By Lehlohonolo Lehana.
Business groups in South Africa are pushing president Cyril Ramaphosa to delay signing the National Health Insurance (NHI) Bill into law, saying that it does not pass constitutional muster and will likely lead to many legal and social troubles down the line.
“Given its numerous substantive and procedural constitutional flaws, the business groups believe the President should refer the Bill back to Parliament for reconsideration and amendment prior to him signing it into law, “the entities assert in a statement.
“Following the adoption of the Bill by Parliament in November, Busa submitted a detailed formal petition to Ramaphosa to send the Bill back to the National Assembly on the grounds of unconstitutionality. We hope the President considers the long-term impact and risks of assenting to a Bill that so clearly flouts the Constitution,” says Busa CEO Cas Coovadia.
Busa and B4SA say they have consistently supported the policy direction towards universal health coverage, but note their reservations about the NHI Bill’s design and implementation.
There have been suggestions that Ramaphosa has only signed certain provisions of the Bill into law; however, Busa says it believes this will not provide the necessary clarity and certainty.
“This will hamper collaboration, impede initiatives which can put the country on a pathway to universal health coverage, as well as undermine critical investment in the healthcare sector and the economy more broadly,” the organisation avers.
“What the country needs is an NHI underpinned by the Constitution, and which is affordable and implementable. This Bill does not meet these criteria and is not ready to be signed into law,” Coovadia asserts.
According to the business organisations, the Bill in its current iteration will “materially delay access to universal health coverage, lead to disinvestment in the healthcare sector, further damage South Africa’s already fragile economy and create significant risks for the country in terms of the availability, quality, management and governance of healthcare”.
“We recognise that the country is in pre-election mode and that the adoption of the NHI Bill is a cornerstone of the government’s policy platform and its election campaign.
“However, the weaknesses and the material negative implications of the NHI Bill, in its current form, will have devastating consequences for the country and her people for generations to come. There is a significant obligation on the President to ensure the Bill passes Constitutional muster,” points out B4SA steering committee chairperson Martin Kingston.
A summary of the key procedural and substantive constitutional issues raised by Busa in its petition to Ramaphosa include that, procedurally, Parliament’s socioeconomic-impact assessment process was inadequate, that the National Economic Development and Labour Council process in respect of the Bill was not followed through, that public participation inputs were not properly considered and that multiple constructive inputs from business and other stakeholders were ignored.
Parliament’s Portfolio Committee on Health also ignored an opinion by Parliamentary Legal Services, which highlighted several areas of the Bill that are unconstitutional, Busa outlines.
The organisation notes that the process conducted by the National Council of Provinces Select Committee on Health and Social Services was “rushed, inadequate in terms of its mandate and failed to properly deal with reports submitted by the provinces”.
It emphasises that the committee failed to incorporate amendments, provincial public submissions and technical flaws noted by several provinces and even the national Department of Health.
Busa avers that Section 33 is unconstitutional in giving the Health Minister “unfettered power to determine the restricted role for medical schemes, especially as this power is unnecessary for achieving the policy objectives of the Bill”.