Amending the NHI – a complex process beyond government’s narrative

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Julia Penn | Director | Fairbridges Wertheim Becker | mail me |


The recent statements by ANC parliamentary chief whip Pemmy Majodina regarding the National Health Insurance (NHI) bill’s ‘amendability’ have highlighted a significant misunderstanding of the law making process.

Majodina’s assurance that the bill can be amended if necessary, simplifies a complex legislative and judicial process.

Once the president signs a bill, it becomes law. For the NHI bill, this marks the beginning of its legal journey, not the end. The bill’s critics, including political parties, commercial organisations such as Business Unity South Africa (BUSA), and various healthcare professionals, argue that it is unconstitutional and impractical.

Challenges to constitutionality

As soon as a bill is assented to by the president, it becomes legislation. Challenges to its constitutionality must be brought in the High Court.

If the High Court finds the legislation unconstitutional, the decision must be confirmed by the Constitutional Court to become binding. This judicial process can take months or even years, especially if the government opposes the challenge.

An urgent application cannot halt the law-making process once the President has assented to the bill. The only way to challenge the legislation is through a constitutional application questioning its validity and the rationality of the president’s decision under the Principle of Legality.

The passage of a bill into law is lengthy, involving multiple stages such as public comment, parliamentary debates, and various readings. The NHI Act took over five years to become law. Court challenges can only halt its implementation once it becomes law.

Procedures & regulations

Even without legal hurdles, the act will require months or even years to come into practical effect due to the necessary procedures and regulations. Majodina’s assertion that the NHI bill can be amended as needed is an oversimplification.

Here’s a breakdown of the actual process:

  • Amending the act

Acts cannot be adapted on the fly. Amendments require a formal process where either the court declares specific sections unconstitutional, prompting parliament to amend those provisions, or parliament proactively amends the act. For the latter, at least one-third of the National Assembly must support an application to the Constitutional Court within 30 days of the president signing the act.

  • Regulatory changes

While acts are rigid, the regulations under them are more flexible. The government can continually change and promulgate new regulations under the NHI Act, potentially addressing issues as they arise. This regulatory flexibility might be what Majodina refers to, though it does not equate to amending the act itself.

Criticism

The NHI bill has faced substantial criticism beyond its constitutionality. These include governance issues, exclusion of vulnerable populations, lack of transparency, and inadequate transitional provisions.

Critics highlight the NHI Fund’s vulnerability to corruption and political interference. The governance arrangements leave much to be desired in terms of transparency and accountability, potentially leading to mismanagement.

The bill excludes asylum seekers and undocumented individuals from accessing services, raising human rights concerns. There is a notable exclusion of civil society and health service users from influential committees, undermining the participatory ethos of the NHI.

UCT law lecturer Ben Cronin has described the legislation as fundamentally flawed due to its reliance on future parliamentary appropriations for the NHI Fund’s revenue. This uncertainty could render the NHI ineffective, akin to “a car without an engine.” The bill establishes new structures without prior testing, likely resulting in role duplication and increased costs.

In conclusion

The transitional provisions are weak, further complicating implementation. While government’s narrative reassures that the NHI bill can be amended as needed, the reality is far more complex.

The legislative and judicial processes involved in amending the act are time-consuming and procedurally rigorous. Moreover, the bill’s critics raise valid concerns about its governance, financial viability, and inclusivity, all of which need to be addressed to ensure the NHI’s success.

The road ahead for the NHI bill is fraught with challenges, and the discourse around it must reflect the intricacies of legislative processes and the substantive criticisms it faces.


 



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