Why governors opposed sections of new health Act

Governors have opposed some sections of the Social Health Act arguing that they are unconditional as they purport to usurp the roles of the county governments in the provision of health services to the citizens.

Unnecessary burden 

The Council of Governors further said in submissions filed in court that some provisions in the Act will also impose an unnecessary burden on the country and strain the already scarce resources.
The CoG submitted that sections 26(5), 2791)(a), 27(4) and 47(3) of the Act are unconstitutional and unlawful and ought to be quashed. 

According to the governors, Section 26(5) of the Social Health Insurance Act, which requires proof of compliance with the Act as a pre-condition to access public services from the government is illegal as it seeks to hinder fundamental rights and freedoms of the citizens.

“We submit that this amounts to an unreasonable limitation of the constitutionally guaranteed and fundamental freedoms,” the CoG submitted.

The case failed to proceed yesterday (Wednesday) for hearing as some parties were yet to file responses or submissions as directed by High Court judge Chacha Mwita last year. 

The case will now be heard on February 23. 

The implementation of the Act had been suspended in November last year following a petition by Joseph Enock Aura but the Ministry of Health successfully petitioned the Court of Appeal to lift the suspension, pending the determination of its appeal.

A bench of three judges of the Appellate court, however, suspended three sections of the laws including section 26(5) which makes registration and contribution a precondition for accessing public services from the national and county governments or their entities.

The court also put on hold Section 27(4) which provides that a person shall only access healthcare services where their contributions to the SHIF are up to date and active and Section 47(3), which obligates every Kenyan to be uniquely identified for purposes of provision of health services.

The CoG further submitted that Section 47(3) of SHIA violates the constitutional rights of citizens to health by requiring every Kenyan to be uniquely identified using biometrics for purposes of health services. The governors said the right to health is a fundamental right.

Critical concerns 

The governors also said the Ministry of Health failed to consider critical concerns raised by the Council of Governors during the law-making process. 

These include sections 27(1)(d) and 27(2)(c) of the SHI Act requiring county governments to contribute towards the fund.

Financial burden 

“It is our submission that these mandated financial commitments impose additional financial burden on county governments, which may adversely impact their ability to efficiently carry out essential functions and services,” said the governors.

The mandatory contribution by the county governments as provided in the sections potentially leads to a strain on the counties' financial resources, the CoG said. 

“We also submit that the Primary Health Care Act, 2023 usurps the role of the county governments and jeopardizes the constitutionally assigned health service delivery function in violation of the Fourth Schedule of the constitution,” added the CoG. 

Technical directorates 

The governors submitted that the role of the national government is defined and limited to developing and maintaining an organizational structure of the Ministry at the national level consisting of technical directorates.

“As such, the 1st respondent (Ministry of Health) cannot purport to prescribe for county governments the establishment of various governance and administrative structures,” the submissions read.

National guidelines 

Some sections complained of required county governments to establish governance and administrative structures including community health units in accordance with national guidelines.

Mr Aura wants the SHI Act, 2023, Primary Health Care Act, 2023 and Digital Health Act, 2023, which replaced the National Health Insurance Fund (NHIF), quashed arguing that it is unconstitutional.

The draft Social Health Insurance (General) Regulations, 2023 proposes 2.75 percent deductions on employees gross pay. 

In the new laws, the government is also required to build at least one health facility for every 5,000 of its citizens under the ambitious Universal Health Care (UHC) programme. 

The Primary Health Care Act, provides for the construction of community health units across the country to facilitate delivery and access to primary health care services at the grassroots.
 
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