Justice Chacha Mwita.
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Court slams the brakes on President Ruto plans for health care
The High Court on Monday halted President William Ruto’s government plan to implement the Social Health Insurance Fund (SHIF) that seeks to make it mandatory for every household in Kenya to contribute a set percentage of its income to the fund.
While the SHIF Act does not provide a specific figure on the percentage employed Kenyans will pay, government officials have said the figure will be pegged at 2.75 per cent, paid monthly, with the unemployed assessed on their means to determine how much they will pay, but not below Sh300.
Justice Chacha Mwita on Monday put a freeze to the implementation of the Act after Mr Joseph Enock Aura argued that it is illegal for the government to deny Kenyans services if one is not registered to the SHIF.
Mr Aura further argued that the digitisation and storage of children’s biometric data (without their consent) would be in breach and violation of their rights to privacy and exposes them to risks of online invasion and trade in and attrition of their personal digitised information without their say. The Act makes it mandatory for all Kenyans to be members of a new social insurance scheme, which will replace the current National Health Insurance Fund (NHIF), to enjoy government services.
Justice Mwita granted the orders stopping the implementing of the Social Health Insurance Fund Act, the Primary Health Care Act and the Digital Health Care Act.
“In the meantime, a conservatory order is hereby issued restraining the respondents, their agents and or anyone acting on their directives from implementing and or enforcing the Social Health Insurance Act, 2023, the primary Health Care Act and the Digital Health Act, 2023 until [February 7],” the judge said.
The court directed Mr Aura to serve the court documents upon all the respondents immediately, who are to file their responses within seven days. The case will heard on February 7, 2024.
Section 26(5) of the Social health Insurance Fund Act provides that: “Any person who is [eligible to be registered] as a member under this Act shall produce proof of compliance with the provisions of this Act on registration and contribution as a precondition of dealing with or accessing public services from the national government, county government or national or county government entities.”
Mr Aura said the provision means that services offered by the national and county governments will be inaccessible to any person not digitally registered under the SHIF Act.
“Even when so registered, where such person remains not up-to-date in remittance of such prescribed dues under thus Act, they will nevertheless be automatically barred and stand barricaded from accessing any, and any such governmental services, thereby creating a constitutionally-barred class of differentiated and destitute underdogs,” the petitioner said.
His lawyer, Mr Harrison Kinyanjui, said the direct implication of the mandate of the SHIF is to “irrationally, summarily and unreasonably curtail Kenyans access to government services, thereby negating their right to life.”
He said that section of the law was unconstitutionally created by the executive in the final publication of the legislation since Parliament had meant to block it at the committee stage.
The petitioner said the section is unconstitutional to the extent that the executive purported to usurp the National Assembly’s constitutionally imposed legislative mandate under Article 94(5) of the constitution.
Mr Aura further states that the Act is also illegal for stating that every Kenyan must on priority be digitised through unique biometrics in order to be recognised as statutorily compliant with the provisions of the Digital Health Act. He pointed out that section 47(3) of the SHIF Act states that: “Every Kenyan shall be uniquely identified for purposes of provision of health services under this Act.”
Mr Aura says that, in sum, no Kenyan will receive in any form of class of health services unless they have a unique biometric identification. He said no subsidiary law has been put in place to govern the process of collecting Kenyans’ data so as to operationalise section 47(3) of the Act.
He said the section is predicated on section 5(1)(g) and (h) of the Registration of Persons Act, which was declared unconstitutional by the High Court in a case filed by the Nubian Rights Forum.
In the decision, the High Court blocked the use of National Integrated Identity Management System (NIIMS) and process and utilise the data collected in NIIMS unless appropriate and comprehensive regulatory framework on the implementation of NIIMS that us compliant with applicable constitutional requirements identified in the judgement is first enacted.
He pointed out that the court order has not been complied with. Further, whereas Article 53(1)(c) guarantees that children are a special group of persons in need of special protection and have a right to basic nutrition, shelter and healthcare, section 26(3) of the SHIF states any child born after the enactment of the law must be digitally registered.
Mr Aura said the birth certificate, which is currently issued after birth, has not proved insufficient to warrant the digital registration of infants.
Mr Aura further says section 27(1)(a) of the Act imposes an obligation to remit the dues on every Kenyan household, which leads to multiple taxation.
“Plainly, this imposed remittance is practically no different from the infamous Colonial Hut and Poll Tax under the Native Hut and poll Tax Ordinance, 1910,” Mr Aura said.
He said the burden heaped on parents as a result of the economic demands of the Act mandating the registration of infants and blocking unregistered persons from accessing government services is an “oblique instrument for population control”.
