Three-judge bench begins hearing case challenging SHIF

A three-judge bench has begun hearing the case challenging the implementation of three health laws.

Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi on Wednesday heard the petitioners complaints on how the Social Health Insurance Act risks locking out a section of Kenyans from accessing crucial health services on account of mandatory registration which they term unconstitutional.

The respondents, however, who include the government, defended the position saying provisions in the law are geared towards facilitating efficient delivery of health services.

The petitioners assert that the Social Health Insurance Act violates several provisions of the Constitution concerning healthcare.

Advocate Stanley Kinyanjui, representing the petitioners, took issue with the provision that Kenyans not registered under the Social Health Authority will not access medical services in public hospitals.

“A person shall not be denied medical services, there are no preconditions there, a doctor is on call for you, but under this legislation, the receptionist checks and says tada! You have not registered and service is denied. Can you then incise, remove section 25, 26, 27 because they offend the Constitution and over reach the scope of the first respondent’s mandate,” argued Kinyanjui.

However Senior Counsel Fred Ngatia told the court of the necessity for the government to compel all Kenyans to register with the Social Health Authority and keep their payments up to date, adding that failure to do so would compromise the delivery of government services.

“NHIF should transition from collecting voluntary contributions and adopt mandatory tax deductions. UHC cannot be achieved through voluntary mechanisms, Article 43 will collapse. It is bound to collapse because there must be away to compel all of us to pay, because finance is not an impediment, why would you refuse to register? Because you have wilful reasons to refuse to register,” retorted Ngatia.

The petition filed by Joseph Enock Aura, the Kenya Medical Practitioners, Pharmacists and Dentists Union, the Union of Kenya Civil Servants and other health bodies opposes the mandatory registration of all Kenyans above 18 years of age to the Social Health Insurance Fund (SHIF).

The petitioners’ lawyer singled out Section 26 (5) of the Act which directs the national and county governments to deny services to anyone not registered for SHIF, terming it illegal under the Constitution of Kenya.

“This is draconian. We cannot have a dichotomising of Kenyan citizens in those two classes. It creates a dichotomised class of Kenyans, those who are registered and fully paid up, they are able to access government services, then there are the others who are not registered and cannot access government services,” Kinyanjui stated.

Ngatia, however, noted: “Let no Kenyan approach this court saying this law denies them emergency medical care. It says you can’t access public services. That is not a constitutional right. The so called access to public service is not equal to denial of constitutional rights because constitutional rights are not public service.”

The three-judge bench is also expected to determine whether the Digital Health Act that outlines a system of digitally acquiring and maintaining health records of Kenyans violates the right to privacy.