Court declares SHIF unconstitutional, orders swift legislative action

In a pivotal judgement, the High Court has declared the Social Health Insurance Fund (SHIF) unconstitutional, mandating Parliament to undertake significant revisions within 120 days.

The ruling, delivered by Justices Alfred Mabeya, Robert Limo, and Friday Mugambi, emphasised the necessity for legislative compliance with constitutional requirements.

The court found that the SHIF Act had been enacted without sufficient public participation, a fundamental constitutional principle.

The justices stated unequivocally, "This should be done within 120 days. If they fail to, the Act shall remain suspended."

A primary concern raised by the court was the inequitable burden placed on a limited number of salaried individuals, resulting in significant disparities in contributions.

"We are prepared to allow Parliament to redeem itself and save the laws. The breaches that tainted the laws are redeemable within our findings and can be corrected," the bench asserted, providing Parliament with a chance to rectify the identified issues.

In addition to demanding legislative amendments, the court highlighted the need for comprehensive public education and engagement in the legislative process.

"Let Parliament undertake sensitization, adequate and inclusive public participation in accordance with the constitution before enacting the said act and amend the unconstitutional provisions in terms of this judgement," the ruling instructed.

The SHIF Act will remain suspended during this 120-day revision period.

The court’s decision also identified specific sections of the SHIF Act that infringed upon constitutional rights.

Sections 26(5) and 27(4) were particularly problematic, with the former making registration and contribution prerequisites for accessing public services, and the latter restricting healthcare access to those with up-to-date SHIF contributions.

The justices noted that these provisions failed to accommodate the right to emergency medical services, thereby violating Article 43 of the Constitution.

"We say so because the precondition set out in those two provisions infringes on the right to access emergency services on one hand while it is the same right that the state aspires to realize with the challenged acts," they explained.

This ruling underscores the essential alignment of legislative frameworks with constitutional mandates, ensuring fair and inclusive access to essential services for all citizens.

Parliament now faces a critical 120-day period to address these constitutional breaches and reform the SHIF Act accordingly.