CAVENDISH UNIVERSITY ZAMBIA SCHOOL OF LAW

AN ANALYSIS OF LEGISLATION PROCESS IN ZAMBIA

BY

BELITA KUMWENDA STUDENT NUMBER: 122507034

i CAVENDISH UNIVERSITY ZAMBIA SCHOOL OF LAW

. Being a final year dissertation submitted to the Cavendish University Zambia, School of law, in partial fulfilment of the requirements for the award of the degree of Bachelor of Laws.

I recommend that this directed research prepared under my supervision BY BELITA KUMWENDA STUDENT NUMBER: 122507034

Entitled

AN ANALYSIS OF CHILD ADOPTION LEGISLATION PROCESS IN ZAMBIA

be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the requirements relating to the format as laid down in the regulations governing directed dissertation.

Date: Date: Belita Kumwenda Matente Kaunda (Supervisor)

Sign ………………………… Sign………………………

ii DECLARATION

I, BELITA KUMWENDA student number 122507034, do hereby declare that I am the author of this directed research entitled: “An analysis of child adoption legislation process in Zambia” and confirm that it is my original work. I further declare that due acknowledgement has been given where other people's work has been used. I believe that this research has not been presented in the school or indeed in any other learning institution for academic purposes.

Date:

Student's signature…………………………..

iii DEDICATION

iv ACKNOWLEDGEMENTS

Appreciation is due to Matente Kaunda, my supervisor for the time and advice spared and genuinely rendered to me.

My further gratitude also goes to all friends, and Cavendish University staff, for giving me valuable assistance in different ways.

In the same vein, my indebted admiration also goes to my for laying a good foundation for me and for their inspirational advice to always value school and work hard in life.

5 ABSTRACT

The analysis of Child adoption process in Zambia aims at identifying the gaps existing in the Zambian legislation dealing with the protection of children's rights because of the contemporary legal provisions enumerated in international instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Therefore, it is envisaged that the study intends to help document some of the existing gaps and shortcomings to provide the basis for advocating for the enactment of a more modern and just legal framework which may help in addressing, in a more meaningful way, the contemporary concerns related to the protection of the child's rights. The study focuses on law relating to the adoption of children in Zambia is analyzed in the context of the principles outlined in the CRC which require state parties which permit the system of adoption should ensure that the best interest of the child is given paramount consideration in all matters affecting the child. The research is completed by a summary, conclusion and recommendations in chapter six. The recommendations have focused more on the gaps found in the statutes that have been reviewed and the proposals to address them.

6 LIST STATUTES

The Adoption Act, Chapter 54 of the Laws of Zambia. The Affiliation and Maintenance of Children's Act, Chapter 64 of the Laws of Zambia. The African Charter on the Rights and Welfare of the Child, 1999 The Births and Deaths Registrations Act, Chapter 51 of the Laws of Zambia England and Family Reform Act of 1987. The International Labour Organization (1919) The Act Chapter 52 of the Laws of Zambia. The United Convention on the Rights of the Child, 1989

LIST CASES

Feliya Kachasu vs. Attorney General (1967) ZR P. 145 Michael Andrew Macgarry v Eric Victor Macgarry (1999) HP/374. Oparaocha v Winnie Murambiwa (2004) SCZ Judgment no. 15 R v. Chinjamba 5 NRLR vol. V 384. Rita Mwalubanga v Jeep Juul Nielsen (2000) HPA/46 Whicker v Hume (1985) HLC 124

7 TABLE OF CONTENTS CHAPTER ONE

1.0 Introduction1 1.1 Background to the Study…. 1.2 Statement of the problem…………………………………………………………… 1.3 Research Objectives………………………………………………………………… 1.4 Research Questions………………………………………………………………….. 1.5 Research Methodology……………………………………………………………… 1.6 Significance of the study…………………………………………………………….

CHAPTER TWO

2.0 Introduction…………………………………………………………………………. 2.1 Definition of adoption………………………………………………………………. 2.2 Definition of ………………………………………………………………….. 2.3 Restrictions on making adoption orders…………………………………………. 2.4 Consent to adoption………………………………………………………………. 2.5 Adoption and interim orders…………………………………………………….. 2.6 Affiliation adopt and restriction of adoption………………………… 2.7 Inspection of books………………………………………………………………. 2.8 Arrangement: adoption societies…………………………………………………. 2.9 Restrictions: sending infant aboard ……………………………………………… 30 Conclusion…………………………………………………………………………

CHAPTER THREE

3.0 Introduction …………………………………………………………………… 3.1 Research Philosophy and Approach…………………………………………….. 3.2 Research Design…………………………………………………………………. 3.3 Limitation for the study………………………………………………………….. 3.4 Ethical Consideration……………………………………………………………. 3.5 Conclusion……………………………………………………………………….

