By Faith Wanjiku
Court of Appeal has allowed the Ministry of Health to proceed with the intended rollout of the new health financing system by the Social Health Authority (SHA) as scheduled on October 1, 2024.
SHA is the government body implementing the new health care system that will replace the National Health Insurance Fund (NHIF), which is expected to cease operations in November this year.
Appellate court Judges Francis Tuiyott, Abida Ali-Aroni and Lydia Achode ruled in favour of the Cabinet Secretary Ministry of Health, who was seeking a stay of execution of a judgment from the High Court dated July 12, 2024.
The July ruling by High Court Judges Alfred Mabeya, Robert Limo and Freda Mugambi had found the three acts under the SHA unconstitutional. These are the Social Health Insurance Act (SHIA), the Digital Health Act and the Primary Health Care Act.
The Judges directed Parliament to undertake sensitisation and public participation within 120 days, before enacting the laws.
“Parliament undertakes sensitisation, adequate, reasonable, sufficient and inclusive public participation in accordance with the Constitution before enacting the said acts”, read the judgment in part.
In its defence, the Ministry of Health had stated that the three statutes had been in operation during the past six months without any complaint, and they are the main pillars of the government’s Universal Health Coverage (UHC) programme.
In a signed affidavit, Principal Secretary in the State department for medical services, Harry Kimtai, said that the High Court decision would cause hardships among Kenyans as it would not be possible to carry out sensitisation of the public within 120 days as directed.
He further argued that in the absence of the Social Health Authority and corresponding laws, health service provision in the country would be thrown into jeopardy and eventually collapse.
Friday’s ruling means that the government can proceed with the rollout of the new health financing system, and the three corresponding laws, which had been scheduled for October 1.
In their ruling, the Judges stated that, “In these intractable circumstances, we lean towards granting stay as the High Court decision is tested before this Court and an authoritative pronouncement is made regarding the validity of the three statutes.
“We reach this decision because the statutes have been with us for nine months and to allow the framework under which the Health sector is operating to revert to the old framework,” while referring to the NHIF.
They noted that should the government return to the current NHIF framework in the event of the appeal succeeding, it would put the “undeniably crucial sector in a state of flux and uncertainty”.
