Securing a brighter future for Kenya's vulnerable children

Toto’s cry was loud and unrelenting. Listening to his howls across the room, it was hard to imagine that he was only a few days old. His tiny eyes were brimming with tears as his little fists opened and closed involuntarily.

Other infants in Mama Lucy Hospital where Toto had been born, were also releasing incessant infant cries into the warm atmosphere. But for them, their mothers’ bosoms were there to comfort and shush them. No sooner had they started crying than their mothers gently shoved teats into their expectants mouths. The effect was magical as infants cries instantly transitioned into coos as they suckled greedily and happily.

Toto’s cries couldn’t transition into baby coos because his mother had abandoned him at the hospital. This will turn out to be just the first drama of Toto’s life. His young life will wallow in bitter struggle of adults accusing each other of trafficking and corruption.

Mama Lucy Hospital is located about two kilometres away from the low-income Kayole estate.

With population estimates that range between 200,000 to half a million people, Kayole is one of Nairobi’s most densely populated places. Irrespective of the actual size of this population, the only Swedish cities with more people than Kayole are Stockholm and Gotheburg. It is in this sprawling estate that Toto’s grandmother seems to have been living at the time she took her daughter to hospital a few days before Toto was delivered.

The only record at Mama Lucy Hospital about Toto’s next of kin was a phone number belonging to a neighbour of Toto’s grandmother. This is the number that Nairobi-based Little Angels Network Society called multiple times. Their hope was to trace Toto’s grandmother and hopefully work towards kinship reunification. Unfortunately, the neighbour informed them that Toto’s grandmother had since moved away from that particular neighbourhood and hadn’t left any forwarding address. It was clear to Susan Otuoma, the CEO of Little Angels that they had hit a dead end.

With no mother or biological relative to claim him, Toto stayed at Mama Lucy Hospital for three months before being moved to Kenyatta National Hospital, Kenya’s biggest referral hospital for three additional months.

After the three months, Baby Toto was transferred to a Nairobi-based Children Home. It is while he was at the Children Home that Toto became an adoption target of prospective Swedish adoptive parents. They knew about him through Little Angels Network.

Susan Otuoma, the CEO of Little Angels has been in the Child Care sector since 2001 when she co-founded Little Angels Network. Interestingly, this is the same year that Kenya’s epic Children’s Act was born.

Before this Children Act came into force, Kenya’s only legislation on children was known as Children and Young Persons Act. It was enacted in 1964, barely a year after independence, which made it quite outdated, necessitating another more comprehensive law. When Kenya ratified the 1990 Convention on the Rights of the Child (CRC) it initiated a sweeping process to review existing child laws and recommend comprehensive reforms that would be in line with CRC’s provisions.

After a decade of political struggles and hard work the Children Act was born. Although fifteen years old, the Act remains a model piece of legislation. Amongst other things, it introduced legal definition of a child, created a Children’s Court, established a set of children’s rights and laid out both government and citizen duties. The Act also provided rules on adoption, foster care, institutionalization and other provisions related to guardianship of children. Before this Act, legal provisions on these key child welfare issues had been hazy and ambiguous.

Through stipulations contained in this Act, Little Angels was able to apply for and receive licensing as an adoption society in 2005. It became one of only five organizations that were granted such a license.

Before they flew into Kenya, the Swedish couple seeking to adopt baby Toto had been through three years of rigorous assessment and counselling in their home country. Another Swedish couple which was seeking to adopt a Kenyan baby known as Baraka also underwent the same rigorous process.

At different times, dossiers for both couples were sent to Little Angels by a partner adoption organization in Sweden. They contained their psycho social reports, medical reports, financial reports and other relevant reports. Little Angels relied on these dossiers plus their own assessment of the couple before they finally entrusted baby Toto and baby Baraka into the care of these Swedish couples for a six-month bonding period in Kenya as is the provision of the Children’s Act. After this bonding, the next step was going to be a court session where the court would give the final adoption order.

In the course of these adoption proceedings, in November 2014, Kenya’s government enacted an indefinite moratorium on inter-country adoption of Kenyan children by foreigners. This automatically revoked inter-country adoption licenses of adoption societies like Little Angels.

The moratorium was informed by the Global Report on Trafficking in Persons 2014, (UNODC) that cited Kenya as a source, transit, and destination country in human trafficking. Even though there was no mention in the report of the licensed adoption agencies playing a role in the trafficking, the Cabinet argued that the Kenyan Law contained loopholes that have put children at risk and made it easy "for fraudulent, vested interests, masquerading through ownership of children homes, adoption agencies and legal firms representing children, and adopters, to engage in the unscrupulous business of Human Trafficking under the guise of charity."

