Kenya Raises Legal Concerns Over US Health Data Sharing Agreement, Signaling Wider African Dilemma
NAIROBI – A legal opinion from Kenyan advocate and data governance expert Dr. Mugambi Laibuta warns that a draft Memorandum of Understanding (MOU) with the United States concerning health data sharing violates Kenya’s Constitution and multiple national laws. The analysis, submitted to the kenyan government, casts a shadow over similar agreements being pursued with other African nations as part of global pathogen-sharing initiatives.
The MOU, intended to facilitate access to health data for US entities, grants the US government “extensive and intrusive privileges, including real-time access to Kenya’s national health data systems,” according to Laibuta’s assessment. He argues this access “may directly expose sensitive personal health data” in breach of Article 31(c) of the Kenyan Constitution.
Beyond constitutional concerns,the agreement also clashes with Kenya’s Data Protection Act,health Act,and Digital Health Act. Laibuta contends the MOU heightens national cybersecurity vulnerabilities,risks data manipulation,and disregards Kenyan laws mandating confidentiality and consent for health record disclosure. Specifically, the Health Act “declares all health records confidential” and “restricts disclosure to third parties except where consent has been obtained or where a specific legal mandate exists.” The Digital Health Act “prohibits unregulated or unauthorised access to health data.”
A key point of contention is a clause stipulating the MOU is “construed in accordance with US federal law,” effectively prioritizing US legal frameworks over Kenyan sovereignty. Laibuta asserts this is “unconstitutional and cannot validly govern activities taking place within Kenya.”
The legal challenges facing Kenya may be mirrored across the continent. Numerous countries are currently negotiating similar MOUs with the US, with anticipated signing dates by the end of this year to enable grant disbursements starting in April 2026. these agreements are linked to broader international efforts to improve pandemic preparedness and pathogen sharing, but raise concerns about data security, national sovereignty, and equitable access to benefits.
