Petitioners give Uhuru’s UHC plan a taste of own medicine

Tuesday, July 5th, 2022 07:15 | By
Former President Uhuru Kenyatta makes his remarks during the opening of the Kenya-Portugal Business Forum. PHOTO/ PSCU.

One of President Uhuru Kenyatta’s legacy projects, Universal Health Care (UHC), lies in the limbo after the Employment and Labour Relations Court (ELRC) yesterday stopped its implementation.

The anticipated transformation of National Hospital Insurance Fund (NHIF) into National Health Insurance Fund (NHIF), that would have seen Kenyans enjoy the fruits of UHC, has suffered three major blows from the courts in the past three months.

Three court rulings have put in abeyance Sections 16, 17 and 23 of the NHIF Act, which compelled employers to march the contributions of their workers.

The rulings were based on two petitions by Nubian Rights Forum (NRF) and Federation of Kenya Employers (FKE) seeking to stop the new NHIF Act and, consequently, UHC.Commencement of UHC entailed transformation of National Hospital Insurance Fund into National Health Insurance Fund, with the current management board running the latter.

 Rejected request

In a ruling on June 29 by Justice Nzioki wa Makau of ELRC, Eldoret, the court dismissed petitions by NHIF, Health CS Mutahi Kagwe and Parliament to overrule suits challenging enforcement of National Health Insurance Fund (Amendment) Act 2022. Justice Makau rejected the request by NHIF and its CEO, Peter Kamunyo, to throw out the petition by Nubian Rights Forum. “The preliminary objection by the respondents (NHIF and Kamunyo) has no basis and is accordingly dismissed,” he ruled.

Kamunyo had sought to have the entire proceedings filed by the lobby group dismissed for lack of jurisdiction by the court. “The petition is amorphous, incompetent, and fatally defective and ought to be struck out for non-disclosure of any cause of action,” the NHIF boss had stated.

In another ruling on June 24, Justice Monica Mbaru of ELRC, Nairobi, had also dismissed a request by the National Assembly to have the FKE petition, challenging implementation of the NHIF Act, struck out on similar grounds — that the court lacked jurisdiction.

“This is not a petition for transfer to the High Court, as proposed by the National Assembly. It is well placed before this court for hearing and determination. The matters arose from the employer’s body and, relating to application of the NHIF Act and the amendment thereof within employer and employee relations, and for connected purposes. To deny jurisdiction would be to avoid a Constitutional role well posited with the court,” ruled Justice Mbaru.

Without merit

The judge added: “The objections by the National Assembly dated May 6, 2022, are hereby found without merit and are dismissed”. This means that the orders suspending the enforcement of National Health Insurance Fund (Amendment) Act 2022 will remain in force until the main petitions are heard and determined.

But Justice Mbaru allowed the NHIF board, chaired by former Kikuyu MP Lewis Nguyai, to continue with day-to-day operations while steering clear of UHC.

An earlier ruling on April 2 by Justice Maureen Onyango (ELRC) suspended the anticipated transformation of National Hospital Insurance Fund into National Health Insurance Fund, and halted the formation of a management board to oversee NHIF.

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