For years there has been hue and cry over children being stolen or going missing from hospitals, homes, schools, among other places and later being sold.
Some of these children have remained untraced to date while others are believed to have been abandoned and placed for adoption as their families could not be found. Accusing fingers pointed to the manner adoption of children has been carried out in the country for years.
Weak adoption laws could have also exposed hundreds of Kenyan children to abuse and exploitation both locally and internationally.
The US State Department ranks Kenya at Tier 2 Watch List for non-compliance with minimum standards for the elimination of human trafficking.
In an attempt to address the issue, the government issued a moratorium against all resident and inter-country adoptions (adoption of a Kenyan child by adopters who are non-Kenyans and those who live outside Kenya), and also cancelled licences for inter-country adoptions.
The objective of the ban was to enable the government to conduct a comprehensive audit of policy and legal framework, procedures and players involved in adoption.
In addition, it was to help scale up and ensure robust family tracing and reunification, enhance local alternative family care, and other child protection interventions.
Subsequently, an expert committee chaired by Ms Lydiah Muiru was appointed by the Labour Cabinet Secretary to implement the objectives of the moratorium with its secretariat being the Child Welfare Society of Kenya. Other members of the committee include Scholastica Omondi, Rose Wasike, Joseph Gitau, Callen Masaka and Anthony Gitai.
According to the committee records on statistics of children adopted in and from Kenya, over 496 children were taken out of the country between 2005 and 2014 under circumstances that raise constitutional, legal, policy and ethical questions under local and international legal instruments.
The report, presented to President Uhuru Kenyatta last December, has recommended among others that the Judiciary should play a key role in stopping further suffering made possible through orders issued in adoption cases filed in court.
The committee noted in the report that, “when adoption cases were presented to court and the court issued guardianship and custody orders that allowed the foreign guardian to travel with the child, the court did not give direction for production of the children in court after return back to the country. This is likely to rope in the Judiciary to the link to trafficking of children through guardianship.”
Most of the applicants seeking guardianship order could apply to travel to foreign countries with the children under the guise of “serious medical condition”, yet no medical documents were presented in court to support assertions that the children needed to go abroad.
“Instead, the court relied on the children officer’s report and affidavits by applicants, some of which lacked medical documentation,” reads the report, which added that there also seems to be intentions for foreign applicants to obtain a child permanently instead of following the proper adoption process.
Sampled cases also revealed that lost children are presumed to have been abandoned by their families and therefore available for adoption. This was revealed by inadequate investigations to trace their families from reliable records such as those maintained by hospitals and police.
Some documents presented in court also pointed to fabrication, forgery, deception and falsification. A birth certificate, for instance, indicated that the child was born in 2002 while the death certificate of the child’s father indicated that he died in 1995. In another, the name of the father in the death certificate was different from that in the child’s birth certificate.
“Surprisingly, these documents were recommended by the Department of Children Services and the court granted guardianship orders. This raises concern about accountability and the casual approach to the children’s well-being and safety,” said the report.
The committee has, in its second phase of the progress report, found that there exists major gaps in the legal framework, adoption process and that there is evidence linking adoption to child trafficking.
Further, 93 per cent of children in charitable children institutions (CCIs) have been recruited and have families and only seven per cent are in need of temporary care and protection. They said given resources, it is possible to reunify 80 per cent of all children in CCIs within three years.
The committee established that Kenya has enough parents available locally to adopt children. For every one child available for adoption, there are six Kenyan parents waiting to adopt him/her. The country only meets 15 per cent of children requests by local adoptive parents.
“There is, therefore, no justification for inter-country adoption in Kenya since there are adequate local solutions for Kenyan children,” reads the report.
Some Kenyan parents who have been approved for adoption wait for more than four years before they can get a child. Eighty-six per cent of these parents require children above one year, which has contradicted popular myth that parents do not desire such an age group.
