High Court declares Social Health Insurance Act unconstitutional

The High Court has declared the Social Health Insurance Act unconstitutional and put its implementation on hold for 120 days to allow the government to begin the process of legislating the Act and several others again.

Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi found the Act unconstitutional and nullified it as sought by activist Enock Aura. The Act establishes the Social Health Authority (SHA).

SHA was to replace the National Hospital Insurance Fund (NHIF) and its implementation was to start this month.

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 prompted activist Enock Aura to challenge the implementation of the act in court and the implementation of the laws was temporarily suspended with a conservatory order.

The now-nullified law meant that the NHIF Act of 1998, which has been in operation for 25 years, was completely repealed and provided for a new scheme.

National Assembly clerk Samuel Njoroge defended the SHA saying in an affidavit filed in court, that the authority established a different health insurance framework, which, unlike the NHIF Act, requires mandatory membership by all persons.

Aura 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 set up by Chief Justice Martha Koome was asked to determine.

The petitioner said that Section 47 of the SHIF Act as read with the Digital Health Act, 2023, requires every Kenyan to be digitised by unique biometrics.

One of the grievances of the petitioner is the "digitisation of human bodies" which Aura successfully argued is unconstitutional.

Other grievances included questions of law concerning the extent to which the data of minors and community health promoters will be stored, and determination of who is a health promoter.

While defending the SHA, Njoroge noted 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 was that the SHIF Act, the requirement of mandatory registration of children under the Act infringes on their rights under the Constitution," stated Njoroge.

Other issues raised included the registration of children, the unique identification system under the Act that violates the constitution, and access to healthcare by children in particular.

For instance, Section 8 of the Primary Health Care Act established 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.

Aura argued that the "community health promoters" and the "healthcare providers" were ambiguous, especially on the question of their employer, training, experience, professionalism and integrity in handling the data that was to be collected.

Outgoing Health Cabinet Secretary Susan Nakumicha defended the Acts arguing they supported the implementation of Universal Health Care by the government.