CHAPTER FOUR

4.0 Introduction ……………………………………………………………………. 4.1 Legal and Institutional Framework…………………………………………….. 8 4.2 The law on adoption of children………………………………………………. 4.3 Qualification for adoption……………………………………………………… 4.4 Domestic Adoption vs …………………………………. 4.5 Department of social welfare………………………………………………….. 4.6 Role of child welfare officer……………………………………………….. 4.7 Role of social workers……………………………………………………… 4.8 Role of lawyers……………………………………………………………….. 4.9 International adoption……………………………………………………….. 4.10 Negative consequences……………………………………………………... 4.11 Hague Conference…………………………………………………………. 4.12 Conclusion…………………………………………………………………….

CHAPTER FIVE

5.0 Introduction……………………………………………………………………. 5.1 General Conclusion……………………………………………………………. 5.2 Recommendations………………………………………………………………

9 CHAPTER ONE

1.0 INTRODUCTION

This study focuses on analyzing issues of child adoption legislation process and policy as well as the prevention and response mechanisms on abuse, maltreatment and negligent. Strengths and weaknesses in the system are to be reviewed along with the legal provisions governing the protection of the child adoption process. The study is to evaluate the roles of civil society, statutory authorities and the community in providing a comprehensive protective mechanism for children. Moreover, the adoption is the creation of a legal relationship between parent and child where it did not exist biologically. Adoption provides a permanent home and family for the child. The essence of adoption is to provide a parentless child with a permanent home and a permanent home parent/ child relationship where this did not exist. This takes the effect of making an adoptive parent have responsibilities over the adopted infant as if it were their very own biological child. Adoption is a process provided through an Act of parliament the Adoption Act CAP 54 of the Laws of Zambia. In the Zambian context, a person who has not attained the age of twenty-one and /is or has not been married can be adopted. Such a person is referred to as an infant/ a child. A Zambian or foreigner may adopt subject to section 4 (1) of the adoption Act CAP 54 which provides the following conditions: "An adoption shall not be made in respect of an infant unless the applicant or in case of joint application one of the applicants has:"

i. Attained the age of twenty-five years and is at least twenty-one years older than the infant. ii. Has attained 21(twenty-one) years and is a relative of the infant. iii. Is the mother or father of the infant.

However, Subject to the provisions of Section 5 of the Adoption Act, an adoption order cannot be made:

i. Except with the consent of a parent or guardian of such an infant. ii. On the application of one of two spouses except with the consent of the other spouse.

10 The purpose of this study is to establish the gaps, strengths and weaknesses in child adoption legislation process and come up with clear recommendations to strengthen the various components of the child adoption legislation, including the development of clearly elaborated and user-friendly child protection framework which will facilitate the development of a National Child adoption legislation and policy. The National Child adoption legislation and Policy once developed will form a basis for all child adoption policy initiatives and upon which the child adoption legislation framework will be anchored. It is expected that an improved child adoption legislation and policy will provide a mechanism through which , communities, structures, institutions and society at large will prevent and respond to situations of violence, abuse, exploitation, maltreatment and negligent treatment of children adopted. The study, therefore, provides an opportunity for a systematic approach to child adoption process and policy, providing opportunities for more effective programming, better targeting, effective utilization and maximization of resources, structured coordination of various actors, with the result being the creation of a protective environment for children.

1.2 BACKGROUND TO THE LAWS OF ADOPTION

Adoption existed in various forms throughout the world and dates back to antiquity. Biblically it dates far back before the birth of Christ when Moses an Israelite was adopted by king Pharaoh's daughter during the Israelites exile in Egypt. 1 In these societies, adoption was primarily to ensure the continuity of wealthy families by providing for the inheritance of property and the performance of ancestral worship.2 Roman law, for example, permitted adoption only to provide heirs to the childless and provided that adopters must be past bearing age and the adoptee must be an adult? In ancient Rome, the adoption of boys was a fairly common procedure, particularly in the upper class.3 The need for a male heir and the expense of raising children were strong incentives to have at least one son, but not many children. In the imperial period, the system also acted as a mechanism for ensuring a smooth succession, the Emperor

1 T. Barbra (1977), Adoption: A Second Chance (Open Books), at 3 2 Ibid. 3 Ibid. 11 taking his chosen successor as his adopted son.4 Probably the most famous adopted man in ancient times was Augustus Ceasar.5 He was born Gaius Octavius, he

