Court halts mandatory registration of school-going children under SHIF

The government’s plan for mandatory registration of school-going children under the Social Health Insurance Fund (SHIF) has suffered a blow after the High Court temporarily stopped the process.

High Court Judge Jairus Ngaah Thursday directed the registration to remain suspended pending the determination of a petition filed by the Law Society of Kenya (LSK).

In a circular on August 16, Education Principal Secretary Belio Kipsang directed public school administrators to ensure the registration of school-going children under SHIF.

The Law Society of Kenya (LSK) argued that the circular created confusion in learning institutions and was likely to lock out minors from schools.

“Meanwhile, status quo, before the issue of impugned directive or decision of 16 August 2024, shall be maintained pending the hearing and determination of the substantive motion or until further orders of this Honourable Court. It is so ordered,” Justice Ngaah directed.

The judge directed the case to be heard on October 8. The LSK said in the application that the Social Health Insurance Act was declared unconstitutional by the High Court in July, but the decision was suspended to allow the government and Parliament to amend some provisions in the Act, within 120 days.

LSK further said the court directed Parliament to undertake sensitization, and adequate and reasonable public participation in accordance with the constitution before enacting the health laws.

However, Parliament has to date not complied with the directive of the court.

“The decision contained in the circular is entirely illegal and irrational and infringes on the right of the minors in public schools from accessing basic education under the guise of compulsory registration as dependents of their parents based on a non-existent law,” LSK chief executive officer Florence Muturi said.

She said the arbitrary imposition of the decision on such short notice was illegal.

Meanwhile, the Court of Appeal is expected to rule on September 20, on an application by the Ministry of Health seeking to extend the order, suspending the judgment that quashed the health laws, pending the determination of its appeal.

Justices Francis Tuiyott, Abida Ali-Aroni, and Lydia Achode directed the status quo be maintained, pending their ruling on Friday.

Through senior counsel Fred Ngatia, the ministry faulted the High Court for imposing a rigid and inflexible yardstick on the issue of public participation exercise.

He said before the enactment of the three sets of laws, the Ministry of Health had engaged the public and all stakeholders robustly, and all views and comments were considered before SHIA, the Digital Health Act, and the Primary Healthcare Act were enacted.

“It is in the public interest for interim orders to be issued to ensure continuity of the health sector. No conceivable prejudice shall be caused to the 1st respondent (Mr Joseph Enock Aura),” Mr Ngatia said.

Mr Ngatia said it is arguable that the rigid position taken by the trial court was subject to appellate review since any legislative process may require distinct approaches to public participation.