The Court of Appeal has decided not to lift the High Court’s orders declaring three health laws unconstitutional, which had aimed to implement a new health insurance scheme.
Instead, the Court of Appeal ruled that the matter would remain pending until it determined the validity of the High Court’s orders, which had also been stayed for 45 days to allow the government time to comply.
The delay in addressing the government's appeal further hampers President William Ruto's health plan, which remains stalled. Judges Francis Tuiyot, Lydia Achode, and Abida Ali of the Court of Appeal expressed concerns that fully agreeing with the High Court’s ruling could result in significant public harm and increased costs.
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Last month, the High Court’s decision by Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi found that the new healthcare program lacked adequate public participation. The court declared the Social Health Insurance Act 2023, the Digital Health Act 2023, and the Primary Healthcare Act 2023 unconstitutional and invalid.
In response, the government sought relief from the Court of Appeal to overturn the High Court’s finding. The High Court had highlighted disparities in the Social Health Insurance Act, noting that it would disproportionately impact specific salaried individuals by creating unequal contribution levels.
The court mandated that Parliament engage in proper public participation in line with constitutional requirements before passing these laws. Parliament was given 120 days from July 12 to address the issues, with the court staying the ruling for an additional 45 days.
The High Court also noted that several clauses in the acts violated Article 43 of the Constitution, which mandates unique identification for health service provision. The Court of Appeal is scheduled to reconvene on September 20, 2024, to decide whether to uphold or overturn the High Court’s orders.
