The state attorney’s office has assured parliament that the government’s first piece of draft legislation for implementing universal health coverage is constitutionally sound.
The National Health Insurance Bill has elicited fierce debate since it was tabled in parliament on August 8, as it proposes sweeping reforms to the health system including a diminished role for provincial health departments. The constitution gives national and provincial government concurrent, or shared powers for health.
DA leader Mmusi Maimane wrote to parliamentary speaker Thandi Modise shortly after the bill’s release, asking her to seek legal advice on the constitutionality of the bill. At the time, he said it appeared the bill was overly intrusive on the constitutionally enshrined rights of provincial legislatures to enact laws relating to health care.
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Acting chief state law adviser Ayesha Johaar told parliament’s portfolio committee on health on Thursday that the bill had been certified as being constitutionally sound on July 29.
Its provisions were in line with section 27 of the constitution, which obliges the state to progressively realise the right to access health services. The bill was rational, and in line with SA’s international commitments, Johaar said.
On the issue of the provinces, she said it was the National Health Act that determined the roles, responsibilities and functions of the spheres of government with regards to health, and not the constitution itself.
“We interpret this to mean provinces may enact provincial laws to deal with health services authorised and contemplated by the national framework and to give effect to national policy. Any amendment to these provisions does not in and of itself offend the constitution.”
The DA’s shadow health minister, Siviwe Gwarube, a member of the committee, said she did not accept Johaar’s position on the bill. “A legal opinion is just that — an opinion,” she said.
Health minister Zweli Mkhize and his officials briefed MPs on the bill’s provisions, which include establishing a central National Health Insurance (NHI) fund to purchase services on behalf of the entire population that will be free at the point of care.
In response to questions from MPs about the financial implications of the NHI, he said there had been close consultation with the Treasury about its costs.
He assured MPs that the bill’s provisions on the sources of income for the fund, which include redirecting funds allocated to the provincial health departments, scrapping medical scheme tax credits, instituting a payroll tax, and a surcharge on income did not step on the toes of the finance minister. Measures such as these would be formalised in a Money Bill that would be tabled by the finance minister, he said.
“We have not transgressed and it is not wrong to have it [in the bill],” he said.
Health department technical adviser on NHI Aquina Thulare said the fund expected to spend no more than 3% of its budget on administration.
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