BY SAM ALFAN.
The Court of Appeal has declined to suspend a decision quashing the health laws putting President William Ruto’s Universal Health Coverage plain in limbo.
Court of Appeal Judges Francis Tuiyot, Abida Ali Aroni and Lydia Achode declined to suspend the High Court decision and instead, said they will give their ruling next month.
Judge Achode pointed out that Kenyan people need to participate in the enactment of the three sets of health laws as it was apparent that they were not consulted.
While declining to extend the order, the judges said there was no lacunae in law because Section 6(1) in the Schedule of SHIF gave a year of transition. “So there apparently will be no crisis since NHIF appears operational,” said the judges.
“There is a risk that should the CoA agree entirely with the Constitutional Court on the unconstitutional nature of the three pieces of legislation, the public harm will be greater and to undo it would be costlier.
Justices Alfred Mabeya (presiding) Freda Mugambi and Robert Limo declared the entire Social Health Insurance Fund Act, 2023, the entire Digital Health Act, 223 and entire Primary Health Act, 2023 are unconstitutional.
The judges said in as much as they appreciated the noble intention of the government, the government cannot be allowed to disregard the clear constitutional tenets that binds it.
The court said the haste with which the laws were enacted infringed on the national values and principles of the Constitution.
The judges, however, gave Parliament a chance to redeem itself by conducting a comprehensive public participation before enacting the three Acts.
“Being cognizant of the importance of the impugned Laws and the input that has already gone into their enactments and recognizing the purport of the enactments as far as realization of the rights under Article 43 of the Constitution we are prepared to give Parliament an opportunity to redeem itself and save the Laws. The breaches that tainted the Laws are redeemable within our findings and can be corrected,” the judges said.
