By JUDY OGUTU and CYRUS OMBATI

The High Court has given Medical Services Minister Anyang’ Nyong’o a window to reinstate suspended National Hospital Insurance Fund chief executive officer Richard Kerich.

This follows the suspension of the caretaker board by Justice Weldon Korir who ruled yesterday that President Kibaki broke the law when he ratified the interim board despite consulting Prime Minister Raila Odinga.

Justice Korir upheld a request by the Kenya Medical Association (KMA) seeking temporary orders suspending the caretaker board, pending the hearing of their suit.

KMA had accused President Kibaki of failing to follow the requirements of Section 4 of the NHIF Act that requires him to appoint the association’s chairman to the board.

It said this was discriminative as it also denied KMA members the opportunity to participate in determining the future of national health care.

Also supposed to be represented in the board, according to the KMA in its suit papers are the Treasury Permanent Secretary, and a nominee from the Kenya National Farmers Union, which was not done.

“The court cannot allow an illegality if such an illegality has been brought to its attention. In the case before me, the applicant argues that the President ought to have composed the new board in accordance with Section 4(1) of the NHIF Act,” the judge said.

But a defiant acting Chief Executive Officer Adan A Adan said the caretaker board would appeal the ruling and remain in office until the investigation into the alleged mega-scandal involving the medical scheme for civil servants is concluded.

“We have a seven-day window to appeal, and we have instructed our lawyer to do that, but as in the meantime work will have to continue,” said Adan. 

The judge’s ruling appeared to have pave the way for Medical Services Minister Prof Anyang Nyong’o to reinstate suspended CEO Richard Kerich who was cleared of any wrong doing by Parliament.

In making his ruling, Korir stated: “There is an apparent non-compliance with the provision of the law. In the circumstances, I agree with the applicants that the said decision should be suspended pending hearing and determination of the substantive notice of motion.”

The High Court order came after the Director of Public Prosecutions (DPP) Keriako Tobiko rejected a request to reinstate Kerich.

Tobiko said there is an ongoing investigation by the Ethics and Anti-Corruption Commission (EACC) and police into the allegations of fraud and irregularities in the fund with regard to the Civil Service Medical Scheme.

“It would therefore at this stage be both speculative and premature on my part to give directives you have requested,” said Tobiko in a letter to Nyong’o.

On Wednesday, it emerged that Nyong’o had recalled the suspended Kerich, saying he had been cleared of any wrongdoing and should therefore be allowed back into office.

He went further and recalled Adan, who is also an Undersecretary in his ministry, but who had been seconded to the NHIF caretaker board, back to his job.

CARETAKER BOARD

But Adan appears to be staying put following a letter written by the NHIF caretaker committee chairman Mutuma Mugambi objecting to Nyongo’s order that he vacates the CEO’s office for Kerich.

KMA in its suit argued that as much as the President has powers to constitute the NHIF board, he should do so in accordance with the relevant laws.

The association said the manner President Kibaki exercised his powers in appointing the caretaker board broke the law.

Two months ago, the PM Raila Odinga announced that President Kibaki, following the alleged Sh4.3 billion scandal in the medical scheme for civil servants, had approved names of the caretaker board.

On May 7, the PM issued a statement suspending the NHIF board followed by President Kibaki’s endorsement of the caretaker board two days later.

In his letter copied to EACC acting CEO Jane Muthaura, Police Commissioner Mathew Iteere, Medical Services PS, Mary Ngari, and the PS in the Prime Minister’s Office Mohamed Isahakia, Tobiko said the caretaker committee should remain in office until investigations are concluded.

On Monday, Prof Nyong’o in a letter to Tobiko said Kerich should return to work as Parliament had dismissed a report on which his suspension, and that of the entire board, was based.

Tobiko also directed the police and EACC to investigate a complaint by Nyong’o that 77 medical providers appointed by the caretaker team were not formally registered.

Non-registered hospitals

Reacting to allegations that it had credited hospitals not registered with the Medical Practitioners and Dentists Board, the caretaker board at NHIF maintained that the centres in question were registered and known to Kenyans.

Adan refused to leave the office even after Nyong’o confirmed he had recalled him to perform his previous duties.

On Wednesday, while opening a stakeholders’ workshop on universal health insurance cover in a Nairobi hotel, Nyong’o said his reinstatement of the former NHIF CEO was in line with the NHIF Act.

“The way forward is that we must follow the NHIF Act and of course as the minister I must help guide the way forward. I don’t think there is a problem,” he said, declining to give details.

The caretaker committee’s mandate is supposed to end next month.