Ombudsman Orders Release of NHIF, SHA Hospital Payment Records Within 21 Days

The Commission on Administrative Justice (CAJ), Kenya's Ombudsman, has issued a directive compelling the Social Health Authority (SHA) to release comprehensive records of payments made to hospitals under both the defunct National Hospital Insurance Fund (NHIF) and the newly established SHA within 21 days. This order stems from the constitutional right to access information, enshrined in Article 35 of the Constitution of Kenya, 2010, and operationalised by the Access to Information Act, 2016. The directive comes amidst significant public concern and mounting pressure from healthcare providers regarding substantial unpaid claims inherited by SHA from NHIF, highlighting issues of transparency and accountability in the country's healthcare financing system. The move underscores the Ombudsman's role in enforcing administrative justice and promoting good governance.

In a significant development for transparency and accountability in Kenya's healthcare sector, the Commission on Administrative Justice (CAJ), commonly known as the Ombudsman, has ordered the Social Health Authority (SHA) to disclose detailed records of payments made to hospitals under both the former National Hospital Insurance Fund (NHIF) and the current SHA. This directive, which mandates the release of these crucial financial records within 21 days, is a direct assertion of the constitutional right of access to information, a cornerstone of Kenya's governance framework.

The order is particularly pertinent given the ongoing transition from NHIF to SHA and the considerable public interest surrounding the management of public funds in healthcare. Healthcare providers have voiced growing frustration over billions of shillings in inherited arrears, raising questions about the financial health and operational efficiency of the new authority. The Ombudsman's intervention signals a firm commitment to upholding citizens' rights and ensuring public bodies operate with openness and integrity, especially concerning critical public services like health insurance.

The right to access information in Kenya is a fundamental constitutional right, explicitly guaranteed under Article 35 of the Constitution of Kenya, 2010. This provision stipulates that every citizen has the right of access to information held by the State and information held by another person required for the exercise or protection of any right or fundamental freedom. To give effect to this constitutional right, Parliament enacted the Access to Information Act, No. 31 of 2016. This Act provides a framework for the proactive publication of information by public bodies and outlines the procedures for citizens to request and obtain information, placing an obligation on public entities to disclose information unless specifically exempted.

The National Hospital Insurance Fund (NHIF), established under the National Hospital Insurance Fund Act, Cap 255, was the primary national health insurer in Kenya, mandating contributions from both employers and employees to cover various healthcare services. However, a significant shift in Kenya's healthcare financing landscape occurred with the enactment of the Social Health Insurance Act, No. 16 of 2023 (SHIA). The SHIA repealed the NHIF Act, 1998, and established the Social Health Authority (SHA) to manage three new funds: the Primary Healthcare Fund, the Social Health Insurance Fund (SHIF), and the Emergency, Chronic, and Critical Illness Fund. This transition, which officially commenced on October 1, 2024, aimed to achieve Universal Health Coverage (UHC) by expanding health insurance coverage to all Kenyans. The SHA inherited all funds, assets, and liabilities of the defunct NHIF Board.

The Ombudsman's order to release payment records is a direct application of the principles enshrined in Article 35 of the Constitution and the Access to Information Act, 2016. The CAJ, mandated with oversight and enforcement functions under the Act, plays a crucial role in ensuring public bodies adhere to transparency obligations. The directive follows a period of intense scrutiny and public outcry, particularly from private healthcare providers, regarding substantial unpaid claims amounting to approximately Sh30 billion, inherited by SHA from NHIF.

Kenyan courts have consistently upheld the right to access information, emphasizing that public institutions hold information in trust for citizens. In *Katiba Institute v Presidents Delivery Unit & 3 others* [2017] eKLR, the High Court affirmed that state officers are under a constitutional and legal obligation to allow citizens access to information held by the State. Similarly, in *Khalifa and Another v Secretary, National Treasury and Planning and 4 Others*, the court reinforced that the right to access information held by the State is constitutionally guaranteed and can only be limited under strict conditions outlined in Article 24 of the Constitution. These rulings underscore that public bodies cannot hide behind non-disclosure clauses or other pretexts to deny access to information that is in the public interest.

The transition from NHIF to SHA has not been without its challenges. The High Court, in *Aura v Cabinet Secretary, Ministry of Health and 11 Others* [2024] eKLR, declared certain sections of the Social Health Insurance Act, 2023, unconstitutional, partly due to insufficient public participation in its enactment. This highlights the importance of adherence to constitutional principles, including public participation and transparency, in legislative processes and the subsequent implementation of new frameworks. The current order by the CAJ seeks to address the lack of transparency surrounding the financial operations and inherited liabilities during this critical transition period.

The requirement for SHA to provide a detailed breakdown of unpaid claims and reasons for delays, as previously demanded by the CAJ in response to threats by the Rural and Urban Private Hospitals Authority (RUPHA) to suspend services, demonstrates the Ombudsman's proactive approach to resolving systemic issues. The government has recently released KSh4 billion to settle verified outstanding NHIF claims of KSh10 million and below, but the demand for full disclosure of all payment records indicates a broader need for accountability. The CAJ's order for an independent audit of SHA's financial operations further emphasizes the gravity of the situation and the need for a comprehensive review of the authority's financial management.

The Ombudsman's directive for the release of NHIF and SHA hospital payment records within 21 days marks a critical juncture in Kenya's efforts to foster transparency and accountability in public healthcare financing. For legal practitioners, this case reinforces the robust nature of the right to access information under Article 35 of the Constitution and the enforcement powers of the Commission on Administrative Justice. It serves as a potent reminder that public bodies, even during periods of transition, are not immune from scrutiny and must adhere to their constitutional and statutory obligations regarding information disclosure.

Practitioners should advise clients, particularly healthcare providers and civil society organizations, on leveraging the Access to Information Act, 2016, to demand accountability from public entities. The outcome of this order will set a precedent for how the SHA manages its inherited liabilities and new responsibilities, and it will be crucial to observe whether the authority complies fully and transparently. Continued vigilance and proactive engagement by legal professionals and the public will be essential to ensure that the principles of good governance and the right to health are upheld in Kenya's evolving healthcare landscape.