High Court declares Social Health Insurance Act unconstitutional

“We find that sections 26 (5), 2791) (a), 27 (4), and 47 (3) of the Act are null and void and therefore unconstitutional.

“A declaration is hereby issued that the entire Social Health Insurance Fund Act 2023, the entire Digital Health Act 2023, and the entire Primary Health Care Act 2023 are all unconstitutional,” the judgement read.

Joseph Enock Aura had moved to the court seeking to quash the SHIF Act 2023, the Primary Health Care Act 2023, and the Digital Health Act 2023, saying they were not constitutional.

According to the judges, some sections of the SHIF Act 2023 are null and void since they are designed in a manner that will take up the roles of the county governments in the provision of health services to the people.

Parliament has been given 120 days to make amendments to the act. Parliament, according to the judges, should also undertake adequate public participation before enacting the same Act and amending the unconstitutional provisions highlighted.

“Being cognizant of the importance of the impugned laws and the input that has already gone into their enactments and recognizing the purpose of the enactment as far as the realization of their rights under Article 43 of the Constitution, we are prepared to give parliament an opportunity to redeem itself and save the laws.

“The breaches that tainted the laws are redeemable within our findings and can be corrected.

“Let parliament undertake adequate, reasonable, and inclusive public participation before enacting the said act. Compliance with above be taken within 120 days of the date of this judgment,” it added.

Meanwhile, Kenyans had already been directed by the government to begin registering for SHIF effective July 1, 2024.

To access the fund, eligible citizens were required to register as members; any person who is not a Kenyan but ordinarily resides in Kenya for more than twelve (12) months was also qualified for SHIF services.

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