The Social Health Insurance Act (SHIA), alongside the Primary Health Care Act, and Digital Health Act – which were slated to replace the National Hospital Insurance Fund (NHIF) – have been declared unconstitutional by a three-judge bench of the High Court this afternoon.
The ruling by Justices Alfred Mabeya, Fred Mugambi, and Robert Limo has suspended the three acts for 120 days for the government to rectify the inherent illegalities. The three acts passed by parliament last year were the building blocks of the Social Health Authority, which was mandated to replace the NHIF in October this year. The rollout of the new insurance scheme was supposed to take place this month but the former Health Cabinet Secretary Susan Nakhumicha cited delays in the launch of the digital platform set to support payments and registration. The Social Health Authority was appraised by the government as the roadmap to the implementation of the Universal Health Coverage (UHC). It consisted of the Primary Healthcare Fund, the Social Health Insurance Fund, and the Emergency, Chronic and Critical Illness Fund.
The Social Health Insurance Fund (SHIF) was heavily criticized over its plan to deduct 2.75% of Kenyans’ income. The compulsory cut was regarded as ambitious and the whole process was not subjected to rigorous public participation.
“Accordingly, we find and hold that all the impugned acts fail to meet the threshold and criteria set out by the Supreme Court and the bare minimum standards we have set out above. They fall short of the constitutional criteria for public participation,” the judges said in the ruling.
The transition was challenged by Joseph Enock Aura who argued that concerns by county governments had not been factored into the SHA legislation. The petitioner’s lawyer had argued that failure to present a report by the Commission on Revenue Allocation (CRA) and contributions from the Senate, the national assembly’s vote had flouted the law.
“He (the petitioner) insists that the Senate conducted extensive public participation during the legislative process of the impugned acts, affirming that amendments did not necessarily align with public views expressed but within Parliament’s discretion as governed by its standing orders and procedures,” the ruling stated.
The petitioner also argued that the acts assigned major healthcare responsibilities to untrained Community Health Providers. The government defended the move claiming that due to a perennial shortage of medics in many marginalized regions in the country, the Community Health Providers would fill the gap.
Although the government has stated that SHIF would effectively cover everyone and reduce financial burden imposed by healthcare costs, skeptical voices are not confident that the authority handling it would be any different from the NHIF.
The NHIF, since its establishment, has been riddled with corruption and mismanagement of funds deducted from Kenyans’ wages. Even during the ongoing plans to shift to SHIF, NHIF was implicated in a scandal detailing how a supposed ‘typing error’ saw excess payouts worth KSh 368 million.
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