Magistrate Esmie Tembenu of Blantyre Child Justice Court sits quietly in her office behind Soche Police, unlike a normal Tuesday morning.
Tembenu has never been known to be an enthusiastic soccer fan. Tell her about children, and you get all her attention.
“I have great passion for children,” said Tembenu.
No wonder, she knows pretty well why the eldest son is so often the first one to leave parents’ home. It’s not like the first born is escaping or disowning the family; it’s just that any great economic upheaval or orphanhood alters normal patterns and the oldest son begins to develop doubts about the capability of his parents to fend for the family. They then leave home early, out of necessity. They must find jobs quicker and quicker, different from the current generation.
That is Tembenu’s meal, everyday. Not this Tuesday, October 6, 2009: The child magistrate is thinking about the World Cup coming to South Africa in 2010.
Africa is happy that, for the first time in history, it will play host to the world’s largest soccer fiesta. Tembenu is happy, too, because she realizes the greatness of the event.
She is also worried.
“The World Cup will exert more pressure on the justice system, and I think the child justice system will be one of the most affected. Malawi should expect more adoption applications, most of which will not be in good faith. There will be people coming around, pretending to adopt our children for a better life when, in fact, they want to use them for sexual purposes,” Warns Tembenu.
She has observed the signals flashing back and forth, and wants Malawian parents and guardians to be on the lookout. The problem is that most people know little about adoption.
Other challenges include lawyers deliberately misinforming parents and guardians that their children would come back after growing up and attaining higher education. Some NGOs also cheat the courts, claiming parents or guardians have consented to adoptions when they have not.
That is where social welfare officers come in, to ascertain the truth. Those found on the wrong side of truth lose their adoption applications, and the children.
Child rights activists have called for amendments to the Adoption of Children Act, saying current provisions are replete with ambiguities and loop holes. At the moment, the main bone of contention is the provision that addresses the issue of ‘residence’.
“Is it merely the question of a foreign citizen coming to Malawi and booking themselves a room at an up market hotel, or the purchase of an old house in Nthalire?” The question of Maxwell Matewere, executive director for Eye of the Child.
Chief Justice Lovemore Munro did something to clear the air on the question of ‘residence’ in a Supreme Court ruling that went in favour of Pop star Madonna. Madonna’s efforts to adopt toddler Chifundo Mercy James were earlier thwarted by a High Court ruling that questioned her credentials as a resident of Malawi.
However, says Tembenu, most magistrates are yet to lay their hands on copies of that ruling.
Chances are that, with requisite amendments long-coming and the ruling poorly circulated, the World Cup may become just another big hole for child traffickers.
“We need to put our house in order well before the World Cup. Not only the World Cup, but in time for more international adoptions. We can see them coming really hard and exerting unnecessary pressure of our adoption system,” said Matewere.
Even Justice Edward Twea, a High Court Judge and Chairperson for the National Juvenile Justice Forum, knows the tangible benefits of locking the doors before the thief arrives pretty well. He offers three suggestions:
“There is need for the ministry responsible for children affairs to establish a national registry for children that can be adopted. This will serve as our adoption list and help prevent cases where foreign nationals come here and choose children they want to adopt; this time, it will go according to the Ministry’s registry.
“We also need to ratify the Hague Convention on Inter-Country Adoption. This will help us monitor Malawian children adopted by foreign citizens, and our social welfare officers will be able to liaise with their counterparts. The last suggestion is that, due to the complexity of international adoption processes, I think it would be better if such cases were handled by the High Court,” said Twea.
The courts are currently seeking direction from the Office of the Chief Justice on whether international adoption cases should be handled by the High court only, or not.
Currently, adoption applications can be filed at subordinate courts or the High court. Only those who are 21 years or older can adopt children, though a single man or woman can not adopt a girl or boy child, respectively.
Twea acknowledges that most people know little about the implications of adoption. He cites Malawians who adopt foreign children. When the children become problematic, the locals complain to the natural parents they will send the children back! Back where?
“This contravenes the definition of adoption because this is a legal process of transferring natural rights from parents or guardians. If you were the mother or father, it means you are no longer the legal parent of that child,” he said.
Then, there is the case of a Malawian woman who married a foreign national. They took the wife’s children with them and crossed the borders, hoping the marriage would survive everything but death. The unexpected happened when the marriage collapsed, and the wife came home.
She has been struggling to have the children back. Ratification of the Hague Convention on Inter-country Adoption would have helped, perhaps. Without it, her children are as better as lost.
Now the World Cup comes, in less than a year from now, without Malawi ratifying the Hague Convention. Fears are that it may turn out to be another hole through which children go and never come back.