The National Health Insurance Fund (NHIF) headquarters in Nairobi.
The Ministry of Health has urged the Court of Appeal to extend an order suspending a judgement that quashed three health laws, pending the determination of its appeal.
Appearing before a bench of three judges of the appellate court, the ministry, through Senior Counsel Fred Ngatia, submitted that the High Court imposed a “rigid and inflexible yardstick” on public participation.
He said before the enactment of the three laws, the Ministry of Health had engaged the public and all stakeholders robustly and all views and comments were considered.
Mr Ngatia said no single complaint was tendered before the High Court by an individual or stakeholder regarding the lack of public participation.
“It is in the public interest for interim orders to be issued to ensure continuity of the health sector. No conceivable prejudice shall be caused to the 1st respondent (Mr Joseph Enock Aura),” Mr Ngatia said.
Justices Francis Tuiyott, Abida Ali-Aroni and Lydia Achode directed the status quo be maintained, pending their ruling on September 20.
This means that the Social Health Insurance Act (SHIA), Digital Health Act and Primary Healthcare Act remain in force and in operation, until further directions are issued by the court.
Mr Ngatia said it is arguable that the rigid position taken by the trial court was subject to appellate review since any legislative process may require distinct approaches to public participation.
While quashing the laws last month, the High Court faulted the government for rushing to pass the laws without meaningful public participation.
Justices Alfred Mabeya, Robert Limo and Dr Freda Mugambi said in as much as they appreciated the noble intention, the government disregarded clear constitutional tenets. The judges, however, suspended their decision for 45 days to allow the government appeal against the decision.
Mr Ngatia submitted that SHIA was enacted to establish the framework for managing social health insurance, providing for the establishment of the Social Health Authority, and giving effect to Article 43(1)(a) of the constitution.
He explained that universal health coverage cannot be realised through voluntary contribution and that with that realisation, legislative measures to sanction or compel compliance is necessary.
“It is our submission that the holding by the trial court raises sufficiently arguable grounds that will be determined by this court at the hearing of the appeal,” he said.
Parliament also filed its appeal and argued that the court erred in its finding that the public participation was inadequate yet the MPs conducted it extensively before the laws were enacted.
In the appeal, the National Assembly said the court created confusion in the entire health sector by suspending the SHIA by not considering the lacuna that will exist as the National Health Insurance (NHIF) Act was repealed.
In the High Court decision, the judges agreed that there was evidence that the repealed NHIF failed to realise the rights guaranteed to Kenyans and the Act was also unsustainable. They added that evidence on record shows that the principle of solidarity was lacking in NHIF and the continued voluntary contribution was unsustainable.
“It is evident that unless some sort of compulsion or sanction is applied, then the realisation of the rights under Article 43(1)(a) will be a mirage,” said the judges adding that the objectives of section 26(5) and 27of SHIA are noble.
