On 27 February 2020, a decision by Justice Aggrey Muchelule of the at the Court of Appeal, following an appeal in adoption case involving a four-year old girl known as Baby SS.
The appeal had filed by a Kenyan woman, 40, and her Dutch husband after High Court Judge W Musyoka had ruled the adoption on the grounds that such adoption was unlawful by dint of the Cabinet moratorium on inter-country adoptions.
The moratorium had been enforced by the Cabinet in November 2015 as a way of addressing the shortcomings that existed due to a lack of policy and legislative measures to address human trafficking.
At the time, Kenya’s image was at its worst on the issue of human trafficking, a global report on trafficking in persons citing Kenya among the countries that denied existence of the vice and neglected its obligation to report the crime.
In the same year – 2014 – Kenya was cited as a source, transit and destination country for human trafficking and was also indicted by the US State department for being on the tier-2 Watch List of countries that were not compliant with minimum standards for elimination of human trafficking.
By the stroke of Justice Muchelule’s pen, the moratorium that was intended to position Kenya out of the lost of Nations that lacked severe penalties for persons targeting children for trafficking had been impeach through misrepresentation of law.
While overturning the decision to deny Waithera Karanja and her partner Cyrillus Schenk the adoption orders, thereby allowing them to be the legal parents of Baby SS, is no cause for alarm; the order contained in paragraph 15 of the ruling by Justice Muchelule has raised eyebrows and even more questions than answers.
“The (Cabinet) moratorium dated 29th January 2015 regarding inter-country adoptions[…] is in excess of power, illegal and unconstitutional,” read the ruling by Justice Muchelule.
This declaration was premised on arguments by the applicants’ lawyer that the moratorium was a mere public notice which stood in the face of the Chilren’s Act which had not been amended to include the moratorium.
Further, they had submitted, successfully, that the moratorium had not been gazetted and as such could not prevail over the express provisions of the substantive Statute.
The question that critics of inter-country and resident adoptions have been left pondering is why or how Justice Muchelule could fault his High Court colleague’s ruling to deny adoption orders by stating that Justice Musyoka had erred by deciding on the basis of the moratorium which had not been presented in court.
The moratorium had been made a part of the Children’s Act through Statute Law Miscellaneous Amendment Act No. 11 of 2017 as Section 156 (4).
“The Cabinet Secretary may issue a moratorium on inter-country and resident adoptions where there is sufficient evidence to support the opinion that such adoptions or processes leading to such adoptions are likely to be in contravention of the Constitution or any other written law,” provided the Statute Law Amendment Act 2017.
Child welfare campaigners continue to question how the judge could ignore such provision of law and open the flood gates for a litany of inter-country and resident adoptions applications by such declaration that the moratorium was unconstitutional.
Further questions surround the failure by Attorney General Paul Kihara to neither appear during the hearing nor swear an affidavit to explain the legality of the moratorium.
The argument is that had the AG appeared or sworn the affidavit, perhaps the court could have held a view different from the declaration of the moratorium being illegal.
But of even greater concern is the fact that to date, the AG has not appealed against the ruling by Justice Muchelule that a moratorium provided for by law is “in excess of power, illegal and unconstitutional”.
Justice Muchelule has often courted controversy in his decisions and has been accused of being allegedly sympathetic to sections of the legal and adoption sector fraternity that have been accused of being responsible for child trafficking.
