The Court of Appeal has stayed the High Court’s ruling that declared the Social Health Insurance Act (SHA) unconstitutional.
The Act establishes three Funds namely, Primary Health Care Fund, Social Health Insurance Fund (SHIF) and the Emergency Chronic and Critical Illness Fund.
In a ruling on September 20, a three-judge bench suspended the High Court order that declared SHA unconstitutional until the Ministry of Health’s appeal is heard and determined.
The Court of Appeal ruled that since the act had been in effect for nine months, the National Health Insurance Fund (NHIF) is inoperable and cannot be revived by merely revoking Section 54 of SHA, which repeals the NHIF Act.
To prevent irreversible government actions related to SHA’s implementation during the stay, the Court ordered an expedited hearing of the case.
The Court recalled that Parliament enacted the SHIA, the Digital Health Act, and the Primary Health Care Act on October 19, 2023.
Health Cabinet Secretary said that the three statutes are aimed to transform healthcare services in the country and represent a significant step towards fulfilling the right to health.
However, on July 12, 2024, the High Court declared all three statutes unconstitutional. The Cabinet Secretary, dissatisfied with that decision, filed a notice of appeal on July 23, 2024, indicating her intention to challenge the ruling.
Court Grants SHIF Stay Orders
The Court noted that the statutes’ implementation does not entirely depend on the existence of regulations.
According to the Court, the key provisions of SHA and the Primary Health Care Act suggest that the regulations are meant to enhance the execution of the statutes, not serve as a prerequisite for their operation.
Also Read: New Directive Issued on SHIF Registration for Students
“In these intractable circumstances, we lean towards granting the stay while the High Court decision is tested before this Court, and an authoritative pronouncement is made regarding the validity of the three statutes,” read the ruling.
The Court explained that since the statutes have been in effect for nine months, reverting the health sector to its previous framework and potentially switching back again if the appeal succeeds would create instability.
Therefore, the validity of the statutes needs to be resolved swiftly and definitively.
Also Read: What Will Happen to Patients on NHIF When SHA is Rolled Out? Ministry of Health Explains
Case to be Prioritized
For this reason, the Court directed that the appeal be prioritized to avoid prolonged uncertainty.
“In the end, we grant the stay sought in prayer C of the notice of motion dated July 26, 2024, pending the hearing and determination of the appeal, but with no order as to costs,” read another part of the ruling.
The Court further directed that the case file be immediately placed before the President of the Court for urgent hearing instructions.
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