Silence in Court: SHA was beset by myriad legal battles, some still pending  

By Faith Wanjiku 

The Social Health Insurance Act (SHIA), the Digital Health Act, and the Primary Health Care Act, three laws that laid the legislative foundation for the Social Health Authority (SHA) were passed by Parliament on October 19, 2023. Parliament enacted the laws, but almost immediately, various parties came forward challenging them and the mandate of the authority. Below are the cases challenging the new health financing system and their rulings: 

On November 24, 2023, petitioner Enock Aura through lawyer Harrison Kinyanjui moved to court seeking orders that the three Acts be nullified, as they were unconstitutional. His claims were: 

1. That the Social Health Insurance Act underwent its first reading in the National Assembly without complying with Article 110(3) of the Constitution which mandates concurrence from the speakers of both houses regarding Bills concerning the County Assembly. 

2. That on September 14, 2023, the National Assembly reduced the publication period for the Social Health Insurance Bill from 14 days to 3 days, a violation of Article 118(1) (b) of the Constitution on public participation. 

3. Aura criticised an advertisement placed by the Assembly on September 15, 2023, inviting Kenyans to access the Bill on its website and submit comments by September 22, seven days later. He argued that the advertisement lacked the context of a proper invitation, being too small and nearly illegible. 

4. That Kenyans were not accorded sufficient time to engage and deliberate on the bill, questioning the National Assembly’s focus on Machakos County at the expense of the other 46 counties in Kenya. 

5. That public participation did not happen in Turkana as had been planned. 

6. That the Digital Health Act was presented on short notice for submission of memoranda and faulted the Senate and National Assembly. 

7. That Section 26(5) of the Social Health Insurance Act violates the right to life protected under Article 26(1) of the Constitution, and that withholding public services at both national and county levels from unregistered and unpaid members would infringe upon Article 174 of the Constitution. 

8. That section 27(4) of SHIA breaches Article (43) (2) of the Constitution by restricting access to health services solely to registered and paid-up members. 

9. That public participation ought to have been conducted in Kiswahili and English, but was only done in English. 

10. That Section 26(3) of the SHIA was concerning as it would facilitate the exploitation of children by requiring digital registration for those born after the legislation’s enactment. 

2. On December 12, 2023, the Health ministry through Cabinet Secretary Susan Nakhumicha filed an application opposing Aura’s petition. The Ministry of Health indicated that: 

1. Public participation was conducted by publishing notices on the SHA website inviting public review and comments concerning the bills. 

2. That the bills were accessible on the ministry’s website and that targeted stakeholders were invited through physical meetings to present their views, which occurred between September 4, 2023 and September 19, 2023. 

3. That all citizens had a right to mandatory health insurance as rooted in the principles of solidarity and universality. 

4. That Section 26(5) of SHIA supports the role of unique identifiers in enhancing privacy, confidentiality, and fraud prevention. 

5. That the community health promoters are vital in supporting healthcare workers to implement preventive and promotive health strategies. 

Court ruling: The three-judge bench ruled in favour of Aura. Implementation of the new health financing system by SHA halted pending further public engagement. 

3. In December 2023, The Kenya Medical Practitioners and Dentists Union (KMPDU) filed a case against the Ministry of Health. Their arguments were: 

1. That the enactment of the three laws under SHA lacked sufficient public participation as required by the Constitution.  

2. That all doctors should receive a special benefits cover under the new health financing system. 

Case Status: The case was accepted by the High Court for review and is pending judgment. 

4. On May 21, 2024 two employees from the National Health Insurance Fund, Gwaragwara Nkosi and Khadija Ali, filed a case to stop the transition from NHIF to SHA. The two named the Salaries and Remuneration Commission, The Attorney General, and the Social Health Authority as respondents in this case. Their petition was: 

1. Orders to stop the transition committee either by themselves or by agents from submitting their report to the president, Ministry of Health, SHA and NHIF board.  

2. They were contesting the increase in salaries for NHIF employees without a similar increase in the salaries of NHIF management, claiming that it was a violation of staff rights.  

3. That the shift from NHIF to SHA will create disparity in salaries and this will affect all, including to retirement. 

5. On July 12, 2024, High Court judges Alfred Mabeya, Robert Limo, and Freda Mugambi made a ruling that the three acts underpinning SHA were unconstitutional due to the lack of public participation.  

Case status: The case is still in court pending judgment. 

Ruling: 

1. The High Court ordered Parliament to conduct adequate public participation within 120 days before the laws can be re-enacted.  

2. The court also halted implementation of the health financing system under SHA until these conditions are met.   

3. Parliament was ordered to relook into the Primary Health Care Act (PHCA) No.13 of 202, The Digital Health Act No.15 of 2023 (DHA) ANS Social Health Insurance Act No. 16 of 2023 (SHIA),Aura had contested the constitutionality of the three statutes  

6. On July 26, 2024, The Ministry of Health filed an appeal, requesting a stay on the High Court’s ruling. The government argued that suspending the SHA laws would cause chaos in healthcare service provision and lead to the collapse of key programmes under the Universal Health Coverage initiative.  

7. On September 20, 2024, the Court of Appeal ruled in favour of the Ministry of Health. The court suspended the earlier High Court ruling and allowed rollout of the new health financing system by SHA to proceed as scheduled on October 1, 2024. 

Case status: SHA cleared to proceed with new health financing system on October 1, but the case remains suspended pending hearing. 

8. On September 13, 2024, Rural and Urban Private Hospitals Association of Kenya (RUPHA) Chair Brian Lishenga, and Kenya Association of Private Hospitals (KAPH) Chair Eric Musau wrote a protest letter to the SHA chief executive Elijah Wachira raising concerns that: 

1. The shift from NHIF to SHIF poses a significant risk to the smooth rollout of the new benefit packages. 

2. Healthcare workers are unprepared for the shift. 

3. Sample provider contracts have not been shared with the provider association as per their last meeting held on Wednesday, July 10, 2024. 

4. They do not have enough time to go through the contract provisions and give feedback in the spirit of public participation. 

Status: The Social Health Authority is yet to respond to the protest letter.