- One of the questions the bench will be called upon to determine is whether the integrated digital health information system violates the right to privacy.
- The court also put on hold section 27 (4) which provides that a person shall only access healthcare services where their contributions to the Shif are up to date.
Image: FILE
The lawmakers now want a case challenging the new public health insurance to be referred to Chief Justice Martha Koome.
The National Assembly further wants the CJ to constitute and appoint a bench to hear and determine the matter.
The assembly says an uneven number of judges being not less than three should determine the matter owing to the pertinent constitutional questions it raises.
One of the questions the bench will be called upon to determine is whether the integrated digital health information system violates the right to privacy by storing the data of minors without their consent.
The Social Health Insurance Act, Digital Health Act, Primary Healthcare Act and Facility Improvement Financing Act were assented to by President William Ruto on October 19, 2023.
Upon enactment of the said laws, the entire National Health Insurance Fund Act, 1998, (“the NHIF Act”) which had been in operation for 25 years was repealed.
What followed were several petitions being filed in court challenging the constitutionality of three statutes.
Enock Aura filed the matter in court last year and an order was subsequently issued suspending implementation of the Act.
However, Health CS Susan Nakhumicha was aggrieved and appealed.
The Appellate Court then proceeded to suspend three sections of the laws including section 26 (5) which makes registration and contribution a precondition for accessing public services from the national and county governments or their entities.
The court also put on hold section 27 (4) which provides that a person shall only access healthcare services where their contributions to the Shif are up to date.
The National Assembly in its fresh application says the petition by Aura raises complex questions of law concerning, the extent to which data of minors without their consent and the community health promoters will be stored.
In their affidavit, Clerk of the National Assembly Samuel Njoroge says Aura finds an issue with the centralised data systems under the Digital Health Act and observes that no concepts for good digital security exist at the moment.
“Will this affect the rights under Article 43 (1) of the constitution? This is a question that the court will be called upon to determine,” Njoroge said.
The said article touches on the right to access the highest attainable standard of health. Njoroge further explains that the Primary HealthCare Act, Section 8 establishes, a primary health workforce including “community health promoters” and “healthcare providers” who are to be assigned to each locality or the purpose of facilitating access to and ensuring the effective delivery of community health services at the community.
Based on this, he says Aura has raised an issue on the constitutionality of the said community health promoters, whether their roles infringe on Article 31 on the right to privacy.
Justice Chacha Mwita directed the application to be served on all parties.
He will issue directions on February 23 when the main case is set to come for highlighting of submissions.
Among those sued in the case are the CSs of Health and Communication, the Social Health Authority, the Commission on Revenue Allocation, the National Assembly of Kenya, the Senate, the Council of Governors and others.