Activist Joseph Aura has moved to court to challenge the Kenyan government’s directive requiring parents to register their children for the Social Health Insurance Fund (SHIF) before the start of the upcoming school term. The directive, issued by Education Principal Secretary (PS) Belio Kipsang, mandates all learners to be enrolled as dependents under the new SHIF scheme, set to replace the existing National Health Insurance Fund (NHIF). The court application, filed under a certificate of urgency, argues that the directive is both irrational and unconstitutional.
The activist, represented by lawyer Harrison Kinyanjui, contends that the government’s move is in direct violation of a High Court ruling that declared the SHIF Act, 2023, unconstitutional. According to the court documents, the directive by PS Kipsang was released with insufficient notice, leaving parents and learners scrambling to comply before schools reopen on Monday, August 26th, 2024. This sudden announcement has sparked criticism, with many accusing the government of imposing an arbitrary and authoritarian mandate that violates children’s right to education.
Legal Basis for the Challenge
Aura’s legal team argues that the directive contravenes the principles of the Constitution, particularly concerning procedural fairness and the right to education. The activist claims that the government, in making this decision, is effectively enforcing a provision of a law that has already been struck down by the courts. “This dictatorial directive is clearly an arbitrary and wholly irrational mandate; in all but name enforcing Section 26(5) of the Social Health Insurance Fund Act, 2023, which was declared unconstitutional by the High Court’s Constitutional Court,” the court documents state.
The activist further highlights that the Ministry of Health has appealed the ruling that invalidated the SHIF Act, but this appeal does not justify enforcing the directive in the interim. Aura’s application emphasizes that the government’s actions breach the learners’ right to education as guaranteed under Article 43 of the Kenyan Constitution. By mandating registration under an invalid law, the directive places an unnecessary burden on parents and children and creates a barrier to accessing education.
Timing and Context of the Directive
The timing of the directive has raised additional concerns. Issued just days before the new school term, the circular by PS Kipsang left little room for compliance, particularly for parents and guardians who may not have immediate access to the required resources or information. “The directive by the PS imposing the arbitrary precondition to Kenyan learners on such an impossibly short notice, let alone imposing it in the first place… stands in clear breach of the children’s and learners’ right to education,” Aura argues in his court application.
The activist’s legal challenge comes at a time when the government is under scrutiny for its handling of educational policies and funding. The SHIF, intended to provide universal health coverage, has faced criticism for its rushed implementation and lack of clear communication regarding its benefits and requirements.
Implications for Policy and Governance
Aura’s move to court underscores the tension between government policy directives and constitutional safeguards. The case will likely test the limits of executive authority in issuing directives that affect fundamental rights. The outcome of this legal battle could have broader implications for how similar directives are issued and implemented in the future.
The government, for its part, has defended the SHIF directive as a necessary step to ensure that all learners are covered under a comprehensive health insurance scheme. However, critics argue that without a clear legislative basis and sufficient notice, the directive remains problematic. The court’s decision on this matter will be closely watched, not just by those directly affected, but also by observers concerned about the balance of power between government action and judicial oversight in Kenya.
As the legal process unfolds, the debate over the SHIF directive highlights the need for transparent governance and adherence to the rule of law, particularly when policies impact vulnerable groups such as schoolchildren. The case also serves as a reminder of the importance of judicial checks on executive overreach, especially in areas that affect fundamental rights such as education and health.
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