Respite for the state: Judges suspend their own ruling invalidating the SHIF health plan

A three-judge panel of the Supreme Court has suspended its decision to repeal the health laws after the Attorney General’s Office argued that repeal would leave a gap in the health sector.

Justices Alfred Mabeya, Robert Limo and Dr Freda Mugambi suspended their judgment for 45 days to allow the Attorney General, through Emmanuel Bita, to appeal the decision and at the same time to implement the judgment within 120 days as previously ordered.

However, the judges stated that the suspension did not affect two sections that had been declared unconstitutional.

Sections 26(5) and 27(4) of the Social Health Insurance Act (SHIA) state that a person can only access health services if their contributions are current and active. In addition, proof of compliance with registration and contribution requirements must be provided as a condition for accessing public services.

Earlier, President William Ruto’s plans for universal health coverage suffered a setback on Friday after the Supreme Court declared the three laws on the basis of which universal health coverage was to be introduced unconstitutional.

The three-judge bench had declared the Social Health Insurance Act, 2023, the Primary Health Care Act, 2023 and the Digital Health Act, 2023, which replaced the National Hospital Insurance Fund (NHIF), null and void.

The judges suspended their ruling for 120 days to give the government the opportunity to resume the process of passing the new laws.

Former Health Minister Susan Nakhumicha defended the laws, saying they were intended to promote the implementation of UHC and ensure that everyone has access to the highest quality health care.

The law, she said, establishes the Social Health Authority (SHA), which will be tasked with managing the three funds established under the SHA – the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic and Critical Illness Fund.

Members would be required to contribute 2.75 percent of their income to SHIF, and the state would cover those citizens unable to pay contributions.

President Ruto had announced that the implementation would take effect on October 1 and NHIF urged Kenyans to register with SHA.

The laws were challenged by Joseph Enock Aura, among others, who argued that the government had appointed hundreds of community health promoters without giving county governments a say in the program.

“The community health promoters were appointed without ensuring that they have any training, experience or any background in health care. This means that even a handcart pusher would get the job. These people are supposed to keep people’s data,” he said through his lawyer Harrison Kinyanjui.

Mr Kinyanjui said the Primary Health Act, 2023 sabotages the implementation of quality healthcare under Article 43(1)(a) of the Constitution by purporting to give unlicensed, unqualified and arbitrarily appointed community health promoters critical responsibility for grassroots primary health care across the country.

He further said that the three laws were illegal as they were enacted without complying with the mandatory requirements of the Statutory Instruments Act. He pointed out that no regulatory impact assessment had been filed at all.

On public participation, Mr Kinyanjui said that effective and compulsory public participation had never taken place in the drafting of laws because there was no form of participation in the Kiswahili language.

Mr Kinyanjui further argued that no report had been submitted to the National Assembly by the Revenue Distribution Commission for consideration before voting on the Social Health Fund Bill 2023.

According to Mr Kinyanjui, the bills were hurriedly read in Parliament on 26 September 2023 at the second reading on the same day.