Chief Justice Martha Koome has appointed a three-judge bench to preside over a case challenging the new public health insurance system. Justices Alfred Mabeya, Robert Limo, and Freda Mugambi have been assigned by Koome to handle the matter filed last year. The case, brought forward by Activist Enock Aura, raises significant and complex constitutional issues surrounding the recently enacted Social Health Insurance Act, Digital Health Act, Primary Healthcare Act, and Facility Improvement Financing Act.
Justice Chacha Mwita is set to mention the case on Tuesday morning, following a directive issued on February 23 to confirm if Chief Justice Koome would form a bench for the matter. The National Assembly successfully persuaded the court that the case involves weighty constitutional concerns. One key question the bench will address is whether the integrated digital health information system violates the right to privacy by storing minors’ data without their consent.
The new legislation, signed into law by President William Ruto on October 19, 2023, led to the repeal of the entire National Health Insurance Fund Act, 1998, which had been in operation for 25 years. Subsequently, a petition challenging the constitutionality of the new statutes was filed in court by Enock Aura last year, resulting in an order suspending the implementation of the Social Health Insurance Act.
However, Health Cabinet Secretary Susan Nakhumicha appealed to the Court of Appeal, leading to the suspension of three sections of the laws by the Appellate Court. These include section 26 (5), making registration and contribution a prerequisite for accessing public services, and section 27 (4), which stipulates that individuals can only access healthcare services when their contributions to the SHIF are up to date. The appeal is currently pending a hearing.
