The High Court has declared the Social Health Insurance Act unconstitutional.
A three judge bench comprising Justices Alfred Mabeya, Robert Limo, and Fridah Megabit ruled that the Act lacked adequate public participation and contained disparities that rendered it invalid.
According to the High court, the government did not carry out public participation, a fundamental principle enshrined in the Constitution.
The judges highlighted the disparities within the Act, which they determined were inconsistent with constitutional mandates.
It however suspended the nullification of the Act for 120 days. This suspension aims to provide Parliament with an opportunity to rectify the legislation with its total nullification set to take effect on November 20 unless the necessary amendments are made.
The Social Health Insurance Act was officially gazetted on March 8 paving way for its implementation.
These regulations required all Kenyan households, non-Kenyan residents, national and county governments, and employers to register as members of the Social Health Insurance Fund (SHIF) with the Social Health Insurance Authority (SHIA).
The Act has been at the center of controversy with the Kenya Medical Practitioners and Dentists Union (KMPDU) faulting the government for pressing on with its implementation without engaging stakeholders.
In January, court of appeal had granted government reprieve after immediate former Health Cabinet Secretary Susan Nakhumicha moved to the Court of Appeal moved to the Court of Appeal, claiming that many Kenyans had been refused access to medical care in violation of the High Court’s judgment, which was against the provisions of the Constitution.
“We hereby suspend the orders of the High Court restraining the implementation and or enforcement of The Social Health Insurance Act, 2023, The Primary Health Care Act, 2023 and The Digital Health Act, 2023,”ruled the appellate court.
