The SHA rollout has already taken place and thus move to suspend it has been overtaken by events – Abdullahi Abdi Sheikh, Director, Konvergenz Ltd
A case challenging the award of a Ksh104 billion tender to Safaricom PLC and two other companies to provide technological support for rolling out of the Social Health Authority (SHA) programs will appear for hearing on October 25, 2024.
Milimani High Court Judge Bahati Mwamuye, while giving the direction, certified the matter as urgent and ordered the Ministry of Health to file its response by October 18, 2024.
The direction follows a petition filed in the High Court on Monday September 30, 2024, by Busia Senator Okiya Omtatah, Eliud Karanja Matindi and Dr Benjamin Magare-Gikenyi pitting the Consortium of Safaricom PLC, Apeiro Ltd, and Konvergenz Ltd.
The three petitioners have sued Cabinet Secretary Ministry of Health, and the Principal Secretary Medical Services for “hatching a fraud scheme with the Safaricom Consortium designed to steal some Ksh104,808,136,478.00, over a period of some 12 years, from contributions made by Kenyans under the Social Health Insurance Fund”.
The petitioners claim the heist will be executed through the purported provision by the Consortium of the Integrated Healthcare Information Technology System for Universal Health Care (UHC) under Tender/Contract No. MOH/SDMS/ADM/SPPP/005/2023-2024.
The two entities have also been sued for rolling out the Social Health Insurance Fund (SHIF) using invalid subsidiary legislation annulled by the Senate.
Cabinet Secretary Ministry of Health, Principal Secretary Medical Services, the Attorney General, The Public Procurement Regulatory Authority, Social Health Authority (SHA), Safaricom PLC, Konvergenz Networks Solutions Limited and Apeiro Limited have been named as key respondents in the suit.
Listed as interested parties are the Law Society of Kenya, Katiba Institute, Kenya National Commission on Human Rights, Kenya Human Rights Commission, Transparency International, The Senate and The National Assembly.
In their petition, Senator Omtatah, Matindi and Dr Magare claim that Social Health Insurance (General) regulations 2024 (Legal Notice number 49 of 2024) and the Social Health Insurance (Tribunal Procedure) Rules, 2024 (Legal notice Number 48 of 2024) had been annulled by Senate and reliance on them is a violation of Article 113 of the Constitution as the annulled regulations were not approved after mediation.
The petitioners are also challenging the constitutional validity of implementation of the above two annulled legal Notices.
The petitioners argue that exclusion of Senate in their enactment violates rule of law, democracy, public participation, devolution and sharing of power. It further violates Article 94 as they are legislations passed outside the provisions of the Constitution as well as Article 96.
The three want the court to declare both the tender award and the contract by the government through the Ministry of Health to Safaricom Consortium, unlawful, unconstitutional and therefore, invalid, null and void.
They also want the court to prohibit the government from spending public funds on the tender under question, as well as orders under Article 226(5) of the constitution directing the government to recover from public officials any funds lost in that tender.
On implementation, the petitioners state that the cost of setting up the new system is colossal, amounting to the loss of nearly Ksh105 billion over 12 years and it is inconceivable how the respondents can justify single-sourcing provision of services for such an amount of money.
Omtatah said it is ironic that the government claims to be abandoning the system previously operated under the National Health Insurance Fund (NHIF) for being prone to abuse, only for them to single-source a system more expensive than the previous one.
“It is our case that the people of Kenya are being set up to fail by being burdened with an exorbitantly expensive system whose basis for costing is unverifiable,” added Omtatah.
The activist stated that single-sourcing the system was unfair, inequitable, lacked transparency, was not competitive and was not cost effective.
While SHA has not yet responded to the petition, Konvergenz Limited responded through its director, Abdullahi Abdi Sheikh, stating that the petitioners are misrepresenting the factual and legal position on the implementation of the SHIF.
Sheikh said in court yesterday that SHIF is a component of the Universal Health Coverage plan, and thus the petition challenging it is a gross abuse of the court process and should be dismissed.
“The rollout has already taken place and thus their move to suspend it has been overtaken by events,” said Sheikh.
He further stated that the company will demonstrate during hearing of the case, that the petition does not raise any constitutional issues for determination and is based on a misapprehension of the law and the correct factual position of an Intergrated Healthcare Information Technology System for Universal Healthcare (UHC).
“By a letter dated June 27, 2024, the AG granted clearance for the parties to sign the project contract as required under section 134 of the Public Procurement and Asset Disposal Act for all contracts of value exceeding Ksh5 billion. It was revised to Ksh104 billion for a period of 10 years inclusive taxes, VAT and excise duty.”
“Currently millions of Kenyans have been onboarded onto SHIF through the system, while millions others continue to register onto the system,” said Sheikh, adding that a conservatory order will deny members of the public their constitutional right to healthcare services in the absence of any other framework for provision of healthcare other than SHIF.
The case will appear for hearing on October 25.
What the petitioners want:
- A declaration that both the award and contract of the tender to provide the Integrated Healthcare Information Technology System for Universal Health Care by the government to Safaricom Consortium, was unlawful and unconstitutional.
- A declaration that the decision not to use the Digital Health Agency to develop the Integrated Healthcare Information Technology System for Universal Health Care was unlawful and unconstitutional.
- A declaration that the decision to roll out the Social Health Insurance Fund without subsidiary legislation approved by parliament was unlawful and unconstitutional.
- A declaration that the inadequate cover amounts provided for medical conditions under SHIF are unlawful and unconstitutional.
- An order quashing the award and contract by government to the Safaricom Consortium for the provision of the Integrated Healthcare Information Technology System for Universal Health Care.
- An order of permanent injunction prohibiting the government and its agents from spending any public money on the Safaricom Consortium under the contested tender.
- An order directing the government of Kenya, through the Attorney General to recover from public officials any public money lost in procurement of the tender to Safaricom Consortium.
- An order directing the government of Kenya, through the Attorney General, to recover from Safaricom Consortium any public money paid to them under the tender.
- An order compelling the Digital Health Agency to develop the Integrated Healthcare Information Technology System for Universal Health Care.
