A three-judge bench of the High Court has suspended its decision to quash the Health Acts after the Attorney-General’s office argued that the repeal would leave a void in the health sector.
Justices Alfred Mabeya, Robert Limo and Dr Freda Mugambi suspended their ruling for 45 days to allow the AG, through Emmanuel Bita, to appeal the decision and at the same time implement the ruling within 120 days as earlier directed.
However, the judges said the suspension did not affect two sections that were 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 up to date and active, and that one must show proof of compliance with registration and contributions as a precondition for access to public services.
Earlier, President William Ruto’s plans for universal health coverage suffered a setback on Friday after the High Court declared the three Acts under which UHC would be rolled out, unconstitutional.
The three-judge bench had declared the Social Health Insurance Act, 2023, Primary Health Care Act, 2023 and Digital Health Act, 2023, which replaced the National Hospital Insurance Fund (NHIF) null and void.
The judges suspended their judgment for 120 days to allow the government to restart the process of enacting the new laws.
Former Cabinet Secretary for Health, Susan Nakhumicha, had defended the Acts saying they were meant to promote the implementation of the UHC and ensure that every person accessed the highest standard of healthcare.
The Act, she said, establishes the Social Health Authority (SHA), which is mandated to manage the three funds established under it- the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic and Critical Illness Fund.
Members were to contribute 2.75 percent of their income to the SHIF and the State would pay for the citizens unable to make contributions.
President Ruto had announced that the rollout would take effect on October 1 and NHIF has been notifying Kenyans to register with SHA.
The laws were challenged by Joseph Enock Aura, among others, who argued that the government appointed hundreds of community health promoters without affording the county governments a say in the programme.
“The community health promoters were appointed without ensuring whether they have a training, experience or any background in healthcare. This means that even a handcart pusher would get the job. These are people who are supposed to keep peoples’ data,” he said through his lawyer Harrison Kinyanjui.
Mr Kinyanjui said by purporting to confer upon unlicensed, unqualified and arbitrarily appointed community health promoters the critical responsibility of grass root primary healthcare across the country, the Primary Health Act, 2023 sabotages the realisation of quality healthcare pursuant to Article 43(1)(a) of the Constitution.
He further said the three Acts were illegal as they were enacted without complying with mandatory requirements of the Statutory Instruments Act. He pointed out that no regulatory impact statement was 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 that was conducted in the Kiswahili language.
Mr Kinyanjui further argued that no report was tabled before the National Assembly by the Commission on Revenue Allocation for consideration before the voting on the Social Health Fund Bill, 2023.
According to Mr Kinyanjui, the bills were hurriedly read in Parliament on September 26, 2023 during the second reading on the same day.
