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The Social Health insurance Fund (SHIF)

Introduction

Why the Social Health insurance Fund (SHIF) Act was declared unconstitutional

In a landmark judgment, the High Court of Kenya has declared the SHIF Act unconstitutional. Here’s why the court reached this decision.

  • Lack of Public Participation
  • Violation of Legislative procedures
  • Constitutional Breaches
  • Improper Delegation of Health Services
  • Financial Oversight Failure

1. Lack of Public Participation

The court found that the process of enacting the SHIF Act failed to meet the constitutional requirements for public participation. The notices for public comments were inadequately publicized, and the three-day period provided for public comments was deemed too short for proper citizen involvement.

2. Legislative procedures.

The SHIF Act bypassed necessary legislative procedures, including failing to obtain the required concurrence from both houses of Parliament as mandated by Article 110(3) of the constitution. Additionally, the publication period of the Bill was reduced from 14 to 3 days, violating the Standard legislative process.

3. Constitutional Breaches

Several sections of the SHIF Act contravened specific constitutional rights. Sections 27(A) restricted access to health services to only registered and paid-up members, violating the right to health care services under Article 43(1)(a) of the constitution. The Act’s requirement for biometric registration was also problematic, especially given past court rulings on related issues under the Registration of Persons Act.

4. Improper Delegation of Health Services

The court noted that the SHIF Act improperly conferred critical health responsibilities to unlicensed and unqualified individuals termed “community Health Promoters,” undermining the quality of healthcare delivery.

5. Financial Oversight Failure

The SHIF was enacted without a necessary report from the Commission on Revenue Allocation, contravening Article 205(1) of the constitution. This lack of financial oversight raised significant concerns about the Acts fiscal implications.

Conclusion

The High Court declared the entire Social Health Insurance Fund Act 2023 unconstitutional and null and void due to the aforementioned breaches and failures. The court directed Parliament to undertake proper public participation to regularize the law and amend the unconstitutional provisions within 120 days. In the interim, the Act remains suspended.

Date of Adoption: 19/07/2024

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