The Court of Appeal has granted the government a major reprieve by suspending a judgment that effectively halted a universal healthcare programme before it even began.
The ruling by Justices Francis Tuiyott, Abida Ali Aroni and Lydia Achode means that the government can proceed with the rollout of the Social Health Insurance Fund (Shif) and its universal care programme next month.
The justices noted that it would be unwise and chaotic to revert to the National Health Insurance Fund (NHIF) nine months after it was repealed. They argued that if the appeal is successful, returning to the old health scheme would lead to even more confusion.
“In these intractable circumstances, we lean towards granting a stay as the High Court decision is tested before this court and an authoritative pronouncement is made regarding the validity of the three statutes.
“We reach this decision because the statutes have been with us for nine months. To allow the framework under which the health sector is operating to revert to the old framework with the possibility of it returning to the current framework (in the event of the appeal succeeding) is to put this undeniably crucial sector in a state of flux and uncertainty,” the bench headed by Justice Tuiyott ruled.
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In its appeal, the government argued that more than seven million Kenyans registered under the NHIF would be unable to access healthcare if the orders against the social health project were not lifted.
High Court Justices Alfred Mabeya, Robert Limo and Freda Mugambi declared the three laws unconstitutional due to a lack of public participation. They instructed Parliament to align the laws with the Constitution within 120 days.
In effect, the country ought to have reverted to NHIF. However, MoH’s lawyer Fred Ngatia, argued that the problem with the orders is that Shif repealed NHIF in October last year, hence marking the death of the scheme started by President Mwai Kibaki’s government.
Asked by Justice Tuiyott what was the effect of the declaration that Shif was unconstitutional, the senior lawyer replied that it was unclear.
“National Health Insurance Fund 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 a hospital and he is a member of NHIF, what is required is to authorize admission. Without Shif, there will be nobody available,” he said.
The National Assembly’s lawyer Mbarak Awadh, on the other hand, urged the court to intervene urgently. He stated that there was confusion about the orders issued as they were frozen instead of being allowed to operate as MPs sorted the issues raised by the High Court.