Kenyan High Court declares Social Health Insurance Fund unconstitutional

KENYA—A three-judge bench at the Kenyan High Court ruled that the Social Health Insurance Fund (SHIF) is unconstitutional. Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi delivered the ruling.

The court found that the SHIF Act was enacted without sufficient public participation and transparency, which are fundamental requirements under the Kenyan constitution. 

As Justice Mabeya stated, “Parliament should undertake adequate public participation in accordance with the constitution before enacting the same act and amending the unconstitutional provisions.” 

Furthermore, the judges noted that the SHIF program had created a disparity in contributions, burdening a few salaried individuals. 

“It was the court’s finding that the programme had burdened a few salaried individuals, thus creating disparity in the contribution,” the judges said. 

The three-judge bench gave Parliament 120 days to amend the SHIF Act and ensure its alignment with the Constitution. 

The Act shall remain suspended unless Parliament fails to do so within the given timeframe.

This ruling comes just months before the SHIF was set to replace the National Health Insurance Fund (NHIF) on October 1, 2024. 

The SHIF was designed to overhaul the existing NHIF system and provide comprehensive health coverage for Kenyans, with proposed deductions of 2.75% from gross income. 

However, the abrupt implementation and significant increase in contributions raised concerns among citizens and stakeholders. 

The SHIF was a critical component of President William Ruto’s Universal Health Coverage (UHC) agenda, which aims to ensure that every Kenyan has access to quality health care without financial hardship. 

The Court of Appeal had previously suspended the High Court’s orders, stopping implementing the SHIF Act, the Primary Health Care Act, and the Digital Health Act. 

However, the High Court’s latest ruling has once again declared the SHIF Act unconstitutional, jeopardizing the government’s UHC plans. 

Parliament now faces the challenge of revising the SHIF legislation to align with constitutional requirements, ensuring extensive public participation, and addressing the issues raised by the judiciary to avoid future legal challenges.

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