The government has banned the adoption of Kenyan children by foreign nationals with immediate effect.
A special Cabinet meeting chaired by President Uhuru Kenyatta Thursday directed the Ministry of Labour and Social Protection to enact new policies to regulate the practice of adoption and streamline operations of the Child Welfare Society of Kenya (CWSK).
This is the second time in five years the Cabinet has issued a high-level directive against taking Kenyan children for adoption abroad, after imposing an indefinite moratorium in 2014.
At the time, the practice had attracted international attention with the United Nations and the American government flagging Kenya as a source and transit hub for child trafficking.
Fears were rife that some of the children were ending up in the hands of organ harvesting syndicates while others were sexually exploited, neglected or abandoned in family break-ups.
One family in Kakamega was found to have been made to sign a disclaimer by a foreign couple in 2015 that the aliens “would not be held responsible for death or injury of the child while in their custody”, according to an official report.
A government report indicates that one private adoption agency alone had processed 300 children for adoption abroad between 2005 and 2008, but the total number of children taken out over the years is not known.
Yesterday’s ban comes in the wake of a damning report by a special task force that indicated rampant violations of adoption laws by private adoption agencies, children officers, law firms and judicial officials.
A report by a special task force set up to review pre-moratorium adoption practice, laws and policies paints a picture of what appears to be a racket where players got a share of the proceeds from foreigners looking for Kenyan children.
The report and recommendations by the task force submitted to former Labour and Social Protection CS, Ms Phillis Kandie in late 2017, stated that a pursuit of profits was the main motive for a majority of players in the adoptive service.
The report said that more than 80 per cent of children in institutions had traceable families but owners had commercial motives for holding them there.
It recommended shutting down many institutions by reuniting the children with their families.
The report recommended public funding of local adoption services so as to remove the commercial motive by private agencies that had salary and operational overheads to pay.
The report said adoption agencies earn a raft of fees from foreigners ranging from Sh250,000 for application, Sh500,000 for guardian ad litem (friend of the child in court proceedings) and Sh5 million for the lawyer, who pays Sh200,000 to the adoption agency as kickback.
This is in addition to insurance cover for prospective parents, apartments for the three-month legal period, during which a foreigner should bond with a child in Kenya, car-hire services, among others. Since announcement of the moratorium, many adoptions have been challenged and overturned over irregularities and some children reunited with their birth families.
The task force recommended separate adoption laws, speedy review of the Children’s Act (2001) to comply with the 2010 constitution and new regulations to ensure only trained social workers and clinical psychologists were legally authorised to engage in adoption services.
Professional qualification was previously not a factor in registering children agencies.
The report noted this was unlike other countries, such as South Africa, where only graduates in social work and three years’ experience could hold key positions involving children.
It also recommended establishment of a statutory Social Workers Regulatory Authority to weed out quacks from the sector, vet practitioners and enforce ethics.
The adoption of children by wealthy couples from Western countries has seen a fierce battle field between State agencies, private adoption outfits and law firms in the courts since the moratorium was imposed in 2014.
The ban is expected to stop, and perhaps reverse, adoption cases that have been bypassing the moratorium through “special or exempt cases and circumstances” involving ailing children.
Most recently, an American couple, Daisy and her husband Matt, won a vicious adoption battle with the State over their procedure of adopting a Kenyan baby.
The baby was handed over to the couple on Wednesday after they were granted legal guardianship by the Nairobi’s Children Court in April 2017.
The matter came to the limelight after detectives from Directorate of Criminal Investigations stormed the residence of the couple and forcefully took the baby away.
The police said the baby was found abandoned as a newborn along with another baby, believed to be his twin.
In August 2015, the High Court stopped two Swedish couples and a Danish couple from taking three Kenyan children out of the country, after it was discovered that the minors were not abandoned orphans but had families.
The couples had been living with the children in Nairobi for months as families of the children searched for their missing minors, only to discover they had been declared abandoned orphans and offered for adoption to the foreigners by local adoption agencies.
Following a review of the adoption process by the Technical Assessment of the Legal Provisions and Practices of Guardianship, Foster Care and Adoption of children by the Government of Kenya and UN children agency Unicef, an adoption moratorium on foreigners was placed by the government in December 2014.
The review showed there were weaknesses in the legal process, which was subject to manipulation leading to commercialisation of adoptions.
Besides the moratorium, the government also revoked the licenses of adoption agencies. In 2015, the government appointed an expert committee to implement the objectives of the moratorium.
In 2017, the committee, in a report presented to President Kenyatta, recommended the freeze to be maintained and that all the Charitable Children’s Institutions (Homes) be closed down.
As a result, the government is not renewing the licenses for the children’s homes, nor licensing new ones.