NHI bill is ‘constitutionally sound’, state law adviser tells parliament

The state’s top legal minds have given the proposed National Health Insurance bill their stamp of approval in terms of its constitutionality.

Acting chief state law adviser Ayesha Jahoor told MPs on Thursday that the bill complied with Section 27 of the constitution, which provides for everyone a right to have access to health care services, saying that the state should take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.

Jahoor said the bill, which her office certified as “constitutionally sound”, should be regarded as a measure to give effect to this right enshrined in the constitution. It also complies with SA’s international obligations.

“Parliament, in passing the proposed legislation, would not be acting capriciously or arbitrarily or in violation of rule of law, or in violation of any provision of the constitution, should it enact this bill,” said Jahoor.

She was appearing, alongside health minister Zweli Mkhize, before the National Assembly’s portfolio committee on health.

Mkhize was presenting the bill to MPs for the first time since it was tabled in parliament during the parliamentary recess three weeks ago.

The bill seeks to provide equal primary health care for all South Africans regardless of their employment and financial status – but it has drawn criticism from opposition parties and from some experts in the health sector who argue that South Africans should not be compelled to join the proposed scheme whether they wished to or not.

Its roll-out was expected to cost around R250bn a year.

The DA has already threatened to go to the Constitutional Court to stop the implementation of the bill should it become law.

DA leader Mmusi Maimane and the party’s spokesperson on health, Siviwe Gwarube, told journalists two weeks ago that the bill was not consistent with schedule 4 of the constitution in that it usurped the powers of provinces in the administration of public health care.

“If it doesn’t pass constitutional muster, I’m willing to go to whatever court there is in the land to fight this matter. Don’t undermine the powers of provinces, it’s expressed in the constitution. We cannot be passing laws that will not pass constitutional muster,” said Maimane at the time.

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