• One of the cases has been filed at the constitutional and human rights division while the other is before the Employment and Labour Relations court.
• It is barely two days since President William Ruto signed into law four Bills that will steer implementation of the Universal Health Coverage.
Image: PPS
The Social Health Insurance Act is set to come under serious scrutiny as two petitions have already been filed at the Milimani law courts challenging its implementation.
It is barely two days since President William Ruto signed into law four Bills that will steer implementation of the Universal Health Coverage.
The laws include the Digital Health, Facility Improvement Financing, Primary Health Care and Social Health Insurance Acts.
Dominic Oreo, who describes himself as a human rights defender, wants the Social Health Insurance Act and the Digital Health Act scrapped.
He says both have grave and serious ramifications on Kenyan workers, especially those under NHIF who are to be absorbed to the new scheme.
He accuses the National Assembly, the Attorney General and CS Health Susan Wafula (respondents) of flouting all provisions on labour practices and employment laws of the country in the making of the two Acts.
“The two pieces of legislation have clauses that seek to transfer and absorb NHIF employees in a skewed discriminatory and subjective manner,” he says.
He also argues that the privacy and data of Kenyans stands exposed by the ‘vague provisions’ in the Act which leave members of the scheme open to exploitation, breach of their privacy and harassment.
Ideally, the creation of the Social Health Insurance Act has disbanded the National Health Insurance Fund and replaced it with three new funds.
They include the Primary Healthcare Fund, Social Health Insurance Fund and Chronic Illness and Emergency Fund.
This will come into force on a date designated by the Health Cabinet Secretary through a notice in the Gazette.
“This will undoubtedly render thousands of workers jobless as the Act has not set out criteria for sacking or absorbing the NHIF staff which is contrary to article 41 of the Constitution,” Orero says.
It is part of the reason why he seeks to stop implementation of the Act, saying the respondents failed to adhere to foundational tenets of law making.
For instance, he explains that the Social Health Insurance Act is unclear as it does not expressly state whether the newly introduced funds will benefit all Kenyans or only those who pay into the social health insurance scheme.
The funds are the Primary Health Care Fund and the Emergency and Chronic Care fund.
The social health insurance scheme, he argues, is discriminatory as it seeks to benefit the rich.
“It is unclear and unsustainable how the proposed social health insurance scheme will be financed through premium contributions which are unreliable for healthcare resource mobilisation in a country with poverty and informal labour markets,” he argues.
He contends that the social health Act makes participation in the scheme mandatory without clearly mapping out ways and means to enforce participation.
“The scheme does not provide mechanisms and reliable ways to classify members,” he says.
He argues that the mandatory contribution of 2.75 per cent from employees is excessive as Kenyans are already burdened with taxes and deductions.
In addition, he says, the Act sets out punitive and excessive penalties for defaulters hence making it very difficult for the poor to access the services and negating the very primary objective of the scheme.
Regarding the Digital Health Act, Orero says there is an ambiguity on whether data breaches should be reported to the Data Protection Commissioner or the Cabinet Secretary, who holds custodianship of health data as outlined in the Act.
The Act, he says, lacks information on data handling, particularly addressing concerns related to data misuse.
He is apprehensive that there is a risk data will be abused or invaded by third parties as the Act does not provide or specify standardised formats for obtaining and recording consent.
“It is crucial to have clear provisions and guidelines within the Act to prevent unauthorised access, sharing, or misuse of health data and to outline the consequences for such actions,”
The Digital Health law aims at promoting telemedicine and digitisation of health services, hence doing away with the present written transactions.
The Social Health Insurance law aims at abolishing the National Health Insurance Fund while creating the three new funds.
Under this Act, the government will set up a prepaid mechanism for funding the healthcare system to avoid unpredictable out-of-pocket expenditures for ailing Kenyans at the point of care.
One of the cases has been filed at the constitutional and human rights division while the other is before the Employment and Labour Relations court.