The committee also noted the irony of the sins of the alleged ‘saviours’ in adoption. They are handled by charities in adoption societies in what a Unicef report describes as organised crime against children.
In Kenya, illegal adoption agencies have used technocrats, political offices and even tried to use diplomatic offices to advance their “saviours to Kenyan child initiative”, while in actual sense they are benefiting from the exorbitant fees paid to them.
“They sell a picture of a needy child requiring a loving family. This story is told to people and officers outside the adoption profession to invoke emotion, sympathy and pity of such a needy child in a manner irresistible to those hearing to unknowingly deny them support,” the report states and further describes them as daring, ruthless, unmoved and heartless.
The report also established that leaving infants to private entities has proved to be a disaster as they are “merciless and act as mercenaries organised against the children and their families”.
There is verifiable evidence of serious child trade, child abuse and a cartel that clearly exploits children for commercial purposes.
“In addition, we established that children homes are used to hold and hoard children for these purposes and children who do not require to be in the children’s home at all are held hostage and not released to their families or for local solutions such as foster care, guardianship and local adoption,” says report.
This is because the adoption societies have preselected and reserved these children for inter-country adoption clients.
Professionalism is also not followed in adoption processes in that whereas adoption is a very serious matter of permanent nature dealing with children’s lives, it is casually handled by people with no social work professional qualifications.
The committee recommends that adoption be done by professional social workers. In addition, CCIs be closed down immediately and children reunited with their families. The other recommendation is that the moratorium be upheld because it is the only lifeline for children, and has so far reduced the sale and theft of children in the country.
“There was no evidence that the children were beneficiaries of inter-country adoption. The committee established that many inter-country agencies had even written letters to Kenyan adoption societies indicating they needed healthy children,” adds report.
Nevertheless, the moratorium does not affect Kenyans living abroad as well as Kenyans married to non-Kenyans who may wish to adopt children. The committee has explained in the report that this is because they are either still Kenyans or if they had acquired the citizenship of another country, still enjoy dual citizenship which is supported by the Constitution.
Kenyans living abroad will adopt as Kenyans by way of domestic adoption and will only require a Home Study report from their country of residence.
“Laws should be enacted as a matter of urgency to save the lives of Kenyan children; these include the Adoption Policy, Social Workers Bill, and an Adoption Bill that clarifies the adoption process,” says the committee.
Private institutions should also be ordered to open up their homes for immediate assessment so that those children with families are reunified and those found adoptable are given to local parents. Licences for inter-country adoption to remain cancelled, the committee recommends.
“Inter-country adoption puts pressure on adoption personnel to provide children making them to go scouting for children,” reads the report.
Other recommendations are that no special consideration should be given to “children of special needs category” because this is another way of propaganda for branding and labelling children for trafficking. There is equally need for vetting of private practitioners dealing with children because they have strategically branded themselves as ‘saviours’.
A sample of the court cases attest to the need to have adoption declared a national disaster, as more and more people are taking advantage of vulnerable children. In one court case, a seven-day-old child was snatched from her mother. In another, a child was stolen from the uncle and branded abandoned. Another child was born prematurely and the mother died, this child was taken away from the grandmother. The affected parties are still fighting for custody of the children in court.
There are 18 other court cases where children are living with foreign guardians in unclear circumstances. The malpractices have been found to be perpetuated by the same group of CCIs, lawyers, social workers and adoption societies.
Kenya has in recent years featured prominently as both a source and key destination and transit location for international child and human trafficking crimes.
According to the Global Report on Trafficking in Persons 2014, by the UN Office on Drugs and Crime, Kenya is cited as one of the countries that are in denial and neglect when it comes to reporting or prosecuting cases of human trafficking and as a source, transit and destination country in the vice.
A global alarm issued in June, 2014 by the Expert Group of the Hague Convention on inter-country Adoptions called upon state parties to take action against profit driven inter-country adoptions and child trafficking.