BY SAM ALFAN.
Activist Joseph Aura has urged the High Court to find three Acts that replaced the National Hospital Insurance Fund (NHIF) to be unconstitutional.
Aura through his lawyer Harisson Kinyanjui submitted that the Social Health Act, 2023, The Primary Health Act, 2023 and The Digital Health Act, 2023 should be quashed because they are illegal.
Kinyanjui told the court that the National Assembly and the Senate stepped out their constitutional mandate in purporting to legislate the three Acts without viable public participation.
The court heard that Health Cabinet Secretary Nakhumicha Wafula has not refuted that there was no form of public participation in her affidavit filed in court.
Kinyanjui further told the court that the government in enacting the Primary Health Care, 2023 contravened the provisions of the law and the said Act purports to assign health care into the hands of “community health promoters” who are neither trained in any aspect or field of medical health, nor licensed, and which the county governments had no say in it.
Governors have also opposed the implementation of the Act arguing that some provisions were unconstitutional.
Aura told the judge Enock Mwita section 20 of the Primary Health Care Act comprises unconstitutional edicts, serving alien, and diabolical agenda not sanctioned by Kenyans and it violates Article 187(2)(b)of the Constitution.
“The National government cannot assume responsibility over health function micro implementation, as assigned by the fourth schedule,” submitted lawyer Kinyanjui.
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.
“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.
The activist is seeking from the court orders declaring to declare the three Acts 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, therefore null and void.