By Apollo Mboya
Kenya: A child’s best interests are of paramount importance in every matter concerning the child. The same is provided in Article 53 of the Constitution of Kenya which among others grants every child the right to a name and nationality from birth; free and compulsory basic education; basic nutrition, shelter and health care; protection from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and more importantly to parental care and protection.
However, just about anything that could go wrong with a child adoption system has gone wrong with that of Kenya whose main impetus is “profit,” rather than best interests of the children.
There are several pertinent issues relating to and affecting the adoption process in Kenya which raises questions.
The Government is expected to ensure that in addition to the constitutional provision promoting the best interest of the child, the laws are required to be applied in a manner that discourage or stop discriminatory practices in the adoption process.
By a legal notice No. 206, the Cabinet Secretary for Labour, Social Security and Services purported to exercise powers conferred by section 198 of the Children Act, 2001 to exempt Child Welfare Society of Kenya, one of the five private adoption societies in Kenya from the provisions of section 177 of the Act from the date of commencement of the law in the year 2001.
This exemption is curious because section 198 of the Act which the Cabinet Secretary relied upon only allows exemption to the members of any race, tribe, religious group or sect in Kenya, or any part of such race, tribe, religious group or sect (not agency) whom the Cabinet Secretary may consider it impracticable or inexpedient to apply such provisions.
In addition, according to the Statutory Instrument Act, (No 23 of 2013) which provide for the making, scrutiny, publication and operation of statutory instruments, every Cabinet Secretary responsible for a regulation-making authority is required within seven sitting days after the publication of a statutory instrument, to ensure that a copy of the statutory instrument is transmitted to the responsible Clerk for tabling before Parliament.
This was not done.
The exemption means that the exempted agency is not required to abide by the statutory processes to be followed in the adoption processes including supervision by the Adoption Committee and the Director of Children Services.
The net effect is that, in complete display of discrimination of the other adoption societies, the Cabinet Secretary has permitted one private institution to undertake unsupervised child adoptions and is also hoarding children who need care and protection.
Already there is a lack of information on domestic adoptions and there is a problem with the fact that the courts are often not notified, which leads to illegal adoption practices.
In the case of international adoptions, potential adopters are issued with a six-month visa, when coming into the country to process and complete their adoption applications.
Due to the legal provisions relating to adoption including the need to spend the first three months of their stay fostering and bonding with the child, it is almost always impracticable to complete their adoption process within six months necessitating expensive extension of visa due to the fee and the long time it takes to complete the process.
Beyond this, what we have is the adoption system is an entrenched elitist, highly discriminatory and unrealistic agenda of some of the presumptuous individuals concerned or connected with the child adoptions in Kenya.
The Kenyan adoption system without question, favours the wealthy lot, both local and foreign individuals, even though we all know that wealth cannot necessarily be the accurate indicator or predictor of suitability as a parent.
Kenya needs a new system for access to information held in adoption agencies records, Adoption Committee and the Judiciary about adoptions, which take place in the country.
Kenya is party to the Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption and article 2(6) of the Constitution of Kenya provides that any treaty or convention ratified by Kenya shall form part of our laws.
Time is ripe for the adoption agencies make public their financial records, records of the children adopted from Kenya and those who them.
In addition, all private adoption agencies who have previously benefitted from Government financial support needs to know that taxpayers’ money need to be accounted for.
In case of foreigner adoptions, in addition to the requirements of the law, the court normally requires foreigners to present documents showing their economic, social and personal position, from the relevant authority of their country to ensure the well-being of the child.
The Cabinet Secretary for Labour, Social Security and Services, has broken the law for purporting to exercise power that does not exist and for failing to follow procedures of making a delegated legislation.
The writer is Secretary/CEO of the Law Society of Kenya