Public Health, Public Assets, Public Accountability Health Cooperation Rooted in Rights, Sovereignty, and Public Trust

I. Introduction: The Right to Health and the Importance of State Responsibility

The Constitution of Kenya guarantees every person the right to the highest attainable standard of health, including the right to health care services and reproductive health care, under Article 43(1)(a)[1]. Article 43(2)[2] further provides that a person shall not be denied emergency medical care. This right imposes binding, justiciable, and non-delegable obligations on both the national and county governments to observe respect, protect, promote, and fulfil access to health care services for all persons in Kenya.

Health is a shared function under the Fourth Schedule of the Constitution of Kenya, 2010. Regardless of institutional arrangements, donor partnerships, or bilateral agreements, cooperation frameworks, the ultimate responsibility for health outcomes rests with the State. International cooperation should not dilute constitutional obligations; the Government of Kenya remains accountable.

For more than two decades, Kenya’s health system has depended significantly on external donor financing, especially for HIV, tuberculosis, malaria, surveillance systems, laboratories, commodities, and support for the health workforce. While this assistance has been lifesaving, the over-reliance on donor funding must be addressed. The current global context, characterised by declining aid, geopolitical shifts, polycrises and changing donor priorities, highlights the urgent need for prioritising domestic funding, sustainability, and accountability in the health sector.

True health system strengthening now requires:

• Clear prioritisation and allocation of domestic resources.
• Deliberate efforts to reduce leakage, wastage, and corruption.
• Strong governance of data, specimens, and public assets;
• Robust oversight mechanisms that protect the public interest.

This advisory addresses the implementation of the Kenya – United States Cooperation Framework on Health and the related Data Sharing Agreement, signed on December 4, 2025, within the context of constitutional, fiscal and governance considerations.

II. Purpose and Constitutional Basis of this Advisory

We, the undersigned organisations and associations, being representative of health and human rights, civil society and non-governmental organisations, community-based organisations, professional bodies, and experts in economic, digital health and governance, acknowledge the recently signed Kenya-United States Cooperation Framework on Health and related Data Sharing Agreement, as well as the public concern it has generated.

We write pursuant to our constitutional mandate under Articles 3, 10, 31, 35 and 43 (1) (a)and (2) of the Constitution on the responsibility to defend and protect the Constitution, the right to participate in matters concerning us and to access public information, respectively.

As individual stakeholders, we have engaged with the government to advocate for a rights-based approach to implementing the agreement. Considering this, we are issuing a comprehensive advisory that includes multi-stakeholder perspectives to guide a transparent implementation process that protects the health and rights of all, particularly the most vulnerable and underserved populations in Kenya. We acknowledge that Kenya still faces challenges in realising the right to health as outlined in the Constitution of Kenya, 2010, which adversely affect the health, economic and social well-being of the communities we represent.

While we recognise the potential value of international cooperation in strengthening Kenya’s health system, however, such large scale cooperation, which encompasses surveillance, digital health systems, specimen collection, modernised laboratories, commodities, financing and emergency preparedness, must be implemented in a lawful, transparent and inclusive manner that prioritises people, rights and public benefit over technical efficiency alone.

Read Full Statement