• They cited Section 26(5) and 27 (4) of SHIA, saying some rights under the Act have been limited.
• The judges in closing said the required amendments to the Act should be done within 120 days. Within that period the Act will remain suspended.
Image: DOUGLAS OKIDDY
The High Court has suspended the implementation of the Social Health Insurance Act for 120 days to allow Parliament make amendments.
Justices Alfred Mabeya, Robert Limo and Fridah Mugambi found some of the sections in the Act to be unconstitutional.
They cited Section 26(5) and 27 (4) of SHIA, saying some rights under the Act have been limited.
Section 26(5) makes registration and contribution a precondition for dealing with or accessing public services from the national and county governments or their entities.
Section 27(4) on the other hand provides that a person shall only access healthcare services where their contributions to the SHIF are up to date and active.
The judges said to the extent that the two sections of SHIA have not made exception to the right to emergency medical services, the same cannot stand the test of constitutionality.
They offend Article 43 of the Constitution, which obligates every Kenyan to be uniquely identified for purposes of the provision of health services.
"We say so because the precondition set out in those two provisions infringes on the right to access to emergency services on one hand, while it is the same right that the state aspires to realise with the challenged Acts," they said.
The import of the challenged provisions, they explained, would mean that if a person is rushed to hospital in whatever state, he or she will only access emergency treatment upon proof of compliance.
"The right to life and emergency services should have and ought to have been shielded and to the extent that the provisions did not shield or exempt the right to emergency treatment set out on Article 43, they are unconstitutional," they held.
Based on these findings, the bench subsequently gave Parliament a period of 120 days within which they should amend the various sections of the Act found to be unconstitutional.
The bench appreciated the purpose of the challenged legislations but faulted the government for enacting them in haste, which ultimately violated certain values in 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 bench said.
"Let Parliament undertake sensitisation, adequate and inclusive public participation in accordance with the Constitution before enacting the said Act and amend the unconstitutional provisions in terms of this judgment," they said.
Immediate former Health CS Susan Nakhumicha had indicated the ministry placed public notices in one of the local dailies calling for comments and inviting public participation.
But the bench said there was no evidence placed before court to substantiate the said claims.
"In the absence of any evidence, it is our finding that there was no sensitisation of the public having in mind the nature, extent and magnitude of the policy that was to inform the enactment of the bills," they said.
The judges in closing said the required amendments to the Act should be done within 120 days. Within that period the Act will remain suspended.
If the amendments will not have been done by November 10 this year, the bench said the entire Social Health Insurance Fund Act, Digital Health Act and Primary Health Act shall be deemed unconstitutional.
Once the court rendered it's decision, Senior Counsel Fred Ngatia representing the Health ministry made an application to suspend the courts decision regarding the Act.
Justice Mabeya allowed his application and granted stay for 45 days but said the stay will not affect the suspension of Sections 26 and 27 in light of them being unconstitutional.