SHIF rollout unconstitutional, court rules

The High Court has declared that the nationwide rollout of the Social Health Insurance Fund (SHIF) on October 1, 2024, was unconstitutional, finding that the government launched the scheme before the necessary administrative and technological infrastructure was in place, leaving millions of Kenyans temporarily unable to access essential healthcare.

However, Justice Bahati Mwamuye declined to shut the system down, instead ordering the government to fix the identified gaps within 90 days under direct court supervision.

Delivering the judgment virtually on Wednesday, Justice Mwamuye found that the rushed launch violated Articles 28 and 43 of the Constitution, the rights to dignity and to the highest attainable standard of health.

"This was not a mere administrative inconvenience," the judge said.

"It was a failure that implicated the state's obligations to respect, promote, protect, and fulfil the right to health."

The court noted that more than 18.7 million Kenyans are already enrolled on the system, making nullification impractical and potentially more harmful than corrective action.

The Ministry of Health, the Social Health Authority, and the National Treasury have been jointly directed to file a comprehensive action plan with the court within 90 days.

The plan must guarantee that no person is denied emergency or life-saving medical treatment under any circumstances.

It must also introduce fair and effective means-testing mechanisms for workers in the informal and non-salaried sectors, a group that petitioners and civil society had flagged as bearing a disproportionate burden under the current contribution framework.

The court also flagged serious transparency failures in the procurement of the Integrated Health Information Technology System (IHITS), the digital backbone of SHIF, awarding the contract to the Safaricom Consortium under a specially permitted procurement process.

Justice Mwamuye found that while urgency may have justified bypassing standard competitive tendering, the documentation and public accountability safeguards required by law were not adequately met.

The contract was not nullified, but enhanced oversight has been ordered, and the government must include specific corrective steps on procurement compliance in its 90-day action plan.

Beyond the initial 90-day plan, the government and the Ministry of Health must file quarterly progress reports before the court for a full year, detailing concrete steps taken to progressively realise the right to health under Article 43.

The ruling places SHIF under an unprecedented period of judicial oversight, a signal that the court intends to hold the government accountable not just in law but in delivery.

"Universal health coverage cannot merely be proclaimed; it must be delivered in a manner that respects the dignity, health, and trust of the people,” Justice Mwamuye said.

The ruling follows a petition filed by Busia Senator Okiya Omtatah, together with activists Eliud Matindi and Magare Gikenyi, who moved to court in September 2024 seeking to halt the planned October 1 rollout of SHIF.

The petitioners argued that the subsidiary legislation needed to operationalise the Social Health Insurance Act was not in place, rendering the entire implementation unconstitutional, and called on the court to quash the regulations being used to facilitate the fund's launch.

In addition to challenging the rollout itself, Omtatah and his co-petitioners sought to ultimately annul the government's decision to award the Integrated Healthcare Information Technology System contract to the Safaricom Consortium, comprising Safaricom Plc, Konvergenz Network Solutions Limited, and Apeiro Limited, under Tender No. MOH/SDMS/ADM/SPPP/005/2023-2024.

The petitioners cited a lack of competitive tendering transparency and alleged fraudulent practices in the procurement process.

While the court declined to nullify the contract, Thursday's judgment vindicates the core of their argument, that the state moved too fast, cut too many corners, and paid too little regard to the constitutional rights of the very people the scheme was designed to serve.