Susan of Little Angels questions the reasoning behind the moratorium, “the allegation that adoption was stopped purely based on a report that suggested that trafficking in Kenya was on the rise, that cast some doubt because there is a very well streamlined adoption process, and any parent going through the adoption process, is not a trafficker.”

Luckily for the Swedish couple, adoption cases that had been initiated before the moratorium were not affected.

But there was a rude shock for them around the corner!

One organization seems poised to determine the future of Toto and other vulnerable children. In 2014, it was transformed into a State Agency although a parliamentary committee later ruled that the Executive decision which turned it into a State Agency was flawed and should be rescinded. This is yet to be done We are talking about the Child Welfare Society of Kenya (CWSK), the oldest adoption society in the country. Founded in December 1955, it is eight years older than independent Kenya. The organization’s current patron is President Uhuru Kenyatta. A patron is largely a ceremonial figurehead of an organization.

Given the depth of experience and the breadth of its reach across Kenya, CWSK is without doubt a key player in enhancing the welfare of Kenya’s vulnerable children.

Together with Little Angels Network, Kenya Children’s Home, Kenyan to Kenyan Peace Initiative and Buckner Kenya Adoption Services, CWSK was one of the five organizations that were registered as adoption societies and until 2014, licensed to conduct intercounty adoptions.

For unknown reasons, earlier in October 2013 the then Minister of Labour and Social Services Kazungu Kambi had exempted CWSK from a section of the Children Act that calls on adoption societies to seek annual renewal of their licenses. In other words, the Government said that this particular organization would not have to be subject to control in the same way as other adoption societies.

Peter Kamau, a dapper man with bushy but well-kempt afro-hair that makes him look older than he is, thought that this was wrong. Together with his organization, Child in Family Focus-Kenya (CFFK) he challenged this exemption order in court.

In taking CWSK to court, Peter’s driving force was the welfare of vulnerable Kenyan children. He himself had been a vulnerable child. His mother died when he was only twelve days old. After his father’s passing on one year later, Peter together with five older siblings were taken to the then Thomas Barnardo Children Home, currently known as the Kenya Children Home.

It was in this well-known Children Home about three kilometres from Nairobi’s Central Business District that Peter grew up. For his entire childhood, he shared a room with 30 – 40 other children who were under the care of two ‘house mothers.’

Unlike Toto, Peter and his siblings did not even come close to adoption. They spent their entire lives in Thomas Barnado. At eighteen, he was told that his bed was no longer available. After college, Peter felt that it was time for him to give back to the home that raised him so he went back there, this time as a social worker.

For nine years, Peter occupied a front row seat in the lives of the children as they transitioned into adolescence and adolescents jumped into young adults. In 2012, Peter resigned and started his own childcare organization Child in Family Focus-Kenya (CFFK).

After six months of the court case, Peter’s organization won and Justice Weldon Korir, the presiding judge noting in his ruling that, “Any attempt to remove any adoption society from the supervision of the adoption Committee would defeat the intentions of the legislature.” However, CWSK appealed this ruling. (At the time of going to print this appeal was still pending, meaning that the status quo remains).

A couple of months into the bonding sessions with their prospective adopted kids, the two Swedish couples came face to face with the rude shock that had been lurking around the corner. Alleged biological relatives sought a court order to halt the adoption proceedings claiming that they hadn’t granted consent for their children to be adopted. Although it was not clear why they came forward now, they did have a constitutional right to institute legal action.

For the Kenyan public, the struggle over Toto’s and Baraka’s was played out in their homes when NTV, one of the most viewed TV channels aired a report of the case.

On August 17 2015, millions of NTV viewers watched as journalists accompanied by child welfare officers and police went to the upmarket homes of the two Swedish couples. The impression given was that Kenya had a problem with adoption-related child trafficking and that the Swedish couples were trying to evade justice. The NTV reporter said that, “The three children offered for adoption to two Swedish and Danish couples that are now the subject of an intensified search by police and officers from the Child Welfare Society of Kenya. A search that took police officers back to their apartments in Kilimani estate where police encountered locked doors in one and an open door but emptiness inside of another.”

A few days later, another report from the same station showed biological mothers of the children reunited with their children. It is however yet to be proven if they were indeed biological mothers of the children. Print reports of the same case in newspapers like the East African Standard were more factual in their reporting of the case.

Lady Justice Lydia Achode directed that the minors be placed under the care of the director of Children Services until the application by their alleged families was heard and determined.

The legal counsel for these families was Seth Ojienda, a Nairobi-based Lawyer. He remains skeptical about intercountry adoption, “the reason why the government put a stop to international adoption as a whole was that it was found that it was a route for child trafficking.”

