Court stops implementation of three Health Acts

The court has issued conservatory orders against the implementation of three health Acts by the Ministry of Health pending the determination of a petition filed by Joseph Aura.

Delivering the orders, Justice E.C Mwita said he was satisfied that the petition raises important constitutional and legal questions that deserve urgent and serious consideration.

"That in the meantime, a conservatory order is hereby issued restraining the respondents, their agents and or anyone acting on their directives from implementing and or enforcing the Social Health Insurance Act, 2023; the Primary Health Care Act, 2023 and the Digital Health Act, 2023 until February 7, 2024," the judge ruled.

He directed that the pleadings be served on the respondents immediately and that they file their responses to the petition within 7 days after service.

"That once served, the petitioner will have 7 days to file and serve a supplementary affidavit, if need be, together with written submissions to the petition, not exceeding 10 pages," he said.

"That the respondents will then have 7 days after service to file and serve written submissions to the petition, not exceeding 10 pages each."

The Social Health Insurance Act, of 2023 among other things provides for the extension of health insurance to all Kenyans based on member contributions, with government-subsidised coverage for the poor.

It also mandates the creation of three funds to cover different types of services and a new government agency to manage it all.

These are the Primary Healthcare Fund, the Social Health Insurance Fund and the Emergency, Chronic And Critical Illness Fund.

The Primary Health Care Act, 2023 provides a framework for the delivery, access and management of primary health care.

The Digital Health Act, 2023 on its part provides for the establishment of the Digital Health Agency and a framework for the provision of digital health services.

It considers health data as a strategic national asset and also promotes privacy, confidentiality and security of data for information sharing and use. 

In his petition filed under certificate of urgency via lawyer Harrison Kinyanjui, Aura argues that all the three Health Acts are unconstitutional on a number of fronts including that they strip Kenyans of their rights.

For instance, he said Section 26(5) of the Social Health Insurance Fund provides that any person who is registrable as a member under this shall produce proof of compliance of this Act on registration and contribution as a precondition of dealing with or accessing public services from the national government, county governments and their entities.

"By operation of this impugned provision, the aggregate and gamut of services offered invariably at a fee by the National and County governments of Kenya will thence become inaccessible to any person not digitally registered under the Social Health Insurance Act. This mandate is wholly unconstitutional," Aura told court.

He adds: "Even when so registered, where such person(s) remain(s) not up to date in the remittance of such prescribed dues under the said Act, they will nevertheless ne automatically barred from accessing any, and any such governmental services, thereby creating a constitutionally-barred class of differentiated and destitute underdogs."  

Aura further argues that Section 26(5) was supposed to be removed at the committee level of consideration of the primary Bill by Parliament but the Executive inserted it during publication of the Act.

"The Act is hence, unconstitutional to the extent that the Executive purported to usurp the National Assembly's constitutionally-imposed legislative mandate," he said.

To impose to Kenyans the statutory precondition of proof of compliance with the provisions of the Social Health Insurance Fund Act, he said, is wholly unjustified and unconstitutional eligibility criteria to access of receive government services for which they pay taxes for.