The government suffered a major blow after the High Court suspended the planned implementation of the Social Health Insurance Act 2023 by the Ministry of Health until February 2024.
In a brief ruling rendered by Justice Chacha Mwita on Monday, November 27, 2023, the court temporarily stopped the state from enforcing three new funds gazetted by Health Cabinet Secretary (CS) Susan Nakhumicha pending the determination of a case lodged in court by activist Joseph Enock.
"In the meantime, a conservatory order is hereby issued restraining the respondents (President William Ruto, CSs in the Ministry of Health and Information, the Attorney General, Commission for Revenue Collection, The National Assembly and the Senate), their agents and or anyone acting on their directives from implementing and or enforcing The Social Health Insurance Act,2023; The Primary Health Care Act, 2023 and the Digital Health Act,2023 until February 7, 2024," Justice Mwita ordered.
The judge granted the respondents and their agents seven days to file their responses in the case.
The orders of the court came two days before the Act, which repeals the National Health Insurance Fund (NHIF) and established three new funds, came into effect.
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.
While seeking the orders, Enock through his lawyer, Harrison Kinyanjui, told the judge that the Social Health Insurance Act 2023 is unconstitutional since the Executive usurped the role of the Parliament when enacting the new law.
He argued that there was no proper public participation before the said acts law was enacted.
"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," Kinyanjui told the Judge.
He stated that although Section 2 of the Social Health Insurance Fund Act, 2023 defines "Funds" as constitutive of 3 distinct Funds namely; the Primary Healthcare Fund established under Section 20, the Social Health Insurance Fund established under Section 25 and the Emergency, Chronic and Critical Illness Fund established under Section 28, the Social Health Authority created under Section 4 of the said Act does not confer power on the said authority to administer each and every one of these Funds.
The lawyer told the court that under Section 6(b) and (c) of the said Social Health Insurance Fund Act, 2023, is a clear breach of Article 201(e) of the Constitution of Kenya.
"Section 6(b) and (c) of the said Social Health Insurance Fund Act, 2023 merely speaks of an undefined and amorphous "fund". In regard thereto, there was no report availed by the Commission on Revenue Allocation to the Public pursuant to Article 205(1) of the Constitution of Kenya for consideration under Article 205(2) of the Constitution of Kenya before the voting on the said Social Health Insurance Fund Bill, 2023," Kinyanjui stated.
Consequently, 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.
Equally, the Digital Health Act, of 2023 is disguised as furthering Universal Health Care in Kenya which the petitioner argues is not the case.
According to the Enock on September 14, 2023, the National Assembly irrationally and unconstitutionally allowed the debate period for The Social Health Insurance (National Assembly Bill No. 58 of 2023, consideration period to be truncated from the regular fourteen days to afford the Members of National Assembly time to scrutinize and read for themselves the said Bill to a mere three days in a manner that clearly violated Article 118(1)(b) of the Constitution of Kenya which mandates public participation of the people of Kenya and their involvement in the process of making legislation.
"Unconstitutional abdication by Kenya's Parliament of the constitutionally-entrenched legislative mandate in enacting the Social Health Insurance Fund Act, 2023, Primary Health Care Act, 2023 and the Digital Health Care Act, 2023 and lack of any, and/or any meaningful Public Participation in the enactment thereof renders the said Statutes unconstitutional," he stated.
Further, Enock contends that in order for the state to achieve these diabolical ends, the National Assembly of Kenya and the Senate deliberately and knowingly concealed from Kenyans the dire consequences of the Social Health Insurance Fund Act, 2023, whose legislation was enacted in unprecedented haste to appease foreign entities pushing for the enactment of the said legislation.
He adds that Section 8(2) of the Primary Health Care Act, 2023 purports to further implant and entrench the Communist State surveillance in directing County Governments in mandatory to take all necessary measures to build the capacity of community health promoters for the proper and efficient implementation of this Act, which is altogether outside the National Government's health mandate, and a breach of Schedule 4 of the Constitution.
"Indeed, under the guise of "healthcare", the Executive of Kenya that has been taken captive by Colonial forces and in violation of the County Governments Act which establishes the Administrative units thereunder, seeks to entrench the Communist Rule at the County level as detailed in Section 20 of the Primary Health Care, 2023," the court papers read in parts.
The petitioners argue that Section 106(4) of the County Government Act specifically stipulates that County planning shall provide for citizen participation adding that the National Government cannot purport to establish offices for the County governments to be executed by their respective County Public Service Boards.
The lawsuit comes days after Nakhumicha, gazetted the Social Health Insurance Act 2023 paving the way for reform in health financing.
The three new funds introduced by the government sought to address issues that have plagued the NHIF for years.
According to the challenged Act, any person who is eligible to be registered as a member of the national insurance fund will be required to produce proof of compliance to be allowed to access public services.
“Any person who is registrable as a member under this Act shall produce proof of compliance with the provisions of this Act on registration and contribution as a precondition of dealing with or accessing public services from the national government, county government or a national or county government entity,” the Act stipulates.
The SHI Act also stipulates that all non-Kenyans who reside in the country will be eligible for registration as members of the Fund.
This applies to a non-Kenyan resident ordinarily residing in Kenya for a period exceeding 12 months.
However, a non-Kenyan who intends to enter and remain in the country for less than 12 months will be required to have travel health insurance coverage.
To ensure punitive measures to curtail corruption are instituted, those suspected of defrauding the health insurance scheme, through false statements risk being jailed for five years or fined Ksh1 million or both.
The NHIF had been required to transfer all the cash balances to the Social Health Insurance Fund .