Health Cabinet secretary Aden Duale.[Courtesy]
The Pending Medical Claims verification committee formed by Health Cabinet secretary Aden Duale on March 28 to audit claims against the defunct National Hospital Insurance Fund (NHIF) has been kicked out of office by the high court.
Justice Reuben Nyakundi of the high court in Elndoret ruled that the committee established under a gazette notice has no legal basis and its work would have been in contravention of Article 31 of the constitution and the Social Health Authority (SHA) Act.
Nakuru based medic and activist Dr. Mangare Gikenyi had petitioned the high court to declare that the CS lacked powers under the constitution or national government and coordination Act to empanel a committee to verify the claims and the committee is therefore unconstitutional.
Gikenyi argued that the actions of the CS exposed patients’ sensitive and confidential data about their illnesses to other people without the consent of the patients and similarly contravened the digital health records contrary to provisions of Digital Health Authority (DHA).
He had listed the constitutional violations including the Bill of rights, that were threatened by the CS in appointing the committee.
Justice Nyakundi said upon considering the pleadings, submissions, replying affidavits and attendant authorities, he finds that the petition is merited and succeeds.
The judge said the powers exercised by Duale, though conferred by the relevant legislations, were used for a purpose different from that envisaged by the law under which they were granted to the cabinet secretary.
“This (establishing the committee), was a void decision being invalid from its inception and from the standpoint of the constitution, it has no legal effect,” stated Nyakundi.
“The petitioners have a legitimate expectation that all state officers and state organs had to follow the constitution including the statutory requirements of ensuring that they should never perform functions of independent commissions and offices and if there was any contrary to this expectation (the CS) violated the legitimate expectations of Kenyans.”
Dr. Gikenyi had argued that the committee would have usurped the powers and functions of the office of the Auditor General, an independent office established by the constitution as well as take up duties of the Internal Audit office.
The medic argued that the CS should have required the Auditor General to carry out the audit if there was any need for the same but did not have powers to establish any other institution to do the work of the constitutional institution established for carrying out public audits.
