Court declares the Social Health Insurance Fund unconstitutional
In a significant legal development, the High Court of Kenya has declared the Social Health Insurance Fund (SHIF) unconstitutional. This ruling follows a petition by the Kenya Medical Practitioners, Pharmacists, and Dentists Union (KMPDU), which argued that the government had implemented the SHIF without adequately engaging stakeholders or addressing key concerns.
The KMPDU particularly took issue with Section 26(5) of the SHIF Act, which mandates that citizens must provide proof of compliance with the Act to access public services. The union argued this provision would disenfranchise many Kenyans, effectively barring them from essential government services if they failed to comply with the registration and contribution requirements of the SHIF.
High Court Judge Chacha Mwita, in his ruling, stated, “A conservatory order is hereby issued restraining the respondents, their agents, and 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 a case challenging its legality is heard.” He emphasized that these Acts potentially violate the constitution and could deny Kenyans critical rights.
The government, led by Health Cabinet Secretary Susan Nakhumicha, had recently announced the operationalization of these health laws, with the SHIF intended to replace the National Health Insurance Fund (NHIF). This move was part of a broader effort to implement universal health coverage, a key promise of President William Ruto’s administration.
However, the High Court’s decision has put a halt to these plans, citing the need for a more inclusive process that addresses the contentious issues raised by various stakeholders, including the potential for significant disruptions to public service access and concerns over citizens’ health rights.
The ruling has significant implications for the future of health insurance and public health services in Kenya. While the government’s efforts to provide universal health coverage are commendable, the legal challenges highlight the complexities and potential pitfalls of implementing such sweeping reforms without broad-based consensus and thorough stakeholder engagement.
The case will continue to be a focal point in Kenya’s healthcare policy discussions, as the courts further deliberate on the constitutionality and practicality of the SHIF and related health laws. This decision underscores the delicate balance between ambitious health reforms and the need to protect citizens’ rights and ensure equitable access to essential services.
