Overview of Joseph Enock Aura v Cabinet Secretary, Ministry of Health & 11 Others (E473 of 2023) Case.

Joseph Enock Aura v Cabinet Secretary, Ministry of Health & 11 Others (E473 of 2023)

Background: The case was initiated by Joseph Enock Aura (the petitioner), challenging the constitutionality of three major pieces of legislation: the Primary Health Care Act, the Digital Health Act, and the Social Health Insurance Act, all enacted in 2023.

The petitioner argued that the laws were unconstitutional due to inadequate public participation in their enactment and that they infringed on various constitutional rights. Specifically, the petitioner claimed violations of Articles 43(1)(a) (right to health), 10 (national values), 118 (public participation), and 24 (limitations of rights), among others.

Petitioner's Arguments:

1. Public Participation Violations: The petitioner alleged that the legislative process did not adequately engage the public, violating Articles 10 and 118 concerning public participation in governance.
2. Procedural Irregularities: He contended that the statutes were rushed through Parliament without proper consultation and that the timelines for public input were insufficient.
3. Constitutional Violations: Claimed that specific sections of the Social Health Insurance Act were unconstitutional, particularly those that would condition access to healthcare services on registration and compliance, which could effectively deny critical health services to individuals in emergencies thus infringing upon the right to life and the right to healthcare as enshrined in the Constitution. The Petitioner also argued that certain provisions would lead to the exclusion of unregistered individuals from accessing public services, contrary to their constitutional rights.

Respondents' Defense: The respondents, comprising various government entities, defended the legislation, asserting that public participation was conducted through various forums, including targeted engagements and requests for memoranda from stakeholders in the health sector. They argued that the need for swift legislative action was essential to enhance access to health services.

Court's Findings:

1. Public Participation: The Court found that the processes followed in enacting the three impugned statutes fell short of constitutional requirements for meaningful public participation. The periods allocated were deemed inadequate considering the significance and complexity of the issues involved.
2. Legislative Process: The Court ruled that the enactment of the statutes did not comply with constitutional mandates, particularly those requiring the consultation of county speakers and adherence to public finance principles.
3. Constitutionality of Specific Provisions: The Court determined that while the intention behind the legislation was commendable, certain provisions, particularly those that limited access to emergency medical services based solely on preconditions, were unconstitutional.

Judgment:

• The Court granted the petition, finding the impugned laws unconstitutional due to failures in public participation and procedural irregularities.
• It ordered Parliament to rectify the breaches and ensure adequate public participation before legislative processes are resumed.
• The laws were suspended pending compliance, with a deadline for remedial action set for 120 days from the judgment date.

Consequences of the Judgment:

1. Suspension of the Laws: The three legislative acts were essentially put on hold, impacting the legal framework for health insurance and care in Kenya.
2. Mandate for Public Engagement: Parliament was directed to foster genuine public participation in future legislative processes, emphasizing accountability and transparency.
3. Potential for Legal Revisions: If Parliament fails to address the court's concerns, the laws could be entirely invalidated, necessitating a potential overhaul of health legislation in Kenya.

Overview of the affected legislation.

The Social Health Insurance Act establishes a framework for universal health coverage, emphasizing financial protection and stakeholder engagement. The Primary Health Care Act focuses on community-oriented health services, promoting local engagement and workforce development to ensure quality primary care. Meanwhile, the Digital Health Act lays the groundwork for a digital health framework, facilitating secure health information sharing and promoting e-health services, while ensuring the protection and ethical management of health data. Collectively, these laws strive to create a more equitable and efficient healthcare system in Kenya.

1. Social Health Insurance Act, No. 16 of 2023

Purpose: The Social Health Insurance Act aims to implement a comprehensive social health insurance system in Kenya to ensure that all citizens have access to affordable healthcare services. It seeks to promote equity in healthcare access, reduce financial burdens on individuals and households, and align with the constitutional right to health.

Key Provisions:

• Framework for Health Coverage: Establishes a structured system to guarantee access to necessary healthcare services for all Kenyans, regardless of financial status.
• Creation of the Social Health Authority: Mandates the establishment of this authority to oversee the implementation of the Act, manage funds, and regulate health service providers.
• Mandatory Registration and Contributions: Requires all Kenyans to register as members of the Social Health Insurance Fund (SHIF) and stipulates contributions from households and government entities for funding healthcare services.
• Management of Funds: Ensures that collected funds are allocated effectively to purchase healthcare services, enhancing sustainability.
• Dispute Resolution Mechanism: Introduces a tribunal to address grievances related to health insurance policies or claims, promoting accountability.
• Stakeholder Engagement: Encourages public participation in decision-making processes related to health insurance, reinforcing the inclusiveness of the system.

2. Primary Health Care Act, No. 13 of 2023

Purpose: The Primary Health Care Act focuses on the delivery and management of primary healthcare services in Kenya, with the overarching goal of realizing universal health coverage. It emphasizes community involvement and the provision of quality health services at the grassroots level.

Key Provisions:

• Promotion of Health Rights: Supports the realization of the right to the highest attainable standard of health, ensuring access to essential health services for all individuals.
• Community-Centric Health Services: Establishes clear roles for community health promoters and community health units to prioritize healthcare delivery at the local level.
• Formation of Primary Health Care Networks: Creates networks that facilitate collaboration among various health facilities and community units to streamline service delivery and integrated health management.
• Workforce Development Initiatives: Emphasizes training and empowering community health workers to enhance service quality and reach within communities.
• Public Participation: Promotes local engagement by involving communities in selecting health promoters, fostering ownership and accountability for health initiatives.

3. Digital Health Act, No. 15 of 2023

Purpose: The Digital Health Act seeks to establish a robust digital health framework to enhance healthcare service delivery through technology. It aims to ensure efficient health data management while maintaining privacy and security standards.

Key Provisions:

• Creation of the Digital Health Agency: Establishes this agency to oversee the implementation of an integrated health information system and promote best practices in digital health.
• Development of a Comprehensive Integrated Health Information System (CIHIS): Facilitates seamless and secure sharing of health information among providers, improving the continuity of care and public health outcomes.
• Regulation of Health Data Governance: Sets rigorous guidelines for managing health data, ensuring ethical use, classification, and protection of sensitive personal data.
• Promotion of E-Health Services: Encourages the use of digital health modalities, including telemedicine and electronic health records, to improve service delivery, especially for underserved populations.
• E-Waste Management: Addresses the environmental concerns associated with electronic waste produced by healthcare technologies, promoting sustainable practices in digital health initiatives.