A three-judge panel of the Supreme Court has halted its decision to repeal health laws after the attorney general’s office claimed the repeal would leave a vacuum in the health sector.
Justices Alfred Mabia, Robert Limo and Dr. Freda Mugambi suspended their ruling for 45 days to allow the Attorney General, through Emmanuel Bitta, to appeal the decision and at the same time execute the ruling within 120 days as previously directed.
However, the judges said the suspension did not affect two sections they declared unconstitutional.
Article 26(5) and Article 27(4) of the Social Health Insurance Act (SHIA) state that a person can only access health services if his or her contributions are up to date and active, and a person must show proof of compliance with registration and contributions as a prerequisite 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 under which UHC would be rolled out unconstitutional.
The three-judge bench 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 rulings for 120 days to allow the government to resume the process of enacting new laws.
Former Health Minister Susan Nakhumisha defended the laws, saying they were intended to advance the implementation of universal health coverage and ensure everyone has access to the highest standard of health care.
She said that the law established the Social Health Authority, which is responsible for managing the three funds established under it, namely the Primary Health Care Fund, the Social Health Insurance Fund, and the Emergency, Chronic and Critical Diseases Fund.
Members were to contribute 2.75 percent of their income to the Social Health Insurance Fund, and the state would pay for citizens unable to make contributions.
President Ruto had announced that the rollout would take effect on October 1, and the National Health Insurance Authority has notified Kenyans to register with the authority.
Joseph Enoch Ora, among others, has challenged these laws, alleging that the government has appointed hundreds of community health promoters without giving county governments a say in the programme.
“Community health promoters were appointed without ensuring that they had training, experience or any background in healthcare. This means that even wheelbarrow pushers will get the job. These are the people who are supposed to hold people’s data,” he said through his lawyer Harrison Kinyanjui.
Mr. Kinyanjui said the Primary Health Care Act 2023, by purporting to give unlicensed, unqualified and arbitrarily appointed community health promoters the critical responsibility of grassroots primary health care across the country, is sabotaging the achievement of quality health care in accordance with Section 43(1)(a) of the Constitution.
He added that these three laws are illegal because they were issued without complying with the mandatory requirements of the Legal Instruments Act. He pointed out that no regulatory impact statement has been submitted at all.
On public participation, Mr. Kinyanjui said the bills were never subjected to effective and mandatory public participation as there was no form of participation conducted in Kiswahili.
Mr Kinyanjui added that no report had been submitted to the National Assembly by the Revenue Allocation Committee for consideration before voting on the Social Health Fund Bill 2023.
Mr. Kinyanjui said the bills were hastily read through Parliament on September 26, 2023 during the second reading on the same day.
