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President William Ruto’s new healthcare plan has suffered a major setback after governors rejected it on grounds that certain sections of the law are unconstitutional and meant to reverse some devolved functions.

The governors say the decision by the government to deny essential services to individuals who would not have registered as members of the envisaged Social Health Authority (SHA) is unconstitutional, undemocratic and a contradiction to the United Nations’ 2030 Agenda for Sustainable Development Goals (SDGs) that access to quality essential health-care services and access to safe, effective, quality and affordable essential medicines.

The county chiefs now want the High Court to declare the particular sections of the law unconstitutional and bar the President from implementing the scheme.

In a response filed by the Council of Governors (CoG) in a petition lodged in court by activist Joseph Enock Aura, the governors have opposed some sections of the Social Health Insurance Act, arguing that they are unconstitutional as they purport to usurp the roles of the county governments in the provision of health services to the citizens.

“We urge the court to find and hold that the impugned provisions of the Social Health Insurance Act are unconstitutional both in purpose and effect,” the governors through lawyer Eugene Lawi states in their affidavit.

According to the governors, some provisions in the Act would also impose an unnecessary burden on the country and strain the already scarce resources. The CoG argues that sections 26(5), 2791) (a), 27(4) and 47(3) of the SHI Act are unconstitutional and unlawful and ought to be quashed.

“Your honour, section 26 (5) of the SHI Act limits the constitutional rights of citizens to access the services provided by the government unless they are registered under the Social Health Insurance Act. We submit that this amounts to an unreasonable limitation of the constitutionally guaranteed rights and fundamental freedoms,” the 47 county bosses argue.

The CoG further submitted that Section 47 (3) of the Social Health Insurance Act violates the constitutional right of citizens to access affordable quality health by requiring every Kenyan to be uniquely identified using biometrics for purposes of provision of health services.

While seeking to have some sections of the Act quashed, the governors say that a statute enacted by parliament cannot purport to take away constitutionally guaranteed rights, freedoms and mandates from both citizens and County Governments.

Constitutional rights

“It is our further submission that section 27(4) of the Social Health Insurance Act requiring that all contributions shall be active and up to date in order to access health care services poses a great threat to the constitutional right of citizens to access emergency health treatment. Thus, it is in contravention of Article 43 (2) of the Constitution which provides that no person shall be denied emergency medical treatment,” the CoG states.

The governors have accused the Health Cabinet Secretary Susan Nakhumicha of failing to engage them substantively before the enactment of the law.

“Your honour, County Governments are key players in the health sector as they are mandated to undertake health delivery services to the citizens. That fact notwithstanding, the Health CS failed to consider critical concerns raised by the Council of Governors during the legislative making process. These include Sections 27(1) (d) and 27(2)(c) of the SHI Act requiring County Governments to contribute towards the fund,” Lawyer Lawi says.

In addition, COG argues that the mandated financial commitments impose additional financial burden on County Governments, which may adversely impact their ability to efficiently carry out essential functions and services.

The mandatory contribution by the county governments as provided in the sections potentially leads to a strain on the counties’ financial resources, the CoG said.

“The principle that resources must follow functions is a cornerstone of effective governance, ensuring that the allocation of resources aligns with the responsibilities and functions of each level of government,” they say.

Further, the governors also argue that the Primary Health Care Act, 2023 usurps the role of the county governments and jeopardises the constitutionally assigned health service delivery function in violation of the Fourth Schedule of the Constitution.

According to the 47 county bosses, the role of the national government is defined and limited to developing and maintaining an organisational structure of the Ministry at the national level consisting of technical directorates.

Administrative structures

“As such, the CS Ministry of Health cannot purport to prescribe for county governments the establishment of various governance and administrative structures,” lawyer Lawi argues in the affidavit.

Some sections complained of requiring county governments to establish governance and administrative structures including community health units in accordance with national guidelines, a requirement that has not been put in place.

The case failed to proceed on Wednesday for hearing as some parties were yet to file responses or submissions as directed by High Court Judge Chacha Mwita last year.

The case will now be heard on February 23.

The implementation of the Act was suspended last year following a petition by Aura but the Ministry of Health successfully petitioned the Court of Appeal to lift the suspension.

A ruling rendered on January 26, 2024, by three judges of the Appellate court, however, suspended three sections of the laws including section 26 (5) which makes registration and contribution a precondition for accessing public services from the national and county governments or their entities.

The bench also put on hold Section 27(4) which provides that a person shall only access healthcare services if their contributions to the SHIF are up to date and active and Section 47 (3), which obligates every Kenyan to be uniquely identified for purposes of provision of health services.

In his petition, Aura has urged the High Court to have the Social Health Act 2023, the Primary Health Care Act 2023 and the Digital Health Act 2023, which replaced the National Health Insurance Fund (NHIF), quashed arguing that it is unconstitutional.

The petitioner argues that there was no meaningful public participation undertaken before the impugned statutes were signed into law by President Ruto on October 19, 2023, thus making them unconstitutional, null and void.

Aura says that the provisions lead to a violation of the objects of devolution as set out under Article 174 of the Constitution by clawing back on the counties’ service delivery mandate.