual Kenyans cannot realistically consent to high-level deals negotiated without public input,” says Wena.

Speaking to The Standard, Susan Burns, the Chargé d’Affaires of the United States Embassy in Nairobi, said the US means well for Kenya and there’s no individual identifying of the data as a part of the agreement.

“Unfortunately, there’s some misconceptions and misinformation about a data sharing agreement. We just wanted to clarify that we’ve had existing data agreements with the government of Kenya,” said Burns.

She sought to assure Kenyans that new agreement will continue to abide by the privacy laws under the Kenyan government and its legal system, and so the two sides were just putting on paper similar policies to those that were already in existence.

She added that any data sharing going forward will be aggregated data, which means it will not be personally identifiable. It will also be aggregate data so that information on for example the 1.3 million of people who are on anti-retroviral treatment can be used.

There are also serious implications for privacy rights guaranteed under Article 31 of Kenya’s Constitution, which protects individuals from un-authorised exposure of their private health information.

Burns revealed the Ruto government also committed $850 million in expenditures over five years, bringing the total commitment by both sides to about $2.5 billion, which, she says, is a significant investment in the health.

Legal experts however argue that the law states that personal data must be processed lawfully, fairly and transparently and collected for specific purposes and not transferred outside Kenya.

“Data collected for patient care or public health might later be used for unrelated purposes such as commercial product development, migration control or security screening, contrary to the requirement that data not be processed in ways incompatible with the original purpose,” explains Wena.

Health systems expert Aggrey Aluso also says the deal is skewed in favour of America and if done better, can be good for Kenya.

“It’s basically what used to be submitted under Pepfar, which are HIV, TB and malaria. I think the new component, which is good, is the emphasis on surveillance and detection, which is something that I’ve been missing in our system,” said Aluso. 

He reminded Kenyans that the US has been in charge of their health data and between January and  February, some HIV and TB data in their possession got lost.

He thinks Kenyan leadership should be responsible for ceding sovereign data to an external partner: “That information that they want is very important information, it’s a resource actually, because it’s what the pharmaceutical industries need to start innovating any medication.”

Aluso added that if an agreement says you give out data to a third party, the beneficiary can use it for their own good, and there’s no guarantee you will benefit.

He also thinks the overall contingent issues are the lack of participation of concerned citizens in framing the deal because it’s a government-to-government negotiation yet it touches on many lives with far-reaching implications on public health.

A legal advisory authored by data governance expert Dr Mugambi Laibuta warns the draft Data Sharing Agreement (DSA) is unconstitutional and unlawful.

“The advisory highlights its failure to guarantee data anonymisation, lack of consent mechanisms, and unrestricted access that pose great risks to privacy and Kenya’s sovereignty,” argues Laibuta  who further criticises the DSA for imposing US federal law over Kenya’s Constitution, threatening national control over data and digital infrastructure.

Laibuta also notes that health data sharing arrangements often deepen global inequalities, because Kenya generates valuable data but foreign partners reap most scientific and commercial benefits.

He added that the deal entrenches Kenya as a data source rather than an equal partner in global health innovation, undermining efforts to develop local pharmaceutical, biotech, and AI capacities.

“There are also fears about the agreement’s long duration—up to 25 years—which could enable uses of Kenyan health data never anticipated or ethically approved today, such as genetic analysis linked to behaviour or security profiling,” says Laibuta 

He further notes that the government should renegotiate the framework to ensure it respects data protection laws, upholds privacy rights, and safeguards national sovereignty.

There should also be limited access to aggregated, periodic reports rather than real-time data, inserting strict legal safeguards as per the Kenya Data Protection Act, and ensuring the agreement is governed by Kenyan law, not US statutes.

Kenya has long been a preferred site for American health programmes, especially targeting HIV, malaria, and new infections. For decades, US bodies like the Centers for Disease Control (CDC), USAID, and National Institutes of Health (NIH) have supported disease surveillance and electronic medical records in Kenyan hospitals. 

According to US embassy’s Brian Rettman, Kenya Pepfar coordinator, the data agreement is about reporting back to congress about the successes.

“So that we can identify and make sure that we have more money coming from them each year. And so it’s really about those successes, and again, it’s not about identifiable information. It’s really about what the aggregate data is  and how we’re working with the government  to have those successes,” said Rettman

He says the framework of cooperation goes into place on April 1 and until then, they will be working on the implementation phase, and then move into the next phase and will be sharing as much information as possible.