The deductions are coming: State’s major win on new health plan
The National Health Insurance Fund (NHIF) building. The NHIF will be replaced by the Social Health Insurance Fund.
What you need to know:
- The Court of Appeal judges observed that the three statutes commenced on November 22, 2023, upon repeal of the NHIF Act, and all functions of the NHIF were to be taken over by the Social Health Insurance Authority.
- In an affidavit filed in court Medical Services Permanent Secretary (PS) Harry Kimtai told the court that the Ministry will demonstrate the hardship likely to be caused by the High Court judgement.
Kenyans will be deducted 2.75 percent of their monthly income starting October as planned by the government after the Court of Appeal extended an order suspending a decision quashing the health laws.
In a boost to the government’s plan to roll out the Social Hospital Insurance Fund (SHIF), a bench of three judges of the appellate court ruled that the appeal by the Ministry of Health was arguable.
Justices Francis Tuiyott, Abida Ali-Aroni and Lydia Achode said the argument by the Ministry of Health of how impossible it was to undertake public participation within the 120 days as directed by the High Court.
The judges also said the submission that it was also impossible to conduct public participation on laws that have already been enacted, was also valid.
“While we make no call on the merit of these two arguments, we do not think them to be trivial. In a word, the appeal is arguable,” the judges said.
The High Court declared in July that the Social Health Insurance Act (SHIA), Primary Health Care Act, and Digital Health Act, which replaced the National Hospital Insurance Fund (NHIF) illegal for not subjecting them to public participation.
Justices Alfred Mabeya, Robert Limo and Fred Mugambi, however, suspended their judgment for 120 days to allow parliament to undertake sensitisation and sufficient and inclusive public participation, before enacting the laws.
The Ministry through senior counsel Fred Ngatia submitted that the 120 days would not be sufficient to undertake public participation so as to save the Acts.
Further, Mr Ngatia wondered whether the post-enactment public participation which the High Court directed can in fact validate laws already found to be unconstitutional.
“It therefore seems to us that if stay is not granted, then there is a real likelihood that the 120 days will lapse and the default declaration of unconstitutionality will automatically kick in,” the judges said.
The Court of Appeal judges observed that the three statutes commenced on November 22, 2023, upon repeal of the NHIF Act, and all functions of the NHIF were to be taken over by the Social Health Insurance Authority.
“We reach this decision because the statutes have been with us for nine months and to allow the framework under which the health sector is operating to revert to the old framework with the possibility of it returning back again to the current framework (in the event of the appeal succeeding) is to put this undeniably crucial sector in a state of flux and uncertainty,” the judges added.
In an affidavit filed in court Medical Services Permanent Secretary (PS) Harry Kimtai told the court that the Ministry will demonstrate the hardship likely to be caused by the High Court judgement.
Mr Kimtai added that the laws have been in operation during the last six months without any complaint and they are the main pillars of universal health care, and in their absence, the health service shall be in jeopardy or collapse altogether.
The petitioner Mr Joseph Enock Aura opposed the application arguing that the PS has not provided any evidence of the alleged health crisis.
Through lawyer Harrison Kinyanjui, Mr Aura maintained that there will be no loss suffered because the laws provided a one-year transition period from NHIF to SHIA, and the period has not expired.
