MPs want health insurance fund case heard by three judges

The National Assembly wants the case challenging the proposed Social Health Insurance Fund (SHIF) to be heard by a bench of not less than three judges.

Clerk Samuel Njoroge filed an application pleading for the case to be referred to Chief Justice Martha Koome to constitute a bench to hear and determine the matter.

He said the matter, currently before Justice Chacha Mwita, raises pertinent constitutional issues.

One of the questions the bench will be required to determine is whether the integrated digital health information system violates the right to privacy by storing the data of minors without their consent.

President William Ruto assented to the SHIF Act, Digital Health Act, Primary Healthcare Act and Facility Improvement Financing Act on October 19 last year.

This meant that the law setting up the National Health Insurance Fund Act, 1998, (the NHIF Act) which had been in operation for 25 years was completely repealed.

However, several petitions were filed in court challenging the constitutionality of three statutes.

Njoronge says that the new statutes that are being contested in court include an overhaul of the entire NHIF Act and provide for a whole new, different health insurance framework, which, unlike the NHIF Act, provides for mandatory membership by all persons.

He adds that the Digital Health Act establishes an integrated digital health information system which is a new phenomenon in the health insurance sector.

"The main issue presented by the Petitioner is Section 47 of the SHIF Act as read with the Digital Health Act, 2023, which, in the Petitioner's view, requires every Kenyan to be digitized by unique biometrics. One of the grievances of the Petitioner is the digitization of human bodies," states Njoronge in an affidavit filed in court.

The court is also called upon to determine whether by virtue of section 26(3) of the SHIF Act, the requirement of having children under the Act infringes on their rights.

"And whether the registration of children and the unique identification system under the Act, violates the constitution, particularly, access to health care by children," he adds.

The petition had been filed by Enock Aura last year and an order was subsequently issued suspending implementation of the Act.

However, Health Cabinet Secretary Susan Nakhumicha was aggrieved and appealed at the Court of Appeal.

The Appellate Court then proceeded to suspend 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.

The court also put on hold section 27 (4) which provides that a person shall only access healthcare services if their contributions to the SHIF are up to date.

The National Assembly in its fresh application says the petition by Aura raises complex questions of law concerning the use of data of minors.

In the affidavit, Njoroge says Aura finds issues with the centralized data systems under the Digital Health Act and observes that no concepts for good digital security exist at the moment.

Njoroge further explains that the Primary HealthCare Act, Section 8 establishes, a primary health workforce including "community health promoters" and "healthcare providers" who are to be assigned to each locality to facilitate access to and ensure the effective delivery of community health services at the community.

Based on this, he says Aura has raised an issue on the constitutionality of the said community health promoters, whether their roles infringe on Article 31 on the right to privacy.

Justice Mwita directed the application be served on all parties.

He will issue directions on February 23, when the main case will be mentioned.