Kenya’s High Court has declared the laws establishing the Social Health Insurance Fund (SHIF), unconstitutional. However, the court offered a lifeline, suspending its decision for 45 days.
A three-judge bench led by Presiding Judge Justice Alfred Mabeya and justices Robert Limo and Dr. Freda Mugambi ruled that Parliament did not adequately involve the public in crafting the laws – Social Health Insurance Fund Act, 2023; Digital Health Act, 2023 and Primary Health Act, 2023.
Sections of the Social Health Insurance Act requiring mandatory contributions to access public services and healthcare were deemed unconstitutional. This violates the right to emergency medical care enshrined in the Kenyan Constitution.
For instance, they cited sections 26(5) and 27 (4) of the Act. Section 26(5) makes registration and contributions a precondition for dealing with or accessing public services. On the other hand, section 27(4), provides that a person shall only access healthcare services where their contributions to the SHIF are up-to-date and active.
As a result, the court found the scheme unfairly burdened salaried individuals with contributions, creating an unequal system.
“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.
The Reprieve
The Attorney General’s office has 45 days to appeal the decision. Consequently, Parliament has 120 days to amend the Act to address the court’s concerns. This includes conducting proper public participation, revising sections limiting access to healthcare, and ensuring fairer contributions.
“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,” the judges 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.”
The social healthcare fund requires every household in Kenya to pay 2.75 per cent of its monthly income to fund universal health coverage (UHC) for all Kenyans.
This decision comes after the High Court previously declared three other Acts related to Universal Health Care unconstitutional.
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