Business organisations call on Ramaphosa to return NHI Bill to Parliament

4 Feb 2024

To ensure the NHI Bill passes constitutional muster, President Cyril Ramaphosa should return it to Parliament to fix ‘substantive and procedural constitutional flaws’, business organisations Busa and B4SA said on Sunday.

‘We hope that the President considers the long-term impact and risks of assenting to a Bill that so clearly flouts the Constitution,” Business Unity South Africa (Busa) CEO Cas Coovadia said on Sunday, adding that the organisation had submitted a detailed formal petition to President Cyril Ramaphosa in late November.

“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.”

The National Health Insurance Bill has been in Ramaphosa’s in-tray since it was passed on 6 December in the National Council of Provinces. The vote was delayed for a week following Busa and Business for South Africa’s (B4SA’s) approach to the Presidency.

After that vote, the DA also said it would ask Ramaphosa not to sign the Bill into law and was briefing lawyers on potential legal challenges in the Constitutional Court.

Read more in Daily Maverick: NCOP passes NHI Bill in face of widespread condemnation by health professionals, business and opposition

The Constitution, in section 84(2), allows the President to return legislation to Parliament if there are concerns about constitutionality or procedural issues. The President can also submit the legislation to the Constitutional Court for a decision on whether the legislation is compatible with the Constitution.

While no one opposes equal access to quality universal healthcare — only 16% of South Africans can afford private medical insurance — the NHI Bill has been sharply criticised by doctors, health facility providers and health insurance companies.

Such critique includes dilapidated public clinics and hospitals that do not meet basic cleanliness and other standards, centralising the procurement of medicine, health products and equipment through a government-administered fund — the potential for corruption has been flagged — limiting patients’ choice by prescribing the healthcare access route and, ultimately, ending the role of medical aid schemes once the minister decides the NHI has been fully implemented.

The government has stood firm in its support for the Bill, as indicated by Health Minister Joe Phaahla immediately after the NCOP vote in December. Getting the Bill passed was one of Phaahla’s assessment indicators in his performance agreement with Ramaphosa.

After the roughly 16 years it took the governing ANC to get to this point, the NHI Bill is strongly supported by its alliance partners, the SA Communist Party and the labour federation Cosatu.

Election year

With a crucial general election coming up this year, the NHI legislation is set to feature strongly; at the ANC’s 8 January Statement Ramaphosa as party president went off script to underscore the NHI Bill would be implemented, “whether they like it or not”.

According to Bloomberg, the Bill could be signed into law before the elections — which are widely expected to be held in May. The international news service quoted Minister in the Presidency Khumbudzo Ntshavheni as saying, “We think it’s a priority that it must be signed during this period so that the full implementation can take place.”

B4SA and Busa are not unaware of such electioneering dynamics, but their call is to ensure a constitutionally compliant law is put on the statute books.

As B4SA steering committee chairperson Martin Kingston put it, “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.

‘Devastating consequences’

“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.”

The Bill has been steeped in speculation, most recently that the President may sign only some sections of it into law. Busa and B4SA are opposed to piecemeal implementation, which would not provide clarity and certainty, would “hamper collaboration”, undermine healthcare sector investment and “impede initiatives” towards universal health coverage, according to Sunday’s joint statement.

Aside from procedural concerns, including the lack of a socioeconomic impact assessment of the Bill and inadequate consideration of public participation, Busa and B4SA in Sunday’s statement also raised questions over the constitutionality of accessing healthcare — that path is prescribed, effectively taking away patient choice — and of appealing against medical treatment decisions.

In addition, the lack of milestones for the implementation of the NHI was raised, and the funding of the NHI, for which the National Treasury, not the Department of Health, could be responsible for raising taxes and levies.

“Busa and B4SA are confident that in a constitutional democracy, these views will be taken into account by the President when he assesses the constitutionality of the Bill prior to his assent,” Kingston said. DM

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Business Maverick

Election year

‘Devastating consequences’