, NAIROBI, Kenya, Jul 23 – Attorney General Githu Muigai on Monday appealed against a High Court decision that suspended the National Hospital Insurance Fund caretaker committee.
The suspension was issued last week pending the determination of a case in which the Kenya Medical Association (KMA) has challenged the appointment of the interim board.
The AG said the order should be vacated since it was made without full consideration of the law.
“In fact in one sense, the orders were directed at the presidency and under our Constitution – the new one and the old one – the President of the Republic of Kenya cannot be made the subject of any civil or criminal litigation,” the AG argued.
On Thursday, Judge Weldon Korir in his decision said the president had failed to comply with the NHIF Act in appointing the caretaker committee in May.
According to the Constitution, civil proceedings shall not be instituted in any court against the president or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers.
The AG added that the judge erred by failing to appreciate that the interim committee was created specifically to allow for investigations into alleged irregularities over the Sh4.3 billion civil servants scheme.
“The president acted within his constitutional authority in appointing the caretaker board,” the AG said adding: “Our courts should be able to appreciate the impact of decisions that are made and I say no more because we will be in court on Friday.”
KMA had argued in court that although the president had powers under the State Corporation Act to appoint a member to the board of a State corporation, that power must be exercised in accordance with the statute creating the particular parastatal.
The president gazetted a new caretaker board for the fund on May 9 this year following the suspension of the entire board and Chief Executive Officer Richard Kerich over the multi-billion shilling scandal involving the civil servants health scheme.
The full hearing of the case filed by KMA will be this Friday.