Kenya: Court Suspends Implementation of Social Health Insurance Fund Act, Primary Health Care Act, Digital Health Care Act

(file photo).
28 November 2023

Nairobi — The High Court has halted the implementation of three health Acts by the Ministry of Health pending the hearing and determination of a petition seeking to impede it.

The Petitioner Joseph Aura filed a case arguing that all the three Health Acts contravened the constitution with provisions seeking to deny Kenyans critical rights.

Justice Chacha Mwita issued conservatory orders halting the implementation saying the petition pointed out said important constitutional issues.

"That in the meantime, a conservatory order is hereby issued restraining the respondents, their agents and or anyone acting on their directives from implementing and or enforcing the Social Health Insurance Act, 2023; the Primary Health Care Act, 2023 and the Digital Health Act, 2023 until February 7, 2024," he ruled.

Respondents who include the Ministry of Health are required to file their responses to the petition within 7 days after receiving the pleadings.

"That once served, the petitioner will have 7 days to file and serve a supplementary affidavit, if need be, together with written submissions to the petition, not exceeding 10 pages," Mwita said.

The petitioner raised issues with Section 26(5) of the Social Health Insurance Fund which provides that any person who is registrable as a member shall produce proof of compliance of this Act on registration and contribution as a precondition of dealing with or accessing public services from all levels of government.

"When one is registered, where such person(s) remain(s) not up to date in the remittance of such prescribed dues under the said Act, they will nevertheless ne automatically barred from accessing any, and any such governmental services, thereby creating a constitutionally-barred class of differentiated and destitute underdogs,"the petition read.

Following the gazzement,Social Health Authority (SHA) will replace the National Health Insurance Fund, pegged on the Social Health Insurance Act, 2023.

It also anchors the creation of three funds to cover different types of services that will be managed by Social Health Authority (SHA).

The funds include the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic And Critical Illness Fund

Provision in the SHIF Act stipulates that any person who is eligible to be registered as a member of the national insurance fund will be required to produce proof of compliance to be allowed to access public services.

"Any person who is registerable as a member under this Act shall produce proof of compliance with the provisions of this Act on registration and contribution as a precondition of dealing with or accessing public services from the national government, county government or a national or county government entities," the Act stipulates.

The Social Health Insurance Act stipulates that all non-Kenyans who reside in the country shall be eligible for registration as members of the Fund.

This applies to a non-Kenyan resident ordinarily residing in Kenya for a period exceeding 12 months.

However, a non-Kenyan who intends to enter and remain in the country for less than 12 months shall be required to have travel health insurance coverage.

To ensure punitive measures to curtail corruption are instituted, those suspected of defrauding the health insurance scheme, through false statements risk being jailed for five years or fined Sh1 million or both.

The defunct National Health Insurance Fund (NHIF) is expected to transfer all the cash balances to the Social Health Insurance Fund.

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