He has strong words for adoption societies in the country, “As a private entity, it cannot be interested in tracing the children back (to their biological families). Because they are in business.”

Juliet Nyambura Gachanja, the Executive Director of The Cradle, one of the leading Children Rights Organizations differs with Seth’s views on intercountry adoption, “If anything, the moratorium on intercountry adoption can encourage illegal adoptions that can fuel child trafficking.”

The Cradle together with other players successfully pushed for the enactment of the Victim Protection Bill that provided a strong legislative tool in the fight against human trafficking. The hope is that this law will greatly help in securing conviction against child traffickers.

As this opposing views show, there are many difficult questions and even stronger opinions on intercountry adoptions. Court documents show that between 2005 and 2013, the five private adoption agencies in Kenya facilitated 639 intercountry adoptions. It’s not clear exactly how many domestic adoptions there were during the same period but experts note that the number is in thousands, not hundreds like the intercountry adoptions.

Critics contend that because intercountry adoptions are meant to be a last option, these numbers are too high. But adoption agencies in Kenya always point out that with its strict laws and lengthy process, it is impossible for intercountry adoptions in Kenya to be a conduit for child trafficking.

Seth Ojienda, the lawyer of the alleged biological relatives of babies Toto and Baraka is a big guy who stands at well over six feet tall. His voice is just as big as his physique. The combination of a booming voice and a huge body frame can be intimidating in court, especially as he walks towards the witness stand.

On January 29th2016 at about 11AM, Susan Otuoma the CEO of Little Angels was in the witness stand, on the receiving end of Seth’s rapid fire questions. Seth stood on the opposite side of the witness stand as he started cross-examining Susan. As he neared the end of his cross examination, he walked towards the witness stand in long, slow strides and made reference to the subsidiarity principle.

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption espouses the principle of subsidiarity which makes it clear that intercountry adoptions should be a last option. In his cross-examination of Susan Seth brought up this issue severally, insisting that national solutions were not given prominence because there was more money to be made from intercountry adoptions than national adoptions.

In response, Susan stressed that she had communicated with other adoption societies in the country and none had prospective Kenyan adoptive parents for the two babies.

“Did you contact the Child Welfare Society of Kenya?” Seth thundered from across the room.

Susan responded that CWSK had proved to be an uncooperative partner and she had therefore not contacted them.

Sitting in her office a few days earlier, Susan had explained why adoption societies like hers continue to have misgivings about CWSK, “there has been a big battle in this adoption sector in this country because for a long time we had one agency that worked as a monopoly. And then the law changed to open up adoption to other agencies.”

Such sentiments suggest that the winds of conflict that blew the adoption case into court seem to have been partly fanned by the quest of the dominant player in the adoption sector to consolidate dominance of the children sector in Kenya. Other sources add that such dominance comes with financial rewards. As a State Agency, CWSK already receives approximately 7.5 million Euros from the State annually. In addition, CWSK’s status as a State Agency already elevates it above other adoption societies in the country.

Almost one week later on 4th February Lady Justice Ougo had to schedule four additional hearings after the CEO of Child Welfare Society of Kenya failed to show up to testify. The usually calm judge was visibly angry as she made it clear to CWSK’s lawyers that they had better make sure that their witness showed up in the next hearing.

As this legal manoeuvring played out in court, babies Toto and Baraka remained under the custody of the State in an undisclosed location. Though their exact ages are not in the public domain, they are both less than five years old.

When she finally rules, towards the end of March at the latest, the judge is expected to either halt the adoption proceedings altogether or allow them to proceed to their logical conclusion.

Meanwhile, a DNA test ordered by the court largely proved the biological relation of baby Toto’s alleged grandmother to him. Only time will tell whether this will play a critical role in the court’s final ruling and if the alleged grandmother or any other supposed relatives of the two babies would testify in court.

THE BEST INTERESTS OF THE VULNERABLE KENYAN CHILD

The last word on Kenya’s struggle with both domestic and intercountry adoption belongs to Simon, a thirty year old advocacy officer with Child in Family Focus-Kenya (CFFK). Simon is himself an adoptee who was adopted by a Kenyan couple when he was about six months old. He therefore knows what it means to be an adopted child.

Simon agrees with the subsidiarity principle of the Hague Convention’s that indeed, intercountry adoptions should be the last option as long as national solutions have been considered.

But he adds a twist, “subsidiarity principle assumes that domestic solutions exist. What if they are not as good as they should be?”

Beyond adoption laws and policies, Simon adds emphatically that most people and players miss the point completely, “It’s not about a child who needs a family but a person who needs a child.”

The focus must be on the vulnerable Kenyan child who needs the best care possible and not on a couple somewhere whether in Kenya or outside Kenya, who need a child.