Kenya's Court of Appeal Approves Ministry's Plan to Launch Social Health Authority

The Court of Appeal granted permission for the Ministry of Health to move forward with the implementation of the Social Health Authority (SHA) starting on October 1, 2024.

This decision paves the way for the SHA rollout scheduled to begin on October 1, 2024. The ruling comes in the wake of ongoing debates surrounding the constitutionality of the Social Health Insurance Act, which was previously declared unconstitutional by the High Court in July due to insufficient public participation in its development. In their decision, the three-judge bench, comprising Justices Alfred Mabeya, Robert Limo, and Fridah Megabi, emphasized the need to mitigate uncertainty within the health sector.

The judges affirmed the validity of the government's appeal regarding the SHA, stating, "In these complex circumstances, we are inclined to grant a stay as the High Court decision is reviewed by this Court, pending an authoritative ruling on the validity of the three statutes."

The Court of Appeal's decision has taken into account the fact that the statutes in question had been operational for approximately nine months. The judges expressed concern that reverting to the previous healthcare system could potentially create instability within the sector, particularly if the appeal were to ultimately succeed. They noted that such a reversal could not only disrupt service delivery but also delay future healthcare initiatives aimed at improving access and quality. The High Court's earlier declaration of unconstitutionality for the Social Health Insurance Act stemmed primarily from a lack of robust public engagement and participation in its formulation.

The Act was criticized for containing disparities that fundamentally undermined its legal standing. Following this ruling, Parliament was given a 120-day timeframe to amend the Act, ensuring compliance with constitutional requirements regarding public participation. This decision aims to foster a more inclusive approach to policy-making in the health sector, a crucial consideration given the significant impact these laws have on citizens' lives. Further complicating the SHA rollout, the High Court recently issued a temporary injunction against the implementation of the Social Health Insurance Fund (SHIF) for school-going children.

This injunction resulted from a lawsuit filed by the Law Society of Kenya (LSK), which challenged the legality of imposing the health scheme on students. The High Court ruled that the status quo prior to the Ministry of Education's directive must be maintained until a determination on the case is reached. The LSK argued that imposing SHIF on school children is unlawful, particularly in light of the earlier High Court ruling on the unconstitutional nature of the health scheme.