The Court of Appeal has lifted orders stopping the implementation and enforcement of the Social Health Insurance Act 2023 as introduced by the Ministry of Health.
A three-judge bench composed of justices Patrick Kiage, Pauline Nyamweya and Ngenye Macharia allowed a plea by CS Health Susan Nakhumicha to suspend the High Court orders that halted the new health plan pending the hearing and determination of her appeal.
"We hereby suspend the orders of the High Court restraining the implementation and or enforcement of the Social Health Insurance Act, 2023, the Primary Health Care Act, 2023 and the Digital Health Act, 2023 pending the hearing and determination of the applicant’s (CS Nakhumicha's) appeal in Civil Appeal No. E984 of 2023," the court of appeal judges ruled.
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However, in their ruling, the judges said some provisions of the Social Health Insurance Act including including section 26(5) which makes registration and contribution a precondition for dealing with or accessing public services from the national and county governments or their hospital entities that shall remain suspended pending the hearing of the case.
Other sections that the appellate judges have declined their implementation under the act include Section 27(4), which provides that a person shall only access healthcare services where their contributions to the Social Health Insurance Fund are up to date and active and Section 47(3) which obligates every Kenyan to be uniquely identified for purposes of provision of health services.
"We are concerned at the arguably irreversible effect of some of the provisions of the Social Health Insurance Act identified in activist Joseph Aura’s prayers in the Petition. We have therefore isolated them and they shall therefore remain suspended, even as the rest of that statute, and the other two suspended statutes, are unshackled for operationalization and enforcement pending the hearing and determination of the appeal," the judges ruled.
While lifting the orders the appellant court judges concurred with CS Nakhumicha's averments that if the court does not intervene there is a real and present danger to the health rights of countless citizens who are not parties to the litigation pending before our courts.
"We are persuaded that the confusion, the lacuna and the risk and harm to citizens pending the hearing and determination of the appeal is a price too dear to pay, and it would have the effect of rendering the appeal nugatory," the judges stated.
The court decision comes after Nakhumicha through Senior Counsel Fred Ngatia had urged the court to consider issuing temporary reliefs as they retire to write their ruling to alleviate the burden being experienced by patients countrywide owing to the effect the order has had.
"I urge you to kindly consider the thousands of patients who are suffering in the country as they seek treatment. We are in a lacuna and please find favour and set aside the orders, let those in hospitals deal with diseases and not be part of this legal battle…it is for the benefit of Kenyans who rely on this national insurance,” Ngatia informed the court
The CS had informed the court that the orders under attack created a lacuna and a vacuum in the regulatory framework leaving the Health sector in the country in "a state of animated suspension, caught in the no-man’s land of the repeal of the NHIF Act and the scuttled operation of the successor legislation."
She added that orders of the High Court bred confusion leading to the inability to grant pre-treatment authorization for the 17 million former members of the NHIF and exposing the sick to the imminent threat of denial of treatment contrary to their fundamental rights.
Ngatia stated that patients across the country can't get pre-authorization for treatment because NHIF ceased to operate and the succeeding Act was blocked by the High Court.
According to the government, the High Court Chacha Mwita errored in law by giving the orders ex-parte that halted its plans to implement the new health insurance fund.
"It is an error as the order granted was final. It is difficult to comprehend how a court can issue a conservatory order, which should be ordinarily granted after hearing all parties," Ngatia said.
Attorney General Justin Muturi and President Wiliam Ruto supported the application by CS Health to have the orders vacated saying that the effect of that order is that Kenyans are not able to access healthcare which is a right guaranteed to them under the constitution.
"We are in a vacuum and it is hurting patients in the country," the court heard.
The Attorney General and the President though lawyer Emmanuel Bitta supported Ngatia's submissions saying that there’s no transition mechanism since the entire Act was suspended.
“There's no framework to carry out the services from the previous regime that’s why we are asking the court to stay and allow the realization of the Act pending the hearing and determination of the appeal,” the AG submitted.
However, the petitioners' activist Joseph Aura and the Kenya Medical Practitioners and Dentists Council (KMPDC) strongly opposed the application sought by the government arguing that there is no lacuna.
Led by Lawyer Harrison Kinyanjui they urged the appellant judges not to vacate the orders as the same are properly issued by the court after considering their petitions.
Kinyanjui told the judges that the Social Health Insurance Act 2023 is unconstitutional since the executive usurped the role of the parliament when enacting the new law.
He stated that there was no proper public participation before the said law was enacted and therefore should not be implemented.
"In violation of Article 7(1) of the Constitution of Kenya, none of the purported "public participation" engagements by either National Assembly or the Senate were conducted or executed in the Kiswahili language in respect of the Social Health Insurance Fund Act, 2023, or the Digital Health Act, 2023, or the Primary Health Care Act, 2023. The said Acts are to the said extent null and void," lawyer Kinyanjui stated.
The court heard the exclusion of the originally framed Section 38 of the Social Health Insurance Fund Bill, 2023 from the final Social Health Insurance Fund Act, 2023 constitutes a violation of Article 206 of the Constitution which demands that all money raised and or received by an entity on behalf of the national government be paid into the consolidated fund, with the necessary provision which in this instance was breached.
The petitioners also argue that the failure to absorb all employees of the National Health Insurance Fund (NHIF) into the newly established funds is discriminatory, amounts to unfair labour practices and is in breach of the Constitution.
They say the Act fails to provide a process for defining the health services covered by the scheme.
"The lack of a systematic, evidence-based approach for designing an affordable and cost-effective benefits package reaffirms the petitioner's assertion that the Act is half-baked," the petitioners contend.
They argue that the law imposes a mandatory contribution of 2.75 per cent on employees, which is excessive for Kenyans who are already burdened with taxes and deductions.
The three new funds which were introduced by the government include the Primary Healthcare Fund, Social Health Insurance Fund and Chronic Illness and Emergency Fund.
They had sought to address issues that have plagued the NHIF for years.
