Why LSK has sued AG, Health Ministry over Sh209b data deal with US

Attorney General Dorcas Oduor has defended the Kenya-US health deal. [File, Standard] 

The Law Society of Kenya (LSK) has sued the government, challenging the Sh209 billion between Kenya and the United States.

LSK, in its case, before the High Court, argues that the health co-operation framework and a data-sharing agreement seek to bypass the Constitution, as the US will, for seven years, have unfettered access to Kenya’s health data, store and use it without clear remedy to data subjects.

LSK lawyer, Kevin Omwanza said, already, there are complaints by Kenyans on their right to privacy and right to self-determination. He asserted that although the deal touched the lives of any Kenyan who visits a hospital, the framework signed by Prime Cabinet Secretary Musalia Mudavadi, on behalf of Kenya, was not subjected to public participation or adopted by Parliament as required by the law.

“While transparency and public participation anchor the process of treaty-making, legislation, and public-facing policies, the framework was unfortunately conceived and bred in the dark, though it has far-reaching ramifications on the economy, privacy, technology, health sovereignty and security in Kenya,” he argued.

The society’s CEO Florence Muturi said a close look at the framework reveals that Kenya got a raw deal as the data collected is meant to enrich America’s data banks for a token. “A careful review of the entire framework and specialised agreements in conjunction with a reading of the expert opinion on the matter, reveal the possibility that the framework, while disguised as generally beneficent, is actually a front for the foundations of an extractive infrastructure that will benefit counterparty’s commercial interests in terms of a perpetual software license and cloud storage fees, and technological ambitions in terms of making available country’s sovereign health data,” said Muturi.

According to her, the long and short of the five co-operation areas was that Kenya had given USA a sit too close to her health system pipes and data flows. She claimed the data required by US is simply meant to oil USA’s big pharma and train the American-made Artificial Intelligence.

However, she said, there is no reciprocity by the USA, adding that Kenyans should be worried that the deal was signed in the backdrop of President Donald Trump’s mantra ‘America first.’

“In light of the America first framing of the contemporary US global health policy, the petitioner is concerned that a framework which deeply embeds the US strategic, digital and data interests into Kenya’s health systems may , at moments of tension, place those external interests in competition with health needs and policy choices,” she said.

LSK’s case is a third challenge against the deal. The first case was filed by Nakuru based surgeon Magare Gikenyi, while the second one was filed by Busia Senator Okiya Omtatah. In his case, Omtatah argued that the deal had circumvented Parliament’s oversight and created extra-budget expenditure without the approval by the second arm of government.

He says the framework indicated there would be no legal consequences if the US violated the law. According to him, the non-binding nature meant that it prioritised America’s geopolitical interests over equitable Universal Health Care.

In response the Attorney General Dorcas Oduor claimed the agreement was that Kenya would share aggregate data and not personal information. She stated that the exercise includes the removal or hiding of personal data, which will solely be used for evaluation, public reporting and planning.

“It is therefore imperative to clarify that, as expressly recognised under the Data Sharing Agreement, the Government of Kenya shall not share any sensitive personal data of its citizens but shall instead share only aggregated data for the purposes of implementing the framework,” court papers filed by Senior State Counsel Thande Kuria reads.