The Ministry of Health has requested Parliament to allocate Sh100 million, for sensitisation and public participation on the Social Health Insurance Act (SHIA); which was recently declared unconstitutional by the court. 

The High Court nullified the Social Health Insurance Act 2023, the Primary Healthcare Act 2023, and the Digital Health Act 2023, which have replaced the National Health Insurance Fund (NHIF).

The court ruling cited insufficient public participation.

The three-judge bench court, comprising of Justices Alfred Mabeya, Robert Limo, and Fredrick Mugambi, gave Parliament 120 days to make the necessary amendments.

During this period, the Acts will remain suspended.

Appearing before the National Assembly Departmental Committee on Health on Wednesday, Medical Services Principal Secretary, Harry Kimtai, emphasised that the Sh100 million allocation would enable them to conduct public and stakeholder sensitisation on the relevant laws in compliance with the court’s decision.

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“We are requesting a budget allocation of Sh100 million to undertake sensitization on the UHC laws in accordance with the court judgment,” Kimtai said. 

He further said that the Ministry intends to appeal the court's decision to suspend the health laws, at the expiry of a 45-day stay order on implementation.

“We’ve agreed to form a joint team from the Ministry, Parliamentary Service Commission (PSC), and the Attorney General to strategise on how to appeal, and conduct public participation,” he said.

The PS revealed that the two-way approach involves lodging an appeal and conducting public participation and sensitisation on the suspended laws.

“So far, we’ve agreed to use this two-pronged approach of appealing and then conducting public participation,” he noted.

In its ruling, the three-judge bench pointed out that some rights under the Act had been limited.

They cited section 26(5), which makes registration and contribution a precondition for accessing public services from national and county governments or their entities.

The Judges also singled out Section 27(4), which stipulates that a person can only access healthcare services if their contributions to the SHIF are up-to-date and active.

They argued that these sections could not withstand constitutional scrutiny because they did not make exceptions for the right to emergency medical services, thus violating Article 43 of the constitution, which guarantees every Kenyan the right to health services.

“The precondition set out in those two provisions infringes on the right to access emergency services, while the state aims to realise this right with the challenged acts,” the Judges ruled.