CJ Koome sets up 3-judge bench to hear petition against SHIF

Chief Justice Martha Koome has picked justices Alfred Mabeya, Robert Limo and Fridah Mugambi to hear and determine a petition challenging the Social Health Insurance Fund (SHIF).

The setting up of the three-judge bench follows an order by Justice Chacha Mwita after the National Assembly asked for an expanded bench to hear the petition by activist Enock Aura, saying it raised complex constitutional issues.

The Social Health Insurance Act, the Digital Health Act, the Primary Healthcare Act and the Facility Improvement Financing Act were signed into law by President William Ruto on October 19, 2023.

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the National Health Insurance Fund Act, 1998, (the NHIF Act) which had been in operation for 25 years was completely repealed.

Aura, however, went to court and stopped the implementation of the laws.

The court issued orders suspending the implementation of the Acts and several petitions were filed in court challenging their constitutionality.

The activist argued that the integrated digital health information system violates the right to privacy by storing the data of minors without their consent - one of the questions the expanded bench will determine.

National Assembly Clerk Samuel Njoroge had filed an application and an affidavit pleading for the case to be referred to Koome for the appointment of a three-judge bench to hear it.

Njoroge noted that the new statutes constitute an overhaul of the entire NHIF Act which has been in operation since 1998 and provide for a new, different health insurance framework, which, unlike the NHIF Act, requires mandatory membership by all persons.

He added 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 digitised by unique biometrics. One of the grievances of the petitioner is the "digitisation of human bodies," he also stated in the affidavit.

The three-judge bench will also determine whether, by virtue of section 26(3) of the SHIF Act, the requirement of having children under the Act infringes on their rights under the Constitution.

The bench will also determine whether the registration of children and the unique identification system under the Act violates the constitution, access to healthcare by children in particular.

The National Assembly said Aura's petition raises complex questions of law concerning the extent to which the data of minors and community health promoters will be stored.

Njoroge adds that Section 8 Primary Health Care Act establishes a primary health workforce including "community health promoters" and "healthcare provides" who are to be assigned to each locality for the purpose of facilitating access to and ensuring the effective delivery of community health services.