BY SAM ALFAN .
The High Court has stopped the government from implementing newly launched Social Health Fund Act after a petition was filed challenging sections of the Act as being unconstitutional.
The Act, which is set to replace the National Health Insurance Fund (NHIF) will remain frozen until February next year after High Court judge Chacha Mwita certified the case as urgent.
The judge stopped the Social Health Authority from enforcing Social Health Insurance Act, 2023 ,The Primary Health Insurance Care Act, 2023 and The Digital Health Act 2023.
“A conservatory order is hereby issued restraining the respondents, their agents and or anyone acting on their directives from implementing and or enforcing Social Health Authority from enforcing Social Health Insurance Act,2023 ,The Primary Health Insurance Care Act,2023 and The Digital Health Act 2023 until 7th February 2024,” ordered the Judge Mwita.
The Judge directed that Joseph Enock Aura to serve the petition to the CS Health Susan Nakhumicha, her ICT courterpart Eliud Owalo, Attorney General Justin Muturi and forthwith.
Activist Joseph Enock Aura moved to court through lawyer Harrison Kinyajui challenging the implementation of the Social Health Insurance Act, 2023 that repeals National Hospital Insurance Fund (NHIF) and established three new funds.
Aura is seeking declaration do issue that Sections 26(5), 27(1)(a), 27(4), 38, and 47(3) of the Social Health Insurance Fund Act, 2023, are inconsistent with the Constitution of Kenya, and therefore null and void to the said extent.
He wants the court to declare that in purporting to confer upon unlicensed, unqualified and arbitrarily appointed “Community Health Promoters” the critical responsibility of grass root primary health care across Kenya’s counties, the Primary Health Act, 2023 sabotages the realization by Kenyans of quality health care pursuant to Article 43(1)(a) of the Constitution of Kenya.
The activist further wants the court to declare that there having been no Report availed to the National Assembly of Kenya by the Commission of 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 Social Health Insurance Fund Bill, 2023, the Social Health Insurance Act, 2023 is null and void.
“A Declaration do issue that the exclusion of the originally framed Clause/Section 38 of the Social Health Insurance Fund Bill, 2023 in the final Social Health Insurance Fund Act, 2023 constitutes a violation of Article 206(1)(a) of the Constitution of Kenya 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 proviso which in this instance was breached,”seeks Aura.
He wants to declare no issue that the enactment of the social Health insurance Fund Act, 2023, the Primary Health Care Fund Act, 2023, and the Digital Health Act, 2023 was in contravention of the National Government’s role in health matters as prescribed in Schedule 4 of the Constitution of Kenya and are therefore null and void to the said extent.
“A declaration that the entire Social Health Insurance Fund Act, 2023; the entire Digital Health Act, 2023 and the entire Primary Health Act, 2023 are all invalid having been enacted without complying with the mandatory requirements of the Statutory Instruments Act,” seeks the activist,” pleads Aura.
In the constitution petition, he is seeking court to declare that the entire Social Health Insurance Fund Act, 2023; the entire Digital Health Act, 2023 and the entire Primary Health Act, 2023 are all invalid for lack of effective, tangible and mandatory public participation as prescribed and required under Articles 10(2)(b) and 118(b) of the Constitution of Kenya and are all therefore null and void.
He argues that the Bill version of the said Act (Social Health Insurance Fund Bill, 2023- National Assembly Bills No.58 of 2023) dated 11th September 2023 was incepted by the Leader of the Majority Kimani Ichung’wa before National Assembly at 10.00 am on 14th September 2023 and on the same day underwent the First Reading, without compliance with Article 110(3) of the Constitution of Kenya, which required in mandatory terms the concurrence of the Speakers of the 2 Houses:
On the same day on 14th September 2023 the Social Health Insurance Fund Bill, 2023 was committed to the Departmental Health Committee of the National Assembly for deliberation, pursuant to Standing Order No. 127 of the National Assembly;
On the same 14th September 2023 the 5th Respondent National Assembly irrationally and unconstitutionally allowed The Social Health Insurance (National Assembly Bill No. 58 of 2023) consideration period to be truncated from the regular fourteen (14) days (to afford the Members of National Assembly time to scrutinize and read for themselves the said Bill) to a mere three (3) days in a manner that clearly violated Article 118(1)(b) of the Constitution of Kenya which provision mandates public participation of the people of Kenya, and their involvement in the process of making legislation;
He further adds that on a weekend Friday, September 15th 2023 a surreptitious advert was placed in the hard copy of the Daily Nation newspaper by the National Assembly, urging Kenyans to digitally access the Social Health Insurance Fund Bill, 2023 online on the National Assembly web portal and submit comments to the address given thereunder.
