BY SAM ALFAN.
The Kenya Kwanza administration has suffered a blow after the High Court temporarily suspended a directive to school heads to mandatorily register children under the Social Health Insurance Fund (SHIF).
Justice Jairus Ngaah further allowed the Law Society of Kenya (LSK) to challenge the decision by the Ministry of Education, requiring students to register under SHIF.
“The applicant’s application dated 17 September 2024 filed under a certificate of urgency of even date. I am satisfied that the application is urgent and it is so certified. Leave is granted for the applicant to file a substantive motion for judicial review reliefs in terms of prayers 2(a) and (b) of the chamber summons,” ruled the judge.
The circular was issued by Education principal Secretary Belio Kipsang on 16th August, 2024 for compulsory registration of all school-going children as dependents of their parents in the SHIF.
It is LSK’s argument that the circular is illegal, irrational and ultra vires as SHIF and other health laws were declared unconstitutional by the High Court.
LSK said SHIF has no force in law and that Parliament complied with the directive issued by the court when quashing the laws early this year.
“That the impugned Act among other provisions had provided for compulsory registration of all Kenyans under the Social Health Insurance Fund which provisions now remain moot and of no legal consequence,” said LSK.
LSK added that to date the dictates of that judgement have not been complied with and in any event the Social Health Insurance Fund Act, 2023 remains suspended and of no legal effect hence any decision by the respondents anchored on the same remains illegal, irrational and of no legal consequence.
The lawyers’ body said at the arbitrary imposition of this precondition to the school going children Kenyan learners on such a short notice without prejudice to the illegality in the first place, was made in clear breach of the children’s right to education.
LSK added that the decision by Ministry of Education and Ministry of Health decision to impose compulsory registration of school going children as dependents of their parents as a precondition to accessing schools in absence of any legal or policy framework for the same is not only irrational but illegal and unconstitutional as it impedes on the minors’ rights to basic education.
LSK added that the directive is ambiguous and unreasonable in that it imposes a duty on the parents and at the same time imposes supervisory duty on the schools.
