The Court of Appeal has temporarily halted the High Court’s decision that invalidated three critical health laws in Kenya, allowing the continued implementation of the laws pending appeal. The appeal, filed by the Cabinet Secretary for Health and the National Assembly, challenges the earlier ruling, which could have disrupted healthcare reforms essential to the country’s health sector.
The three laws in question — the Digital Health Act, the Primary Healthcare Act, and the Social Health Insurance Act (SHA) — have been instrumental in overhauling the healthcare framework in Kenya. The implementation of these laws marked a shift from the National Health Insurance Fund (NHIF) to the newly established Social Health Insurance Authority (SHIA), which took over the NHIF’s mandate under the SHA. The laws had been operational since November 22, 2023, replacing the outdated NHIF Act, and have now been at the center of a heated legal battle for nine months.
The Court’s Ruling
The three-judge bench, consisting of Justices Francis Tuiyott, Ali Aroni, and Lydia Achode, emphasized the importance of maintaining the current laws until the appeal process is concluded. The court’s decision to stay the High Court’s ruling provides temporary relief to the government, which had expressed concerns about the negative impact the ruling could have had on the health sector.
“We reached this decision because the statutes have been with us for nine months. Allowing the health sector to revert to the old framework, with the possibility of it shifting back again if the appeal succeeds, would put this undeniably crucial sector in a state of flux and uncertainty,” the Judges stated in their ruling.
The Court further directed that the case be urgently referred to the President of the Court of Appeal for priority hearing to ensure the matter is resolved swiftly. This signals the court’s recognition of the potential challenges posed by prolonged legal uncertainties over the laws that have already been in effect for a significant period.
The High Court’s Ruling
The legal dispute began when Joseph Enoch Aura, a petitioner, challenged the three health laws, arguing that they were enacted without adequate public participation, a constitutional requirement in Kenya. The High Court, after reviewing the case, ruled in favor of the petitioner, invalidating the laws due to perceived shortcomings in the legislative process.
The invalidation of these laws threatened to disrupt Kenya’s health system, which had begun to adapt to the new framework established by the SHA, along with the integration of digital health services and enhanced primary healthcare structures. The ruling, however, led to an immediate appeal by the Health Cabinet Secretary, with support from the National Assembly.
Government’s Defense
In their defense, both the National Assembly and the Health Ministry argued that the laws had undergone extensive public consultation before being enacted. They emphasized that returning to the previous NHIF structure could create confusion and destabilize the health sector, which was already progressing under the SHA. The government also underscored the importance of continuity in health sector reforms, particularly in the face of Kenya’s growing healthcare demands.
The SHA was designed to provide a more comprehensive approach to health insurance, moving away from the NHIF’s structure to ensure more equitable access to healthcare across the country. It introduced reforms aimed at addressing the gaps in health coverage, especially for vulnerable and underserved populations.
Impact of the Appeal
The Court of Appeal’s stay order allows the government to continue implementing the three health laws as the appeal process unfolds. This means that healthcare providers, insurers, and citizens will continue to operate under the SHA, Digital Health Act, and Primary Healthcare Act, which are crucial for expanding access to healthcare services and integrating digital health solutions.
The outcome of the appeal will be keenly watched by stakeholders in the health sector, including policy makers, health practitioners, and citizens who depend on these reforms for affordable healthcare services. Should the appeal succeed, it will provide a legal affirmation of the government’s ongoing healthcare reforms. However, if the appeal is unsuccessful, the government may face challenges in reenacting or amending the laws in question.
The case represents a critical juncture for Kenya’s healthcare system, highlighting the importance of legal clarity in ensuring the success of wide-reaching health reforms. As the legal battle continues, the focus remains on how these laws will shape the future of healthcare delivery in Kenya.
