A human rights defender has gone to court to stop the implementation of the newly enacted Social Health Insurance Act, arguing that it is unclear on whether the universal health coverage funds launched by President William Ruto would benefit all Kenyans or only those who pay premiums into the scheme.
Mr Dominic Oreo, the petitioner, also wants the High Court to issue orders declaring that the failure to absorb all employees of the National Health Insurance Fund (NHIF) into the newly established funds is discriminatory, amounts to unfair labour practices and is in breach of the Constitution.
Mr Oreo says the Act fails to provide a process for defining the health services covered by the scheme.
"The lack of a systematic, evidence-based approach for designing an affordable and cost-effective benefits package reaffirms the petitioner’s assertion that the Act is half-baked," he said.
Mr Oreo also claims that the law imposes a mandatory contribution of 2.75 per cent on employees, which is excessive for Kenyans who are already burdened with taxes and deductions.
The Act abolishes the current NHIF and establishes three new funds - the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic and Critical Illness Fund.
During the signing of the bill, President Ruto said the Primary Healthcare Fund would fund services in health facilities at levels 1 to 3, while the Social Health Insurance Fund would cover services at levels 4 to 6.
Dr Ruto further explained that the Emergency, Chronic and Critical Illness Fund will take care of emergency and chronic illness costs once the social health insurance is exhausted.
Through his lawyer Robin Bundi, Mr Oreo says it is unclear and unsustainable how the proposed social health insurance scheme will be financed through premium contributions, which he says are unreliable for mobilising health resources in a country with significant poverty and informal labour markets.
"An order of certiorari to bring into this court and quash the Social Health Insurance Act 2023 for failing to adhere to foundational tenets of law-making," Mr Oreo said.
Mr Oreo says the scheme is designed to benefit the rich and exacerbate inequalities, with government funding benefiting the non-poor as participation in the scheme is heavily skewed towards the rich.
He also says the law fails to outline the role of county governments and the potential impact of the law on counties.
Define the responsibilities
"It is crucial to clearly define the responsibilities and roles of county governments in the implementation of the act. Devolution is entrenched in our constitution and this Act goes against grain and import of Article 2(6) and 174 of the Constitution," he said.
Mr Oreo goes on to say that Section 41 (1) of the Act is ambiguous, particularly in relation to what constitutes a "breach", "tampering", "abuse of privilege" and the definition of "privilege" when dealing with health data.
He says further clarification and definitions are essential to ensure a common understanding of these terms and to establish the legal boundaries for handling health data.
"The Act needs to further highlight the consequences of these actions," he said.
The Nairobi resident says the Act proposes to outsource claims handling, to third parties thus introducing inefficiencies and perverse incentives.
"Third-party claims management businesses will levy a fee, raising administrative costs unnecessarily, creates a conflict of interest and seeks to exploit Kenyans," he said.
Mr Oreo says that the Act makes participation in the scheme compulsory without clearly setting out ways and means of enforcing participation.
He argues that the Act negates the fundamental meaning of Articles 43(1) and 56 of the Constitution by failing to ensure that every Kenyan has access to the highest attainable and affordable health care.
Furthermore, he says, the scheme does not provide mechanisms and reliable ways of classifying members. This means testing will be error-prone, with some undeserving individuals being classified as poor, while some deserving poor are excluded.
"The law fails to articulate ways to collect revenue from the informal sector which are practicable. The notion that means-testing might be used to estimate income levels of informal workers to inform premium determination is unfeasible and leads to outright inequity," Mr Oreo said.
