Blow for state as Court of Appeal rejects request to lift SHIF implementation ban

The Court of Appeal has rejected the government's request to lift High Court orders that declared three health laws, including the Social Health Insurance Fund (SHIF), unconstitutional.

This ruling means the High Court's decision, which mandates the government to suspend the implementation of these laws and address issues of public participation, remains in effect.

The Court of Appeal has opted to delay its decision until the validity of the High Court’s orders is fully resolved. Although the High Court had granted a 45-day stay of its ruling to allow the government time to comply, the government's attempts to overturn these orders have faced delays.

Judges Francis Tuiyot, Lydia Achode, and Abida Ali of the Court of Appeal expressed concerns that fully endorsing the High Court’s decision could result in significant public harm and increased costs. They also noted that there is no immediate crisis, as the NHIF scheme continues to operate as a transitional measure.

The now-nullified Social Health Insurance Act aimed to replace the NHIF Act of 1998, which had been in operation for 25 years, with a new scheme. The National Assembly clerk Samuel Njoroge defended the Social Health Authority (SHA), arguing that it introduced a new health insurance framework requiring mandatory membership, unlike the NHIF Act.

Aura contested that the integrated digital health information system violated privacy rights by storing minors' data without consent. The petition also raised issues about the constitutionality of biometric digitisation requirements and the handling of minor and community health promoter data.

Njoroge countered that the Digital Health Act established an integrated digital health information system, a novel approach in the health insurance sector, and addressed concerns about children's registration and unique identification.

Ambiguity

Aura also questioned the ambiguity surrounding "community health promoters" and "healthcare providers" in the Primary Health Care Act, particularly regarding their employment, training, and data-handling responsibilities.

Former Health Cabinet Secretary Susan Nakhumicha defended the Acts, asserting they were crucial for advancing Universal Health Care.

The High Court ruled that the Social Health Insurance Act was unconstitutional and put its implementation on hold for 120 days to allow the government to address legislative issues and reintroduce the Act.

Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi nullified the Act based on a challenge by activist Enock Aura. The Social Health Insurance Act, along with 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. Aura's challenge led to a temporary suspension of the laws through a conservatory order.

The High Court had highlighted that certain provisions of the Social Health Insurance Act violated Article 43 of the Constitution, which mandates unique identification for health service provision. The Court of Appeal is set to reconvene on September 20, 2024, to determine whether to follow the High Court's orders.

Compounding the situation, delays in procuring necessary ICT systems, developing comprehensive health benefits packages, and financing challenges—particularly due to the volatility of the informal sector, which accounts for over 70 per cent of SHIF revenue—have further complicated the SHIF's implementation. Efforts continue, including the enlistment of 7,876 healthcare providers on the Social Health Authority (SHA) website.