More than seven million Kenyans registered under the National Health Insurance Fund (NHIF) will not access healthcare if orders issued against the Kenya Kwanza administration’s social health project are not lifted.
The Ministry of Health told the Court of Appeal last Wednesday that NHIF is defunct and that the only law in place that could salvage the situation is establishing the Social Health Insurance Fund (SHIF).
During the hearing, the judges asked National Assembly lawyer Mbarak Awadh whether his client had gone out to educate Kenyans and eliminate fears surrounding the Primary Health Care Act of 2023, SHIF, and Digital Health Act of 2023.
The lawyer pushed the question to the Ministry.
High Court judges Alfred Mabeya, Robert Limo and Freda Mugambi declared the three laws unconstitutional for lack of public participation.
The trio gave Parliament 120 days to ensure the laws aligned with the Constitution.
In effect, the country ought to revert to NHIF.
However, the ministry's lawyer Fred Ngatia, in his submissions before the Appeal's court judges Francis Tuiyott, Abida Ali Aroni and Lydiah Achode argued that the problem with the orders is that SHIF replaced NHIF in October last year, hence marking the death of the scheme started by President Mwai Kibaki’s government.
Asked by Justice Tuiyott what effect the declaration that SHIF was unconstitutional would have on NHIF, the senior lawyer replied that it was unclear.
“National Health Insurance Fund (NHIF) ceased to exist. Absent a stay on this suspension, what will happen is that the social health laws will not be applicable. If one goes to hospital and he is a member of NHIF, what is required is to authorize admission. Without SHIF, there will be nobody available,” argued Ngatia.
While drumming up support for the new scheme, Ngatia claimed that only 13 per cent of those employed contributed to NHIF, constituting 83 per cent of the entire revenue of the Fund.
He claimed that the informal sector had an 87 per cent registration and only gave 17 per cent of the fund.
Ngatia claimed that those in the informal sector became members only when burdened by illnesses.
“NHIF is not sustainable,” Ngatia said, arguing that the solution is Universal Health Care, which he claimed would ensure everyone was on board.
The National Assembly lawyer argued that there was confusion about the orders issued as they were frozen instead of being allowed to operate as Members of Parliament sorted the issues raised by the High Court.
While referring to NHIF as inferior, Awadh said the new scheme has catered for emergency care and chronic illnesses which were not part of the NHIF.
Justice Achode asked Awadh about public sensitisation on the new laws.
“You need to tell Kenyans why children need Nano technology injection at birth. What public participation while Kenyans do not know what you are talking about?” paused Achode.
Ngatia came to Awadh’s rescue saying that the High Court rejected the claim on Nanotechnology and referred to it as wild allegations.
Justice Aroni also asked Awadh whether emergency care and chronic illnesses paid under new scheme were operational.
The lawyer, again, passed the question to the ministry's advocate.
Justice Achode said Awadh was guessing on what was the reality on the ground.
Justice Aroni added, “I think Mbarak (Awadh) has been cornered.”
On the other hand, lawyer Harrison Kinyanjui, who was representing Joseph Enock Aura, who wants the new scheme quashed, told the court that the health law issue was similar to a plane flown by an unqualified pilot.
He said if the pilot was called out, then another qualified pilot had to be found to fly to evade a disaster.
Kinyanjui says the three laws were declared unconstitutional, hence, the only option is to revert to NHIF. He asserted that social health is not operational as Parliament has yet to make regulations to give effect to the three laws.
“A person in grave health condition has no time to explain whether they are registered under social health. The repeal does not close the NHIF chapter,” said Kinyanjui.
