Two days of consultation

In 2023, Kenya’s parliament gave the public two working days to comment on the law creating its new national health insurer. A court later ruled that consultation process unconstitutional. The insurer launched anyway in October 2024 — and in Makueni County, enrolment in the scheme it created has struggled to clear a third of the population ever since, even though almost everyone there has heard of it.

That sequence — a thin consultation, a legal finding against it, and a stalled rollout years later — comes from a study published in September 2026, Enrolment as Calculated Risk (Amukuzi, Mulwo & Obuya, Journal of African Interdisciplinary Studies), built on 16 interviews and five focus groups in Makueni County. Most readings of this paper focus on what it found about communication: that near-universal awareness of Kenya’s Social Health Authority (SHA) coexists with only 34% enrolment, so more radio adverts and registration drives won’t fix it. That’s a real finding. But the paper also reports something that happened before a single person was ever asked to register, and it’s the more useful one for anyone designing a public purchaser.

The court case nobody cites when discussing enrolment numbers

The paper reports that Kenya’s High Court, in Aura v Cabinet Secretary, Ministry of Health and 11 Others [2024] KEHC 8255 (KLR), found the public consultation process for the Social Health Insurance Fund Bill “constitutionally deficient”: communities were given as little as two working days to comment on legislation that would fundamentally restructure how they pay for healthcare. Judicial review — a court examining whether a government process followed the law, here the required steps for public participation — found it hadn’t.

Compare that to what the same county had already built once before. By 2018, Makueni had reached 91% household coverage under its own scheme, MakueniCare — not through a national rollout, but through what the paper calls “genuine community participation” over years, with flat, predictable premiums and free care for the elderly. When SHA replaced it, the paper’s framing is precise: SHA “inherited communities’ hopes but not their proven track record.” Trust, the authors argue (drawing on health-systems researcher Lucy Gilson’s work), builds slowly through accumulated reliable experience and can be dismantled quickly when an institution doesn’t deliver on what it promises. A national scheme substituting for a trusted local one needs to earn that trust again from close to zero — and a two-day comment window doesn’t do any of that earning.

Communication can’t retrofit a legitimacy problem

This is why the awareness numbers mislead. SHA’s own communication reached people fine — that’s exactly what “near-universal awareness, 34% enrolment” means. The problem SHA faces isn’t that people don’t know about it; it’s that the process that created it never built the standing to be trusted with their money in the first place, and no amount of broadcasting after the fact substitutes for the participation that was skipped before launch. The paper’s other findings — an annual back-payment obligation many only discover at the hospital bed, inpatient-only cover that leaves everyday care unfunded — read less like separate design flaws and more like symptoms of the same root cause: a scheme built without the kind of sustained public engagement that would have surfaced those problems before people had to discover them the hard way.

If you are designing this

Three things worth taking from a court ruling most purchasing literature never mentions:

1. Put consultation on the project timeline with its own budget, not as a legal box to clear quickly. A benefits package gets months of actuarial work; the process of earning public legitimacy for the scheme that delivers it deserves the same seriousness, not a fortnight.
2. Measure and publish how long genuine engagement took, the way you would publish a benefits package. Legitimacy is usually invisible until it’s missing. Making the consultation record public, and auditable, is what lets a court — or a researcher, or the public — tell genuine engagement from its appearance.
3. Before replacing a scheme that already works locally, ask what specifically earned its trust. MakueniCare’s answer was participatory design and predictable delivery, not its benefit list. A national replacement that copies the second without the first will show up, as it did here, as an enrolment number that communication campaigns can’t move.

Enrolment numbers get read as a marketing problem because they arrive late and look like one. This paper’s contribution is tracing one all the way back to a two-day comment window — and a court case that said, on the record, that wasn’t enough.

Strategic Purchasing for UHC: The Open Questions, the monthly research webinar series I convene at Wits, takes up questions exactly like this one. The next session — Exploring African UHC and Strategic Purchasing Efforts — runs Wednesday 4 November 2026, 14:00–15:30 SAST. Register here.

Further reading

• Amukuzi MK, Mulwo AK, Obuya J, Enrolment as Calculated Risk: Community Knowledge of Universal Health Coverage and the Limits of the Deficit Communication Model in Makueni County, Kenya — Journal of African Interdisciplinary Studies, 2026;10(9):17-30
• Aura v Cabinet Secretary, Ministry of Health and 11 Others [2024] KEHC 8255 (KLR) — Kenyan High Court (as reported in the Amukuzi et al. paper above)
• SP4UHC literature bibliography and research resources — profmoosa.com/sp4uhc-research

Prof Shabir Moosa is a family physician and health-systems strategist, Associate Professor in Family Medicine & Primary Care at the University of the Witwatersrand, lead author of a Lancet Global Health paper on PHC financing, and convenor of SP4UHC: Strategic Purchasing for UHC.