The Ministry of Health (MoH) has urged the Court of Appeal to extend an order suspending a judgement that quashed the health laws , pending the determination of its appeal.
Appearing before a bench of three judges of the appellate court, MoH, through senior counsel Fred Ngatia, submitted that the High Court imposed a rigid and inflexible yardstick on public participation exercise.
He said before the enactment of the three set of laws, the Ministry of Health had engaged the public and all stakeholders robustly and all views and comments were considered.
Mr Ngatia said no single complaint was tendered before the High Court by an individual or stakeholder, regarding the lack of public participation.
“It is 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.
Justices Francis Tuiyott, Abida Ali-Aroni and Lydia Achode directed the status quo be maintained, pending their ruling on September 20. This means that the Social Health Insurance Act, the Digital Health Act and the Primary Healthcare Act remain in force and in operation, until further directions are issued by the court.
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.
While quashing the laws last month, the High Court faulted the government for rushing to pass the laws without meaningful public participation.
Justices Alfred Mabeya , Robert Limo and Dr Freda Mugambi said in as much as they appreciated the noble intention, the government disregarded clear constitutional tenets which binds them.
The judges, however, suspended their decision for 45 days to allow the government appeal against the quashing of the Social Health Insurance Fund Act, 2023, Digital Health Act, 2023 and the Primary Health Act, 2023.
Mr Ngatia submitted before that SHIA was enacted to establish the framework for managing social health insurance, providing for the establishment of the Social Health Authority, and giving effect to Article43(1)(a) of the constitution.
He explained universal health coverage cannot be realised through voluntary contribution and that with that realisation, legislative measures to sanction or compel compliance is necessary.
“It is our submission that the holding by the trial court raises sufficiently arguable grounds which will be determined by this court at the right at the hearing of the appeal,” he said.
Parliament also filed its appeal and argued that the court erred in its finding that public participation was inadequate. In the appeal, the National Assembly said the court created confusion in the entire Health sector by suspending the Social Health Insurance Act, without considering the lacuna that will exist as the NHIF Act was repealed.
In the High Court decision, the judges agreed that there was evidence that the repealed NHIF failed to realise the rights guaranteed to Kenyans and the Act was also unsustainable.
The judges added that evidence on record shows that the principle of solidarity was lacking in the NHIF and the continued voluntary contribution was unsustainable.
“It is evident that unless some sort of compulsion or sanction is applied, then the realization of the rights under Article 43(1)(a) will be a mirage,” said the judges, adding that the objectives of section 26(5) and 27of SHIA are noble.
