Legislation: Public refused access to NHI Bill legal opinion
Publish date: 30 August 2019
Issue Number: 4772
Diary: Legalbrief Today
An opinion document on the constitutionality of the National Health Insurance (NHI) Bill presented orally yesterday to members of the National Assembly’s Health Committee before a briefing from Health Minister Zweli Mkhize was withheld from journalists – despite reportedly having been made available for copying and public circulation well before the meeting, which began at 10:30. Prepared by the Office of the State Law Adviser and read verbatim to the committee by acting head Ayesha Johaar in the presence of media representatives and health sector stakeholders, the document was distributed to committee members only after lunch, by which time Johaar had left. Her presence at the meeting was apparently requested at surprisingly short notice. When the morning session ended and committee chair Sibongiseni Dhlomo was approached for permission to make copies available to members of the public, he declined – claiming not to have seen or read the document, notes Pam Saxby for Legalbrief Policy Watch.
Why Dhlomo adopted this stance is not clear. Underpinned by provisions in sections 27 and 146(2) of the Constitution, as well as sections 3 and 25 of the 2003 National Health Act, Johaar’s opinion is that the Bill is ‘constitutionally sound’. Section 27(1)(a) of the Constitution makes access to health care services a universal right. Section 146(2) spells out the conditions in which national legislation uniformly applicable ‘to the country as a whole’ prevails over provincial legislation. Section 3 of the Act deals with the responsibilities of the Minister, the national department, provincial departments and local authorities in providing healthcare services. Section 25 sets out the general functions of provincial departments in that context.
A committee media statement issued on Tuesday – refuting allegations that the Bill had been ‘suspended’ because of concerns about its constitutionality – also noted that, having met ‘one of the state law advisers’ to discuss the matter, Dhlomo was ‘comfortable’ with the advice he received. Johaar is the adviser to whom he was referring. However, widely publicised reservations by some stakeholders about government’s capacity to fund NHI, manage it financially and deliver quality services – not to mention speculation about the future role of medical schemes – may explain Dhlomo’s obvious distrust of media representatives. This is especially given the extent to which some journalists tend to sensationalise issues without scrutinising the documents on which they report. The indignant tone of DA Evelyn Wilson’s input during the meeting probably did little to smooth already ruffled feathers. She has much to learn from party colleagues Siviwe Gwarube and Haseena Ismail, whose equally candid approach was noticeably more deferential.
Against that backdrop, the Minister, his deputy Joe Phaahla, Health Department DG Precious Matsoso, deputy DG Anban Pillay, presidential adviser Olive Shisana, NHI office head Nicholas Crisp and other departmental officials fielded an avalanche of questions about the Bill and NHI in general from the DA, FF Plus MP Philippus van Staden and the EFF’s Naledi Chirwa – but did little to assuage their fears. Neither the model to be used in implementing NHI nor the mix of options available to fund it are cast in stone. However, conceding that government ‘will need to invest strongly’ in improving the standard of public healthcare services and facilities, Mkhize said that, where there is evidence of ‘neglect’ it ‘must be corrected’. ‘We are at such a low level of quality that we will have to fight hard to improve it,’ he told the committee, referring to NHI as a ‘vision’ and an opportunity to ‘up the game’. According to Pillay, the need for ‘robust’ monitoring and evaluation was simply confirmed by the pilot phase.
In the Deputy Minister’s view, while NHI promises to be a ‘disruptive intervention’ – especially for the 15% of citizens able to afford private healthcare – ‘fear of the unknown’ cannot be allowed to prevent government from moving forward with plans to honour not only its constitutional obligations but also binding international commitments. While Phaahla did not elaborate on the role of medical schemes under the NHI system and little was said on the issue, Pillay confirmed that it will be spelled out in regulations. References by Shisana to presidential health compact partnerships and by Crisp to the introduction of NHI as ‘a journey, not an event’ were vague – tending to point to a long road ahead, albeit with ample opportunities for public consultation. Funding proposals will be the focus of a separate draft money Bill.
Follow Pam Saxby on Twitter (@SaxbyPam)