Court halts immunity granted to Bill and Melinda Gates Foundation

The Bill and Melinda Gates Foundation had enjoyed legal protections and benefits typically afforded to recognised non-governmental organisations. 

The Bill and Melinda Gates Foundation has suffered a major setback after the High Court on Monday suspended its privileges and immunities under the Privileges and Immunities Act, which had been granted by the government.

The foundation, renowned for its global initiatives in health, education, and poverty alleviation, had enjoyed legal protections and benefits typically afforded to recognised non-governmental organisations. 

Justice Bahati Mwamuye of the Milimani High Court ruled that the privileges conferred through Legal Notice No. 157, dated October 4, 2024, would remain suspended pending the hearing and determination of the case filed by the Law Society of Kenya (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.

"Pending the inter partes hearing and determination of the application, a conservatory order is hereby issued suspending the Privileges and Immunities (Bill and Melinda Gates Foundation) Order, 2024, as notified in Legal Notice No. 157," Justice Mwamuye ordered.

Additionally, Justice Mwamuye prohibited the foundation, its directors, officers, staff, and agents from continuing to enjoy any privileges and immunities under the Privileges and Immunities Act.

The judge also directed the Attorney General and Mudavadi to collect and preserve all documentation related to the privileges granted to the foundation, to be included in their court responses. 

Both the Ministry of Foreign Affairs and the foundation were ordered to file their responses by December 10, 2024.

The court directives stem from a petition filed by LSK, which challenged the nature of the privileges granted to the foundation.

The society argued that the foundation’s receipt of government immunity places it beyond the reach of Kenya's laws, undermining the legal rights of citizens and local organisations.

LSK, through Chief Executive Officer Florence Muturi, accused the foundation of using its privileges to avoid scrutiny of its activities, especially its financial dealings and influence on public policy.

Lawyers contend that the foundation’s vast financial power and influence in critical sectors like health, education, and infrastructure could be exploited without sufficient oversight.

The LSK further questioned the legality of the Gazette Notice, arguing that it contradicts public interest and constitutional principles.

"It is unfathomable that a private entity with no known national mandate would be granted consular status in Kenya, enabling it to operate with immunity under the Privileges and Immunities Act," Muturi told the court.

On November 16, 2024, CS Mudavadi defended the decision, citing the foundation’s significant contributions to Kenya’s development.

“These privileges are not a blank check but a carefully calibrated mechanism to enable organisations like the Gates Foundation to deliver impactful programmes without bureaucratic hindrance,” he stated while emphasising that the immunities were in line with international norms.

However, LSK rejected this argument, asserting that the foundation, as a private entity, is not a party to the Vienna Convention and, therefore, cannot be granted immunity under the Privileges and Immunities Act.

“The Vienna Convention on the Law of Treaties (1969) only applies to treaties between States. The term treaty refers to international agreements between sovereign States, not private organisations,” LSK argued.

The petitioners are also concerned that the immunities granted to the foundation posed a direct threat to national security. 

“The privileges conferred under the Privileges and Immunities Act create an organisation immune to national security operations,” LSK stated in its petition.

Moreover, the society warned that granting the foundation such status could set a dangerous precedent, raising concerns that other organisations might be granted similar privileges.

The case will be mentioned on February 5, 2025, for pre-trial directions.