In a turn of events, last week, the Bill and Melinda Gates Foundation (BMGF) and Kenya’s Ministry of Foreign Affairs mutually agreed to withdraw from the Host Country Agreement. The Foundation’s African Director, Paulin Basinga, cited a legal case that diverted attention from the Foundation’s core mission as the reason for the decision.

The Gates Foundation, which focuses on fighting poverty, disease, and inequality in more than 140 countries worldwide, emphasised that it remains committed to its work and partnerships in Kenya. Operations will continue through its branch office in the country as it transitions away from the formal agreement.

A Host Country Agreement (HCA) is a formal legal instrument between a host country (such as Kenya)  and an international organisation (such as BGMF). It establishes the terms and conditions under which the organisation operates within the host nation’s territory.

This agreement typically outlines the legal status of the organisation, the privileges and immunities granted to it and its staff, and other operational provisions. HCAs are formalised through legal notices under the Privileges and Immunities Act (Cap. 179). These notices grant specific privileges and immunities to the organisation, facilitating its operations within the country. In this instance, Legal Notice No. 157 of 2024, The Privileges and Immunities (Bill and Melinda Gates Foundation) Order, established the legal framework for cooperation between the Government of Kenya and the Gates Foundation.

However, the Law Society of Kenya (LSK) challenged the order, questioning the legality and transparency of the notice. LSK successfully obtained a conservatory order suspending the application of the privileges and immunities granted to the Bill and Melinda Gates Foundation. This controversy surrounding the agreement and the legal case eventually led to the mutual decision to withdraw. The High Court has given the government 21 days to demonstrate that it has formally withdrawn the privileges it had accorded the Foundation.

In Detail: Kenya–Gates Foundation Cooperation Agreement

Under the legal notice, the Cooperation Agreement between the Government of Kenya and the BMGF formally recognised the Foundation as an international organisation entitled to certain privileges and immunities under Section 11 of the Privileges and Immunities Act (PIA).

The agreement granted the Foundation the legal capacity to enter into contracts, sue and be sued, and acquire, lease, or dispose of property within Kenya following local laws. It also provided the Foundation and its personnel with a wide range of immunities and exemptions to facilitate their operations in the country.

Officials and staff of the Foundation were granted immunity from legal proceedings for actions carried out in the course of their official duties. They were also exempt from national service obligations. Additionally, they would have benefitted from exemptions related to immigration restrictions and alien registration for themselves, their spouses, and dependent relatives.

The Foundation’s staff and their families would have been entitled to repatriation assistance equivalent to that offered to diplomatic personnel. Moreover, officers and staff taking up their first posting in Kenya would have been exempt from tax or duty on the importation of personal and household effects.

These provisions were intended to facilitate the smooth functioning of the Foundation’s operations in Kenya.

At face value, the immunities and privileges granted to the Foundation appeared excessive, prompting the LSK to move to court following the publication of the legal notice.

Cost-Benefit Analysis of Host County Agreements

Host Country Agreements with international organisations are not new in Kenya and the attendant privileges and immunities are also standard. The government has entered into such agreements with several organisations, including the International Institute for Democracy and Electoral Assistance (IDEA), Save the Children International and Shelter Afrique Development Bank.

Other organisations operating under similar arrangements include Oxfam International, the Norwegian Refugee Council, and Population Services International (PSI). These institutions play critical roles in development and humanitarian sectors. For instance, the Norwegian Refugee Council and Save the Children International are instrumental in crisis response, refugee resettlement, and child protection efforts.

PSI works to enhance healthcare access, promote reproductive health, and prevent disease. Meanwhile, Oxfam International is widely recognised for its advocacy in fighting poverty and promoting economic justice.

While the controversy surrounding the Gates Foundation may be linked to issues surrounding Bill Gates, who is set to stand trial in the Netherlands over alleged misinformation regarding the COVID-19 vaccine, the cost-benefit analysis of granting privileges and immunities still favours Kenya.

In an era where development aid to lower-middle-income countries is dwindling, especially in the face of USAID funding cuts, the BMGF’s presence in Kenya would offer strategic and developmental advantages. A formal agreement would provide the Foundation with the trust and commitment needed to establish long-term roots in the country.

Privileges such as tax exemptions and duty-free imports would allow more funds to be allocated directly to programmatic work rather than administrative costs. The BMGF is a renowned leader in public health interventions, Kenya stands to benefit from expanded access to life-saving treatments, especially for diseases like malaria and HIV/AIDS.

Moreover, the immunities and privileges could lead to indirect job creation through sectors such as consulting, logistics, and services industries, providing further economic growth.

Conclusion

While the privileges and immunities granted to the BMGF may seem like a loss of regulatory control or financial concessions (e.g., tax revenue), they offer strategic trade-offs. By offering such concessions, Kenya would gain increased foreign investment in its development.