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.