The High Court has declared the Social Health Insurance Fund unconstitutional.
While delivering their judgement, Justices Alfred Mabeya, Robert Limo and Friday Mugambi gave Parliament 120 days to make amends to the said Act.
The three-judge bench said parliament should undertake adequate public participation in accordance with the constitution before enacting the same act and amending the unconstitutional provisions.
"This should be done within 120 days. If they fail to, the Act shall remain suspended," they said.
It was the court's finding that the programme had burdened a few salaried individuals, thus creating a disparity in the contribution.
"We are prepared to allow Parliament to redeem itself and save the laws. The breaches that tainted the laws are redeemable within our findings and can be corrected," said the bench.
"Let Parliament undertake sensitization, adequate and inclusive public participation in accordance with the constitution before enacting the said acta and amend the unconstitutional provisions in terms of this judgement."
The amendments they said should be done within 120 days. Within that period the Act will remain suspended.
The three-judge bench said it is clear that some rights under the Act have been limited.
They cited sections 26(5) and 27 (4) of SHIA.
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 exceptions to the right to emergency medical services, the same cannot stand the test of constitutionality.
This is so because 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 emergency services on one hand while it is the same right that the state aspires to realize with the challenged acts," they said.
