The Court of Appeal on Friday lifted an order blocking the implementation of the Social Health Insurance Fund (SHIF) paving for the government to roll out the new Universal Health Care (UHC) laws.
A bench of three judges lifted the order blocking the roll-out following an application at the court for a temporary suspension of the High Court directive pending the determination of the case filed by Joseph Enock Aura.
The Appellete court ruling now allows the government to start the implementation of the Social Health Insurance Act, 2023, Primary Health Care Act, 2023 and Digital Health Act, 2023. The three laws replaced the National Health Insurance Fund (NHIF).
The government had published the draft Social Health Insurance (General) Regulations, 2023 at the end of last year and invited members of the public to give their views.
The High Court order, however, scuttled the plans and it is not clear whether the Ministry of Health proceeded with the public participation.
Rise in deductions
The new Act does not disclose the amount that Kenyans will pay to the three funds—primary healthcare fund, healthcare fund and emergency, chronic and critical illness fund— that will be replace the NHIF, instead leaving it to the Ministry of Health to prescribe this through regulations.
In the draft Regulations, Health Cabinet Secretary Susan Nakhumicha stated that every household whose income is derived from salaried employment shall pay a monthly statutory deduction contribution to the Social Health Insurance Fund at a rate of 2.75 percent of the gross salary or wage of the household by the ninth day of each month.
The 2.75 percent has not been capped at a maximum of Sh5,000 as had been promised earlier by several government officials including Ms Nakhumicha, a development that will see deductions from top earners rise sharply.
Currently, Kenyans are deducted between Sh150 to Sh1,700 for salaried workers and Sh500 for self-employed.
The CS through senior counsel Fred Ngatia argued that the suspension of the Act had created confusion in the health sector as 17 million members of the now defunct NHIF stood affected as they could not access treatment.
“We are persuaded that the confusion, the lacuna and the risk and harm to citizens pending the hearing and determination of the appeal is a price too dear to pay, and it would have the effect of rendering the appeal nugatory having regard to the duty to give the term its full meaning,” Justices Patrick Kiage, Pauline Nyamweya and Grace Ngenye Macharia said.
The judges, however, suspended three sections of the law including section 26(5) which makes registration and contribution a precondition for dealing with or accessing public services from the national and county governments or their entities.
The national and county governments will pay contributions for needy Kenyans.
Contribution to the fund will be mandatory for all adults seeking government services.
The laws also make it compulsory for all foreigners visiting the country for more than 12 months to enlist and contribute to the social health insurance scheme.
Visitors coming into the country for less than a year will need to buy travel health insurance, which must be recognised under Kenyan insurance laws and regulations.
The government is also required to build at least one health facility for every 5,000 of its citizens under the ambitious UHC programme. The Primary Health Care Act, 2023 provides for the construction of community health units across the country to facilitate delivery and access to primary health care services at the grassroots.