Safaricom, AG urge court to dismiss petition against SHIF

Attorney General Dorcas Oduor, Safaricom, and the Senate have urged High Court to strike out an application seeking to halt implementation of Social Health Insurance Fund (SHIF).

In response to a lawsuit filed by Busia Senator Okiya Omtatah and two others, the AG, Senate along with Safaricom Limited, which is leading a three-member consortium in the Sh104 billion project contends that the plea to suspend the initiative is premature and overtaken by events.

The AG argues that granting the orders would harm over 50 million Kenyans by suspending access to critical healthcare services.

“The suspension of the rollout of SHIF in the absence of an alternative legal and operating framework will cause disproportionately adverse and unmitigated harm to the public,” the AG through chief state counsel Emmanuel Bitta states.

Senator Omtatah, along with activists Eliud Matindi and Dr Magare Gikenyi are seeking to halt SHIF rollout and invalidate the contract between the government and the Safaricom Consortium, which includes Safaricom Plc, Konvergenz Network Solutions, and Apeiro Limited.

The consortium intends to provide an Integrated Healthcare Information Technology System  for Universal Health Care over a 10-year period.

The petitioners also request the suspension and annulment of the government’s contract with the consortium.

However, the AG argues that Omtatah and Kenyans will suffer no prejudice if the conservatory orders suspending the health insurance fund are not granted.

“There is neither an allegation nor proof by the applicants that their claim will be rendered nugatory if the interlocutory orders are not granted pending the hearing and determination of the petition. The application is bad in law,” Bitta adds.

On its part, the telecommunications giant, through Konvergenz Network Solutions and Apeiro Limited, has vehemently opposed the request by Omtatah and co-petitioners for the court to issue an injunction on the multi-billion initiative aimed at providing affordable healthcare to millions.

Konvergenz Network Solutions, through its director Abdullahi Abdi Sheikh, argues that Omtatah's lawsuit is full of misrepresentation regarding the true factual and legal position on the implementation of SHIF.

Sheikh describes the lawsuit as a “gross abuse of the court process,” asserting that the project aimed at providing universal healthcare has already commenced.

In the absence of any other framework for Kenyans to access healthcare services, issuing a prohibitory order at this stage would suspend healthcare access for millions, Sheikh emphasizes while highlighting the constitutional right to healthcare under Article 43.

Contrary to the petitioners’ claims, Sheikh asserts that the procurement process for the Sh104 billion project complied with the law. 
The Ministry of Health sought a strategic partner capable of delivering an Integrated Health Care Information Technology System, turning to the Safaricom Consortium after extensive evaluations and consultations.
Sheikh details that the AG, in a letter dated June 6, 2023, confirmed the government's approval of the procurement process. The National Treasury granted approval on June 27, 2023.
A Request for Proposal (RFP) was issued to Safaricom PLC on May 9, 2024, inviting proposals for the Integrated Healthcare Information Technology System for Universal Health Care (UHC). Following successful negotiations, the Ministry of Health issued a Notification of Award to the Safaricom Consortium on June 19, 2024.

Sheikh outlines the government's healthcare reforms aimed at creating a digital health superhighway integrating various stakeholders in Kenya’s health ecosystem.

This initiative seeks to link National Core Digital Health Services with healthcare providers, the SHIF, and regulatory bodies, ensuring an efficient flow of health information.
The core deliverables of the contract include the provision of ICT infrastructure and hardware required for various health information management systems.

Sheikh asserts that the Safaricom Consortium will finance the implementation of the health digitisation project, with an initial investment cost of Sh34 billion over two years, offering a first six-month payment holiday.

He also refutes the contention that the Safaricom Consortium's involvement is a fraudulent scheme designed to steal funds from Kenyans, insisting that payments will only be generated through the system's usage and various other avenues, ensuring the project is self-funding.

According to Apeiro Limited, the rights of Kenyans to health care will be jeopardised if the petitioners' plea for conservatory orders is allowed. The company stresses that the SHIF is the only remaining framework to provide healthcare in the absence of the now-repealed NHIF.

“If the conservatory orders by the petitioners are allowed, it will lead to the suspension of access to healthcare for millions of Kenyans, causing potential suffering for those in urgent need of medical attention,” Apeiro warns.

The firm argues that Omtatah's case has become moot due to the rollout of healthcare laws permitted by the Court of Appeal in August.

“The application has become irrelevant due to the implementation of healthcare laws and the registration of Kenyans,” it states.

The Senate notes that Omtatah's orders violate the state's obligation to ensure citizens' rights to health care services, including reproductive health care, as enshrined in Article 43 of the Constitution.

“The application and petition affront the legislative role of the Senate as set out under Articles 94, 96, and 109 of the Constitution,” the Senate adds.