Introduction
The Primary Health Care Act No. 13 of 2023 (“PHCA”), Digital Health Act No. 15 of 2023 (“DHA”) and Social Health Insurance Act No. 16 of 2023 (“SHIA”), (the impugned legislations) were enacted by the legislature in October 2023. The legislation was slated to repeal the National Health Insurance Act (NHIF) which has been in place since 15th February 1999.
The impugned Acts were enacted for the realization of the highest attainable standard of health as envisaged in the Constitution of Kenya 2010(COK) under Article 43. The shift from the National Health Insurance Fund to the Social Health Insurance Fund commenced on 1st July 2024 with registration of membership to the Social Health Insurance Fund.
However, the enactment of the Acts resulted in the institution of this petition in the High Court (Constitutional and Human Rights Division).
The Petition.
The Petitioner challenged the constitutionality of the impugned legislation as Parliament did not conduct adequate and extensive public participation before enactment of the three statutes.
The petitioner also argued that Sections 26(5) and 27(4) of the SHIA were unconstitutional as they restrict access to health only to registered and paid-up members while section 26(3) would facilitate exploitation of children as it required digital registration for those born after the enactment of the Act.
In addition, the petitioner argued that there was no concurrence between the Speakers of the 2 Houses with respect to the three Bills which concerned county governments.
Further, the petitioner criticized the PHCA for assigning healthcare responsibilities to untrained Community Health Promoters.
Lastly the petitioner took issue with Section 47(3) since it requires Kenyans to undergo digitization using unique biometrics, a provision that relies on the provisions of Registration of persons act (51)(g) which was declared unconstitutional.
The petitioner sought various declarations including declaration of the unconstitutionality of the three statutes.
The Respondents opposed the petition and argued that the proper legislative procedures, including adequate public participation, were followed. The Respondents maintained that the challenged laws did not contravene any constitutional provisions.
Court’s determination
In determining the constitutionality of the impugned legislations, the Court considered the following issues.
Whether there was breach of Articles 10 and 118 of the Constitution on participation in the enactment of the impugned legislations
Articles 10, 118 and 232 of the Constitution prominently enshrine the concept of public participation as a cornerstone in governance. The Court observed that the spirit of public participation is to the effect that decisions affecting the people should not be made without their input.
Further the Court set out the bare minimum requirements that are needed in public participation which include proper sensitization, sufficient notice, access to information, inclusivity, transparency, integrity, consideration of public views and explanation for rejected views.
The Court observed that only stakeholders were adequately engaged in the public participation process. It also noted that no evidence was given showing that there was sensitization of the bill to the ordinary members of the public or that there were comments tendered by the public.
The Court, upon analyzing the evidence held that all the impugned legislation failed to meet the constitutional requirement of public participation and the bare minimum requirements the Court had considered.
Whether the process of enactment of the impugned legislations by the National Assembly and Senate was irregular:
The Petitioner argued that the process of the enactment of the impugned legislation was in irregular on four main aspects: it contravened the provisions of Statutory Instruments Act (SIA), there was significant reduction of the period of publication, there was no concurrence with the speakers of both houses under article 110(3) and that the voting process was not proper.
On the issue of the impugned act being subject to the provisions of SIA the Court aligned itself with the position of the Attorney General and the National Assembly who submitted that impugned legislations are parliamentary enactments and not statutory instruments and as such not subject to the Statutory Instruments Act.
On the second aspect, the National Assembly argued that it has the discretion under the standing orders to reduce the publication period for bills when necessary. The Court held that while Parliament does have the discretion to reduce the publication period of bills, this discretion should be exercised judiciously. However, given the significance of the impugned legislation, Parliament did not exercise reasonable or proportionate judgment in reducing the publication period to six days for the Digital Health Bill and Social Health Insurance Bill, and three days for the Primary Health Care Bill.
In analyzing the provisions of Article 110 (3) of the Constitution of Kenya, the Court maintained that the Article is couched in mandatory terms. The concurrence of the Speakers of the 2 Houses with respect to Bills concerning counties is mandatory. The Court summarily held that by proceeding in haste both houses overlooked procedural safeguards that guarantee the integrity of legislative process.
Whether Section 26(5) and 27 (4) of the Social Health Insurance Act (SHIA) are inconsistent with the Constitution.
The Petitioner challenged the above provisions on the grounds that they lock out people from accessing emergency medical treatment contrary to Article 43(2) of the Constitution. Section 26(5) makes registration of people a prerequisite for accessing public by requiring proof of compliance with the SHI Act as a precondition to access public services from the government which jeopardizes fundamental rights. On the other hand, section 27(4) of SHIA, requires active and up to date contribution as a precondition to access health care services which poses a threat to the right to access emergency health care.
In determining the constitutionality of the impugned sections, the Court must determine the object and purpose of the impugned statute. In its analysis, the Court found that the primary objective of the Social Health Insurance Act was to give effect to Article 43(1)(a) of the Constitution. The Court established that the former legal framework under NHIF had failed to realize those rights.
However, the Court found that to the extent that section 26(5) and 27 of SHIA had not made exception to the right to emergency medical services, the sections failed the test of constitutionality.
Whether Section 38 of the SHI Act 2023 constitutes a violation of Articles 201, 205 and 206(1) of the Constitution
The Petitioner argued that section 38 of the SHIA violates the principles of public finance as enunciated in Article 201 of the Constitution as the National Assembly and the Senate failed to consult the Commission on Revenue allocation before enacting the legislations as required under Article 205 of the constitution, since they dealt with financial matters concerning County Governments.
The Court found that consulting the Commission was crucial for informed decision making and ensuring fiscal responsibility and equity and it was imprudent to reduce the Commission to a bystander.
The Petitioner also contended that Article 206(1) was breached by Section 38 of SHIA since it eliminated the requirement to return any unused funds from the Social Health Insurance Fund (SHIF) to the Consolidated fund. The initial section 38 provided for investment of monies of the Authority which were not immediately required in a reputable bank while the current section 38 provided that all receipts, earnings and accruals to the authority and balance of the funds at the close of the year shall be retained by the Authority for the purposes of the funds.
The Court found that the current section 38 was introduced without the benefit of public participation, as is required in financial matters, and therefore failed the test under Article 201(a) of the Constitution and was therefore unconstitutional.
Final determination
In its final determination, the Court found that the enactment process of the impugned legislation did not comply with the constitutional requirement on public participation. The Court also held that some of the sections of the Social Health Insurance Act were unconstitutional.
The Court therefore directed parliament to undertake sensitization, adequate, reasonable, sufficient and inclusive public participation in accordance with the Constitution and amend the unconstitutional provisions in terms of the Court’s judgement. In addition, the Court has set the compliance period for the above directive for 120 days from the date of the judgment within which period the Acts shall remain suspended.
The Court has also directed that should parliament be in default, the entire Social Health Insurance Fund Act, 2023; the entire Digital Health Act,2023 and the entire Primary Health Act, 2023 would be declared unconstitutional.
Conclusion.
The implication of the Court’s judgement is that the registration of membership to the Social Health Insurance Fund has been suspended until parliament regularizes the process of the enactment of the Acts.
If Parliament regularizes the enactment process of the three statutes, the legislations will potentially revolutionize the health sector in Kenya. This transformation would ensure a more efficient, accessible, and equitable healthcare system, significantly enhancing the right to the highest attainable standard of health for all Kenyans.
This alert is for information purposes only and is provided for general purposes only and does not constitute legal advice. Should you have any questions or need legal advice, please contact us on info@jkkibicho.co.ke.
Contributors:
Susan Rigaga – Principal Associate
Brenda Gitonga – Trainee Advocate
