- A three-judge bench pointed out that some rights had been limited in the set of laws.
- MPs remained non-committal in providing the cash, citing the failed Finance Bill, 2024.
Image: file
Afya House has requested MPs to allocate at least Sh100 million for a fresh round of public participation on the social health insurance and other UHC laws that the courts recently declared unconstitutional.
Medical Services PS Harry Kimtai wants the National Assembly Health Committee to consider the allocation in the first supplementary estimates currently before MPs.
He told a sitting of the committee at Parliament Buildings on Wednesday that the Sh100 million would enable the department to conduct public and stakeholder sensitisation as directed by the courts recently.
The High Court nullified the Social Health Insurance Act, of 2023, which had replaced the National Health Insurance Fund, on grounds of insufficient public participation.
A three-judge bench of Justices Alfred Mabeya, Robert Limo, and Fredrick Mugambi also nullified the Primary Healthcare Act, of 2023, and the Digital Health Act, of 2023.
The judges gave Parliament 120 days to make the necessary amendments. During this period, the laws will remain suspended.
In its ruling, the three-judge bench pointed out that some rights had been limited under the Acts of Parliament President William Ruto seeks to use to anchor his health legacy.
MPs, however, remained non-committal in providing the cash, citing the failed Finance Bill, 2024.
Endebess MP Robert Pukose, who is the chairperson of the National Assembly Committee on Health, asked the state department to accept that budgets are being cut.
Pukose told the department chiefs that the withdrawal of the Finance Bill 2024, makes it difficult to commit funds.
“Due to the failed tax law, we must rationalise the budget to take care of the shortfalls,” the MP said.
Estimates by the National Treasury which MPs are considering show that the department is set to lose Sh7 billion from its initial budget of Sh98 billion.
“The budget cuts affect everyone, not just the President and MPs. It impacts your ability to deliver services to the people of Kenya,” Pukose said.
This was after the PS told the lawmakers that the ministry intended to appeal the court's decision to suspend the health laws after the 45-day stay order on implementation expires.
PS Kimtai said the ministry had reviewed the ruling and believed there were sufficient grounds to appeal some of the directives issued.
“We’ve agreed to form a joint team from the ministry, Parliamentary Service Commission, and the Attorney General to strategise on how to appeal and conduct public participation,” he said.
Kimtai said the plan is to lodge an appeal and conduct public participation and sensitisation on the suspended laws.
“So far, we’ve agreed to use this two-pronged approach,” he said in the push for more funds.
Among the sections the judges questioned included the precondition that only registered persons would access public services at national and county governments.
Section 27(4) of the Social Health Insurance Act stipulates that a person can only access healthcare services if their contributions to the SHIF are up-to-date and active.
The judges said these sections could not withstand constitutional scrutiny because they did not make exceptions for the right to emergency medical services.
They held that the provisions of the law violate Article 43 of the constitution, which guarantees every Kenyan the right to health services.
“The precondition set out in those two provisions infringes on the right to access emergency services, while the state aims to realise this right with the challenged acts,” the judges said.
Recently, a Senate committee recommended the annulment of the regulations that were to help the Ruto administration operationalise the ambitious health insurance plan.
The regulations include; Social Health Insurance (General) Regulations, 2024, and Social Health Insurance (Tribunal Procedure) Rules 2024.
Senators said the regulations are not in line with the constitution. The transition from the current NHIF system to the new fund has also been cited as a grey area the ministry is yet to address.
They held that the Ministry of Health could not demonstrate whether it factored public view and that of the Council of Governors in the regulations.
The new health plan was set to be rolled out on July 1, but was pushed to October. It may now be delayed further due to emerging issues, including a lack of cash for public participation on the set of laws.