A digest of Republic v National Hospital Insurance Fund Board of Management & Another Ex Parte Law Society of Kenya  eKLR
Article 43(1) (a) of The Constitution of Kenya 2010 provides that every person has the right to the highest attainable standard of health, which includes right to health care services, including reproductive health care. This right is aspirational given that Kenya still has a long way to go to get to the standards envisioned in The Constitution.
When the President took office in 2017 He announced his administration’s big four agenda. One of the agendas is Universal Health Coverage by 2022, what this means is that the administration plans to provide a medical cover to each Kenyan by 2022. This is being done by scaling up the National Health Insurance Fund (NHIF) uptake.
Section 15 of the NHIF Act provides that any person above 18 years, resident in Kenya and with an income of more than KES.1,000 per month whether salaried or from self-employment is liable to contribute to the fund. For salaried folk the contribution is determined by their income while all other persons including self-employed people monthly contribution is KES.500. The Regulation of Wages Order 2018 prescribes the minimum wage of a General Laborer at KES.7,240.95 p.m. as such it is expected that a majority of Kenyans can afford to make the contribution. NHIF also allows one to include a spouse and children as beneficiaries so ideally everyone should be covered and the goal for Universal Health Coverage is within reach.
On 22nd February 2018 NHIF issued a directive that any person applying to include a spouse in their cover must provide proof of marriage. NHIF contended that, “The process of identification is necessary to avoid fraud or extending benefits to unqualified persons, resulting in loss of public funds.” While this is not an unreasonable requirement, NHIF went ahead to require that couples without a marriage certificate must produce affidavits commissioned by Magistrates only and not Advocates. The requirement for affidavits from Magistrates was absurd not only because it attempted to take away Advocates power to commission oaths but also because it placed unnecessary costs and hardship to the public because there are not enough Magistrates spread out in the country to ensure that affidavits are commissioned. Subsequently, the Law society of Kenya moved to court in Republic v National Hospital Insurance Fund Board of Management & Another Ex Parte Law Society of Kenya  Eklr for judicial review. This article will advice on affidavits, the courts determination and its implications.
What is the value of an affidavit?
Most people have sworn an affidavit at one point or another however, many do not understand their purpose, nature or implication. Affidavits can be likened to the infamous Mau Mau oaths. Mau Mau fighters made as a solemn vow to God and to the movement that they would be united in the fight for their land and that they would be unwavering in their resolve despite the difficulties. If they betrayed the oath they would pay with their lives. The oath was administered by a revered elder and sealed with blood. Obviously, the practice of pledging your life to an oath with blood has died down (we hope). However the law has devised a way through which people can make solemn oaths to the truth of particular matters through affidavits.
Affidavits are simply a way to verify the truth of something. When you swear an affidavit you are making an oath that what you are saying is true. Because of the sacrosanct nature of affidavits they cannot be sworn just before anybody. Just like the Mau Mau oaths only a few revered persons can commission an affidavit. Section 2 of the Oaths and Statutory Declarations Act grants the Chief Justice the power to appoint practicing Advocates to be commissioners for oaths. Section 8 and 12 of the Act further provide that a Magistrate, Registrar of the High Court, Deputy Registrar and District Registrar may administer an oath or affidavit. Owing to their solemn nature, there are repercussions for lying on an affidavit. Section 108 of the Penal Code provides that lying under oath is a criminal offence and upon conviction one is liable to imprisonment for a term not exceeding two years and a fine not exceeding KES.2,000 or both.
Marriage and Affidavits
By now you must be wondering what marriage has to do with affidavits and by extension the NHIF directive. Usually when you marry or get married the Government issues you with a marriage certificate as proof of the marriage. However, before the Marriage Act 2014, customary marriages were not registered and therefore were not issued with marriage certificates. In order to prove the marriage couples had to swear an affidavit that they are spouses married under customary law. Following enactment of the Marriage Act No. 4 of 2014 all marriages must be registered and customary marriages celebrated before the act came into force ought to be registered by 31st July 2020. See the following article for the process of registration of customary marriages Planning a customary marriage? Here’s what the Law Requires of You.
Secondly, where a man and a woman are not formally married but cohabit for an extended period, have children/carry themselves as husband and wife, under common law a marriage may be presumed to exist. This was the case in Hottensiah Wanjiku Yawe v Public Trustee. Civil Appeal No. 13 of 1976. Yawe a Ugandan citizen resident in Kenya was killed in a road accident. The Appellant (Hottensiah Wanjiku) claimed to be his widow and had 4 children. However some claimants from Uganda denied stating the deceased was not married. Evidence was produced showing that the deceased had lived together with the appellant for 9 years and when he applied for a job he listed the Appellant as his wife. The Court held that long cohabitation as man and wife gives rise to presumption of marriage.
Before the directive on 22nd February 2019, persons who wished to include their spouses in their NHIF cover only had to produce the ID of the spouse and they would be added. This was abused by ingenious Kenyans who took the opportunity to include other persons who were not their spouses as beneficiaries. The directive was aimed at rooting out fraud and ensuring only legitimate spouses are able to benefit from the funds. Unfortunately, NHIF made a blunder when they directed that they would only accept affidavits from Magistrates. As we saw earlier, the Chief Justice appoints Advocates to be Commissioners for oaths and for the most part almost all affidavits are commissioned by Advocates. Requiring that only Magistrates could commission the affidavits was ridiculous given that most already have heavy caseloads and they are significantly fewer than Advocates. The directive also meant that Advocates could not earn income from commissioning the affidavits as a result the Law Society of Kenya went to court for judicial review orders.
Republic v National Hospital Insurance Fund Board of Management & Another Ex Parte Law Society of Kenya  eKLR
The Applicant (LSK) sought orders to: quash the first Respondent’s (NHIF Board) directive disregarding marriage certificates commissioned by Advocates and compel the first Respondent to accept affidavits of marriage commissioned by Advocates. The court found that the directive was illegal, unreasonable and tainted with procedural impropriety as the first respondent’s have no legal mandate to prescribe documents that an Advocate can commission once appointed under the Oaths and Statutory Declarations Act. The court further found that the First Respondents violated Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, by failing to notify the Applicants of the decision and affording them an opportunity to be heard. The court thereby quashed the directive and directed NHIF to accept affidavits of marriage commissioned by Advocates.
Following the court’s determination any person who wishes to include a spouse as a beneficiary must provide proof of the marriage. Where there is no marriage certificate an Affidavit of Marriage commissioned by an Advocate is sufficient. LawyerWangu has prepared an Affidavit of Confirmation of Marriage which you can complete and have commissioned by an Advocate.
The Directive by NHIF affected many issues some of which were unforeseen. It raised questions on how administrative bodies exercise their discretionary powers and how that affects how people enjoy their rights. Article 43 (1) of the constitution of Kenya provides that every person has the right to the highest attainable standard of health and while the standards of health in Kenya are not where they are supposed to be, the Government is working on ensuring that every person has access to health care through the Universal Health Coverage agenda. The directive by NHIF would have made it harder for persons to access healthcare defeating the goal for Universal Health Coverage and depriving persons of their right to healthcare.
NHIF has become incredibly affordable and offers a wide range of benefits including cancer treatment, reproductive healthcare, overseas treatment and access to over 5,000 healthcare facilities. It is a step forward in the right direction towards making the aspirations in Article 43(1) a reality however the misstep in the directive would have taken back the progress made.