The Gates Foundation, formerly known as the Bill and Melinda Gates Foundation, on Tuesday, April 8, announced its withdrawal from its host country agreement with Kenya that had granted it diplomatic immunity.
Through a statement from Dr Paulin Basinga, its Africa Director, the Foundation noted the ongoing court case as a major reason behind the mutual decision between the charitable organisation and the Kenyan government to end the agreement.
However, Basinga maintained that the organisation’s activities in their Nairobi branch would proceed as normal, adding that the court was aware of the latest happenings.
“The legal case surrounding the Host Country Agreement has drawn attention away from our core mission. To maintain focus on our work and partnerships in Kenya, we will continue our branch office operations in the country but transition away from the Host Country Agreement,” the statement read.
In October 2024, the Kenyan government formalised a Host Country Agreement with the Bill and Melinda Gates Foundation (BMGF), granting the foundation specific legal capacities and privileges to facilitate its operations in Kenya.
The agreement allowed the Foundation to enter into contracts, initiate and defend legal proceedings, and manage property within Kenya, aligning with the nation's laws.
In addition, the Foundation would enjoy special privileges such as immunity from legal action for acts performed in its official capacity, exemption from direct taxation on salaries, exemption from national service obligations, and immunity from immigration restrictions for the Foundation’s directors, officials, and staff.
However, the move by the government attracted backlash, with the Law Society of Kenya filing a petition at the courts challenging the move.
LSK questioned the move to grant diplomatic immunity to a private philanthropic foundation, arguing that diplomatic immunity for a private foreign entity could set a dangerous precedent.
However, the government defended the move, positing that the Foundation had played a critical role in supporting Kenya’s development.
Even so, the court sided with LSK and issued conservatory orders temporarily suspending the privileges. Justice Bahati Mwamuye, in his ruling, prohibited the Foundation and its directors, officers, staff, and agents acting under its authority from enjoying or continuing to enjoy any privileges and immunities under the Privileges and Immunities Act.
The legal tussle continued with the court today issuing a 21-day ultimatum to the government to provide evidence of withdrawal of diplomatic immunity offered to the Foundation.
