The Kenyan High Court recently rendered several key health acts unconstitutional. The landmark decision of Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment) has reverberated across Kenya's legal and healthcare landscapes.
This Judgement marks a pivotal moment in the country's judicial history, with far-reaching implications for healthcare policies, digital health initiatives, and social health insurance schemes.
Background of the Case
The petition was filed by Joseph Enock Aura against the Cabinet Secretary, Ministry of Health, and other respondents, challenging the constitutionality of several health-related Acts passed by the Kenyan Parliament in 2023.
The case in question challenged the constitutionality of three crucial pieces of legislation:
Primary Health Act: Enacted to provide a framework for the delivery of primary healthcare services across Kenya, the act aimed to improve access to essential health services for all citizens.
Digital Health Act: Introduced to regulate and govern the use of digital technologies in the healthcare sector, including telemedicine, electronic health records (EHRs), and health data management.
Social Health Insurance Act: Designed to establish a comprehensive social health insurance scheme aimed at providing financial protection and equitable access to healthcare services for Kenyan citizens.
The petitioner argued that these Acts violated various provisions of the Kenyan Constitution, particularly those related to public participation and the right to health.
Legal Arguments
The Plaintiffs, represented by a coalition of advocacy groups and legal experts, challenged these acts on various constitutional grounds. Key arguments included violations of the right to health, privacy concerns related to health data, and issues of equity and access in healthcare provision.
In its ruling, the High Court found that aspects of these acts were inconsistent with the provisions of the Kenyan Constitution. Specifically, the court highlighted failures in:
Key Issues Raised
Public Participation: One of the central issues in the case was whether there was adequate public participation in the enactment of the contested Acts. Article 10 of the Kenyan Constitution mandates public participation in the legislative process, and the petitioner argued that this requirement was not met.
Right to Health: The petitioner also contended that the Acts infringed upon the right to health as enshrined in Article 43 of the Constitution. Specifically, the Social Health Insurance Fund Act was criticized for making access to healthcare services contingent upon registration and contributions to the fund, which could potentially exclude vulnerable populations.
Digital Health and Privacy: The Digital Health Act, 2023, was challenged on grounds of privacy and data protection. The Act required the unique identification of every Kenyan for health services, raising concerns about data security and privacy.
Protection of Fundamental Rights: The court determined that certain provisions within the acts did not adequately safeguard the fundamental rights of Kenyan citizens, particularly concerning access to healthcare and privacy rights.
Legislative Oversight: Concerns were raised about the adequacy of legislative oversight and public consultation during the drafting and implementation of these acts.
Equity and Access: Issues regarding the equitable distribution of healthcare resources and access to services for marginalized populations were also addressed, with the court criticizing certain provisions as exacerbating rather than mitigating existing disparities.
Court’s Decision
On July 12, 2024, the High Court at Nairobi (Milimani Law Courts) delivered its judgment. The court, comprising Hon. Justice Alfred Mabeya, Hon Justice Robert Limo, and Hon. Lady Justice (Dr). Freda Mugambi, found in favor of the petitioner on several grounds.
Public Participation: The court held that the process of enacting the contested Acts did not meet the constitutional threshold for public participation. The court emphasized that public participation must be adequate, reasonable, and inclusive.
Right to Health: The court declared that certain provisions of the Social Health Insurance Fund Act, 2023, were unconstitutional. Specifically, sections that made healthcare access conditional on registration and contributions were found to violate the right to health.
Digital Health Act: The court also found that the Digital Health Act, 2023, did not adequately safeguard the privacy and data protection rights of individuals. The requirement for unique identification was deemed intrusive and unconstitutional.
Orders Issued by the Court
The court issued several orders, including:
Suspension of the Acts: The Social Health Insurance Fund Act, 2023, the Digital Health Act, 2023, and the Primary Health Care Act, 2023, were suspended for 120 days to allow for compliance with the court’s directives.
Public Participation: The court directed Parliament to undertake adequate, reasonable, and inclusive public participation before re-enacting the Acts.
Costs: Given the public interest nature of the litigation, each party was ordered to bear its own costs.
Implications of the Judgment
The judgment in Aura v Cabinet Secretary, Ministry of Health & 11 others has far-reaching implications for Kenya’s health sector and legislative process.
Enhanced Public Participation: The ruling underscores the importance of public participation in the legislative process. It sets a precedent that laws affecting fundamental rights must involve meaningful engagement with the public.
Right to Health: The decision reinforces the constitutional right to health, ensuring that access to healthcare services cannot be unduly restricted by legislative provisions. This is particularly significant for vulnerable populations who may face barriers to registration and contributions.
Data Privacy and Security: The judgment highlights the need for robust data protection measures in health legislation. It calls for a balance between leveraging digital health technologies and safeguarding individual privacy rights.
Policy Reevaluation: The government and stakeholders in the healthcare sector are now compelled to reassess and potentially revise existing policies and legislative frameworks to align with the court's findings.
Healthcare Financing: The future of social health insurance schemes in Kenya hangs in the balance, as policymakers grapple with ensuring sustainable and equitable financing mechanisms for healthcare.
Future Directions and Challenges
Moving forward, stakeholders will need to collaborate closely to address the deficiencies identified by the court while balancing the need for robust healthcare policies with constitutional imperatives. Key challenges include:
Legal and Regulatory Reform: Revisiting and amending existing legislation to ensure compliance with constitutional standards while promoting innovation and efficiency in healthcare delivery.
Public Engagement: Enhancing public participation and consultation in the formulation and implementation of healthcare policies to foster transparency and accountability.
Capacity Building: Strengthening institutional capacity within the healthcare sector to effectively implement revised policies and uphold constitutional rights.
Conclusion
Kenyan High Court Declares Health Acts Unconstitutional: Aura v Cabinet Secretary, Ministry of Health & 11 others. The ruling on the constitutionality of the Primary Health Act, Digital Health Act, and Social Health Insurance Act marks a critical juncture in the evolution of healthcare law in Kenya.
While posing significant challenges, this decision also presents opportunities for stakeholders to redefine and enhance the country's healthcare landscape in alignment with constitutional principles of equity, access, and fundamental rights.
For more information, the see the full Judgement in Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment)
