Public participation submissions to the Social Health Insurance Act 2023

As 254Hope, a voluntary association dedicated to good governance and constitutionalism, we have thoroughly examined the draft regulations for the Social Health Insurance Act, 2023. Our collective expertise spans various professional backgrounds, including health, law, education, agriculture, and environmentalism.

We have submitted several concerns and recommendations regarding the proposed regulations. Firstly, we argue that the contributions outlined resemble income tax rather than a non-tax statutory deduction. We suggest that registration and contribution should not be compulsory for all income earners, citing issues such as double taxation and the lack of proportionality between contributions and benefits.

We emphasised that the power to tax the world over resides in the people’s parliament and cannot be delegated. The Cabinet Secretary’s power to make regulations did not amount to a power to impose an income tax.

Furthermore, we have identified clauses within the regulations that expand the authority beyond the scope outlined in the parent Act. We strongly recommend the deletion of these clauses to ensure adherence to the law’s original intent.

Additionally, we caution against the premature revocation of certain regulations before the complete winding up of the National Health Insurance Fund (NHIF). Given the potential legal challenges and constitutional infractions, we propose that NHIF regulations continue to apply until the Social Health Insurance Fund (SHIF) is fully operational.

Overall, our aim is to ensure that the regulations for the Social Health Insurance Act align with principles of fairness, legality, and accountability, ultimately benefiting all stakeholders involved.

As 254Hope, we submitted a memorandum to address our concerns regarding the decision of the Independent Electoral & Boundaries Commission (IEBC) to bar impeached officials from participating in the 2022 general elections. Our organisation was dedicated to promoting good governance and believed that this decision warranted closer examination.

We were troubled by the lack of public participation in the decision-making process leading to this directive. According to Article 10 of the Constitution, public involvement was crucial in such matters, yet it appeared to have been overlooked in this instance.

Our memorandum delved into the constitutional principles governing the exercise of power. We highlighted the distinction between sovereign power, vested in the people, and delegated power, exercised by government entities. We argued that limitations on the people’s sovereignty should be narrowly construed and implemented.

Furthermore, we contended that specific provisions in Articles 99 and 193 of the Constitution, which addressed the disqualification of elected officials, should take precedence over the general provision in Article 75(3). This meant that disqualification should only occur after exhausting all possibilities of appeal or review of a finding of a violation of Chapter Six of the Constitution.

We also advised that a finding capable of derogating a person’s right to view and disenfranchise innocent voters from electing a person of their choice ought to be a judicial finding and not a finding made by a political impeachment process.

Ultimately, our goal was to ensure the protection of the people’s sovereignty, democratic values, and constitutionalism, which were fundamental objectives of the IEBC. We cautioned against any measures that might impede the people’s exercise of sovereignty, particularly through indirect means like impeachment.

In summary, we urged the IEBC to reconsider its decision in light of our concerns and to uphold the principles of inclusivity and constitutional integrity in its decision-making processes.

In 2023, the County Public Service Board of Vihiga released an advertisement for various positions within the county government, including Chief Officer roles in different departments. However, what ensued was a concerning hiring process characterised by opacity, arbitrariness, and potential compromise, blatantly disregarding established principles and constitutional norms regarding public service. Some candidates who failed to meet requirements were inexplicably shortlisted for interviews, while qualified individuals were arbitrarily overlooked. Subsequently, the initial advertisement underwent unprocedural and retrospective amendments.

In response, 254hope took action by petitioning the Vihiga County Assembly in 2023. Despite our efforts, our petition was dismissed, prompting us to pursue legal recourse by filing a lawsuit at the High Court, demanding a rerun of the entire selection process. A judgement on the matter is expected from the court on February 14th, 2024.

In 2022, the Governor of the County Government of Vihiga appointed a gentleman as the Minister for Health (County Executive Committee Member for Health) who did not fulfil the legal requirements. The appointee’s background was in education as a teacher, while the County Assembly of Vihiga had enacted a law stipulating that the Minister of Health must possess a technical background in healthcare. In response, 254hope took this matter to the Employment Labour Relations Court (ELRC) which was defeated on the grounds that 254hope had not tried to bring the issue to the attention of the County Assembly of Vihiga prior to moving to court.

The Building Bridges Initiative (BBI) was initiated in 2018 by President Uhuru Kenyatta and former Prime Minister Raila Odinga, aiming to tackle diverse governance issues in Kenya, spanning electoral reforms, devolution, inclusivity, and ethnic tensions.

Despite its professed noble goals, we identified two primary concerns with the initiative. Firstly, the proposed reforms constituted a patchwork of numerous suggestions, where some held merit while others seemed to cater to the political elite’s wish list. For instance, the proposal to expand the executive branch, adding new seats like that of a prime minister and additional parliament members, in a country already grappling with significant overrepresentation.

Secondly, we challenged the constitutional validity of the initiative. We contested the government’s authority to amend the constitution through the popular initiative route and emphasised the necessity for a more rigorous public participation process.

Taking our concerns to the High Court of Kenya, our stance was vindicated in May 2021 when the court ruled in our favour, deeming the BBI process unconstitutional. The court highlighted numerous irregularities in its formulation and execution, particularly citing inadequate public engagement.

Subsequent appeals by the government to the Court of Appeal and the Supreme Court of Kenya failed to overturn the initial ruling, with all courts upholding the High Court’s decision, affirming our initial assessment.