A law that has governed Kenya's relationship with the International Monetary Fund (IMF) and the World Bank for more than six decades is now at the centre of a constitutional challenge, with Busia Senator Okiya Omtatah and two activists asking the High Court to declare it invalid for giving the two lenders broad legal immunity and limiting public oversight over government borrowing.
Okiya Omtatah, Bernard Muchiri and Naomi Misati argue that the Bretton Woods Agreements Act, enacted in 1963, no longer fits within the constitutional framework introduced in 2010.
They say the law allows the Executive to enter into international financial agreements, borrow money and commit public funds without adequate approval by Parliament while protecting the IMF and the World Bank from accountability before Kenyan courts.
According to the petition, the Act has created "a closed loop of unaccountable financial governance" because it permits the Executive to sign international agreements, take on debt and authorise the use of public funds while shielding the institutions involved from judicial scrutiny.
The petitioners say Section 5 of the Act incorporates provisions of the IMF and World Bank agreements into Kenyan law, giving the two institutions immunity from all judicial processes as well as protection from taxation, search, seizure and confiscation.
They argue that those protections deny Kenyans their constitutional rights to access justice, a fair hearing and access to information by preventing the courts from examining the actions of the two international financial institutions.
“The petition raises fundamental and urgent questions of constitutional importance concerning the validity of the Bretton Woods Agreements Act, a statute enacted in 1963, whose continued operation in the post-2010 constitutional dispensation is unconstitutional,” the petition states.
The petition also challenges Section 3 of the Act, saying it allows the Executive to implement international agreements without seeking parliamentary approval. It further questions Section 4, which permits payments to the IMF and the World Bank directly from the Consolidated Fund without annual approval by Parliament.
The applicants have also taken issue with provisions that allow the Treasury Cabinet Secretary to borrow money "on such terms as he may think fit," arguing that such powers do not comply with constitutional requirements governing public borrowing and the management of public finances.
According to Omtatah, the combined effect of the law is that the Executive can commit Kenya to international financial obligations, borrow funds, approve payments from the Consolidated Fund and at the same time protect the institutions benefiting from those funds from legal action before Kenyan courts.
The petitioners argue that this arrangement weakens the role of the Judiciary, reduces Parliament's oversight over public finances and erodes constitutional safeguards designed to promote transparency and accountability.
They further state that the Act violates Articles 1, 2, 94, 159 and 165 of the Constitution, together with the provisions of Chapter Twelve on public finance.
The petition also argues that the law effectively alters the Constitution without following the amendment procedures provided under Articles 255, 256 and 257.
In addition, the applicants say the blanket immunity granted to the IMF and the World Bank fails the constitutional test of proportionality under Article 24 because it limits the right of access to justice without offering effective alternative remedies.
They further argue that every day the Act remains in force leaves public funds exposed to expenditure without sufficient accountability while denying Kenyans effective legal avenues against the two institutions.
The petitioners maintain that the continued operation of the law poses an immediate threat to the constitutional order, the rule of law and the proper functioning of both Parliament and the Judiciary.
They have also asked the court to determine whether a law enacted before the 2010 Constitution can continue giving the Executive powers to implement treaties, borrow without sufficient constitutional safeguards and grant wide legal immunity to international institutions without first being aligned with the Constitution.
The High Court has directed the respondents and interested parties to file and serve their responses to both the application and the petition within 14 days. The matter will be mentioned on September 29, 2026, to confirm compliance and issue further directions.