Health CS, Parliament to know fate of Health Act in September

The Court of Appeal will on September 20 rule on whether it will suspend a decision of the High Court that declared as unconstitutional the Social Health Insurance Act.

The Act establishes the Social Health Authority which is mandated to manage three funds established under it.

In July this year, a three-judge bench of the High Court found it to be unconstitutional and granted parliament 120 days to make amends to the Act.

Justices Alfred Mabeya, Robert Limo and Fridah Mugambi said Parliament should undertake adequate public participation in accordance with the constitution before enacting the same act and amending the unconstitutional provisions. This they said should be done within 120 days.

"If they fail to, the act shall remain suspended," they said.

But CS Health, the National Assembly and the Senate being dissatisfied with the decision of the High Court filed a notice of appeal.

They have since asked the appellate court to suspend the High Court decision as they pursue an appeal over the same.

Some of the grounds of appeal are that the High Court made a mistake in finding that they were required to undertake public sensitisation before enacting the three statutes.

They argue that the court failed to consider that there was extensive public participation before the enactment.

They told Curt of Appeal Judges Francis Tuiyot, Lydia Achode and Abida Ali Aroni that the order of suspension means that various services, agencies and funds established under the acts are disbanded.

"Given the suspension by the high court, there is no fund or agency in force to implement universal healthcare or right to health. This is not in the public interest as the right to health is a fundamental right which cannot be suspended even for a day," the court heard.

The high court in their judgement delivered last month said it was 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 realise with the challenged acts," they said.