The case contesting the application of three health laws has been taken up by a three-judge bench.
On Wednesday, Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi heard the petitioners' complaints regarding the Social Health Insurance Act's potential to prevent some Kenyans from accessing essential health services due to mandatory registration—which they claim is unconstitutional.
The government was among the respondents who defended the position, arguing that the law's provisions are designed to make it easier for health services to be delivered effectively.
The petitioners claim that the Social Health Insurance Act violates various healthcare-related provisions of the Constitution.
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The petitioners' attorney, Stanley Kinyanjui, objected to the clause stating that Kenyans who are not registered with the Social Health Authority will not be able to receive medical care in public hospitals.
"A person shall not be denied medical services, there are no preconditions there, a doctor is on call for you, but under this legislation, the receptionist checks and says tada! You have not registered and service is denied. Can you then incise, remove section 25, 26, 27 because they offend the Constitution and over reach the scope of the first respondent's mandate," argued Kinyanjui.
Senior Counsel Fred Ngatia, however, informed the court that to ensure the provision of government services, the government must require all Kenyans to register with the Social Health Authority and maintain current payments.
"NHIF should transition from collecting voluntary contributions and adopt mandatory tax deductions. UHC cannot be achieved through voluntary mechanisms, Article 43 will collapse. It is bound to collapse because there must be away to compel all of us to pay, because finance is not an impediment, why would you refuse to register? Because you have wilful reasons to refuse to register," retorted Ngatia.
The Kenya Medical Practitioners, Pharmacists, and Dentists Union, the Union of Kenya Civil Servants, Joseph Enock Aura, and other health organizations have filed a petition opposing the Social Health Insurance Fund (SHIF) registration requirement for all Kenyans over eighteen.
Section 26(5) of the Act, which instructs the national and county governments to refuse services to anyone not registered for SHIF, was explicitly mentioned by the petitioners' attorney, who claimed it violates the Kenyan Constitution.
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"This is draconian. We cannot have a dichotomising of Kenyan citizens in those two classes. It creates a dichotomised class of Kenyans, those who are registered and fully paid up, they are able to access government services, then there are the others who are not registered and cannot access government services," Kinyanjui stated.
Ngatia noted: "Let no Kenyan approach this court saying this law denies them emergency medical care. It says you can't access public services. That is not a constitutional right. The so called access to public service is not equal to denial of constitutional rights because constitutional rights are not public service."
The three-judge bench is also expected to rule on whether Kenyans' right to privacy is violated by the Digital Health Act, which describes a system for digitally obtaining and maintaining health records.
On Thursday, the case will still be pending.
