Attorney General Dorcas Oduor has pleaded with the Court of Appeal to lift an order suspending the implementation of a multi-dollar health deal signed between Kenya and the USA government last month.
Ms Oduor said in an urgent application that the non-implementation of the Cooperation Framework would delay provision of much needed health benefits to the public, which benefits considering the nature of health needs may not be recoverable.
In the deal signed on December 4, the USA government commits $2.5 billion in funding Kenya’s health sector over a period of five years.
US Secretary of State Marco Rubio and Kenyan Foreign Cabinet Secretary Musalia Mudavadi sign the US-Kenya health pact as President William Ruto looks on.
Photo credit: PCS
The High Court froze the implementation of the framework stating that public interest lay in suspending the deal pending the determination of the issues raised by Busia senator Okiya Omtatah and Consumer Federation Kenya (Cofek), in cases filed separately.
The Attorney General said the suspension may deny Kenya the necessary external technical and financial support.
She further said the High Court failed to consider the polycentric nature of foreign relations and issued orders that may adversely affect Kenya's national interests in an international environment where countries are competing for resources both financial and technical.
The government stated that the court failed to consider that the orders will immediately negatively impact the country's HIV, TB and malaria response, human resources for health, commodities, service delivery systems and supply chain and logistics management systems.
“That the learned judge of the superior court erred in law by failing to consider the consequences of his decision to the ultimate beneficiaries of the Cooperation Framework, as a result of the learned judge's decision, the fate of adequate funding for treatment of TB and TB/HIV patients hangs in the balance,” the government said in the application.
“The upshot of the orders of the superior court is that the government of Kenya has been prevented from taking any steps to alleviate the immediate healthcare needs of millions of its citizen in the immediate and medium term who were to benefit from the framework, noting the dynamic nature of human health, the benefits to be accrued may never be recovered at all and further the external support is not guaranteed and may be taken to another developing country,” the government added.
In an affidavit, Health PS Dr Ouma Oluga pleaded with the court to hear the case urgently saying the matter was of immense public interest as it affects the government’s ability to leverage on its international relations to provide for and alleviate the health needs of millions of its citizens.
Medical Services Principal Secretary Dr Ouma Oluga.
Photo credit: Dennis Onsongo I Nation Media Group
Dr Oluga added that the suspension of the deal had occasioned disproportionate hardship to the people of Kenya in favour of few vested private interests.
He further said the court made a mistake by failing to appreciate that foreign relations is within the constitutional purview of the Executive whose actions enjoy the presumption of regularity and constitutionality.
“That the learned judge failed to consider the polycentric nature of foreign relations in arriving at his decision thereby issuing orders that may adversely affect Kenya's strategic national interests in a competitive international environment,” the PS said.
Mr Omtatah opposed the application stating that the orders issued by the High Court are purely conservatory and preservative in nature.
The Busia senator said the orders were issued to safeguard the substratum of the constitutional petition pending its hearing and determination.
“They do not determine rights, do not finally pronounce on the constitutionality of the impugned Health Cooperation Framework, and do not prevent the applicants from defending the petition on the merits.
Mr Omtatah added that the assertions made by the government are broad, emotive with no cogent, empirical evidence to demonstrate that the conservatory orders halt existing health services or funding streams.
Busia Senator Okiya Omtatah.
Photo credit: Dennis Onsongo | Nation Media Group
According to Mr Omtatah, if the intended appeal succeeds, the Framework can be implemented thereafter and the no right, asset, or legal position of the government will have been extinguished by the mere preservation of the status quo.
“Conversely and crucially, the balance of convenience and risk of irreparable harm tilt decisively against granting a stay. If a stay is granted and the Framework is implemented, and the High Court later finds it unconstitutional, the harm will be truly irreversible and irremediable,” he said.
Mr Omtatah said unlawful financial commitments may have been incurred and public funds may be irrevocably committed without parliamentary approval and sensitive Kenyan health data may be transferred and processed in ways that cannot be undone, if the order is lifted and the court later finds it unconstitutional.
Mr Omtatah and Cofek challenged the deal over threats of breach of data privacy and that the signing was done without parliamentary approval.