4 Ibid. 5 Ibid. 12 was adopted by his great-uncle Julius Ceasar.6 His sister Clodia is also one known example of a Roman woman being adopted.7 In later years the number of increased greatly especially after the first world war, and this, in turn, led to a large increase in de facto .8 To have some sanity and order in this area the Adoption of Children Act 1926 was passed.9 In America, during this same period adoption was seen primarily as a service for childless couples, a way of providing them with a substitute child to satisfy their emotional needs and cement their marriage.10 It is, therefore, true to suggest that adoption in early days was regarded as a means of furthering the interest of adopters. Nowadays the concept has changed. Attention is being focused primarily on the welfare of a child, in principle his needs, his right to love, security and normal family upbringing.11

In Zambia on the other hand, the historical background of Adoption laws cannot be complete without looking at The and Adoption Society of Zambia (CCAS). It is a voluntary charitable non-political, non-religious, non-profit making and non-governmental organization (NGO) which was formed by an Act of Parliament in June 1956 as Cap 136 due to heightened public interest in the problem of child welfare. It was registered in 1957 as a central Apex Co- Ordinating Organization for childcare services. 12 This society was established for Europeans to take care of children born out of wedlock or unwanted babies to be placed in homes where they could be cared for. After Independence, the CCAS was handed over to private citizens in the Zambian community to

6 P. M. Bromley (1987), (7th ed. Butterworth), at 380 7 Ibid 8 Ibid. 9 Ibid. 10 Ibid. 11 F. Albert (1973), Beyond the Best Interest of the Child (Collier MacMillan Publishers), at 34 8 Cap. 54 of the Laws of Zambia 12 The brochure produced by Childcare and Adoption Society of Zambia, Lusaka Branch Executive Committee. Revised September 2005

13 continue running it. Even though they were all these changes, the actual contents of the Act have remained the same since 1956 with minor changes.

The CCAS is a -wide organisation with branches all over the country. The Lusaka branch runs the Chilenje Transient Home as a sole project and it was opened in 1979. This home can only accommodate twenty children but it must be pointed out that it receives an average of fifty to sixty children per year from various parts of Zambia and about ninety per cent of these children come from within Lusaka.13 The only other branch that has a Transient Home is Ndola which runs on the lines of Lusaka raising its funds. This home can only accommodate sixteen children. 14The two Homes' major programmes are adoption and fostering. There are other homes in other towns mainly along the line of rail. There is also the Kasisi Children's Home. This home is situated 30 kilometres out of Lusaka and it was opened in 1928 by Sisters of the Polish congregation 'The Little Servants of Maria Immaculata’ to take care of orphans. 15It began with eight children and has now become a well-organized that offers a loving home for two hundred and thirty children. 16 Over the past three years, the number of children at Kasisi has grown substantially, due to the combined effects of and AIDS.17Increasingly, families are no longer able to take care of orphaned children, as used to be common practice. Headlines in local newspapers tell the story of how babies are dumped, how children are lost and no relatives come forward to claim them and end up in . A story in a local newspaper recently tells of how a young mother of twenty-three years dumped her one-week-old baby in a pit latrine.18 Poverty levels are so high that people cannot afford to add an extra mouth to feed. 1.2 STATEMENT OF THE PROBLEM.

13 Id 14 Ibid. 15 https://www.kasisichildren.organisation.org/. visited 14th September 2020 16 Ibid. 17 Ibid. 18 The Post, Thursday, November 15, 2007

14 There are growing concerns that the implementation of initiatives to improve and enhance the child adoption legislation from various abuses as specified under various international conventions and treaties may be hampered by the national legislative and regulatory frameworks currently in force in Zambia. The current legal framework dealing with child adoption falls short of addressing contemporary issues related to children in many ways. Therefore, the study analyses and document the existing gaps and shortcomings in the selected child adoption-related legislation to provide the basis for advocating for the enactment of a more modern and just legal framework that will address, in a more meaningful way, the contemporary concerns affecting the child.

The government of the Republic of Zambia has put in place policies, strategies and programs to ensure that the children's rights as stipulated in various international instruments and national policies are protected. For instance, in 1994 the government adopted the National Program of Action(NPA) for children in Zambia which was a set of goals which the government undertook to achieve by the year 2000. The majority of these have still not yet been achieved as evidenced in the Fifth National Development Plan (2006 — 2010). This is although the National Plan of Action was an implementing tool for achieving the commitments made at the World Summit for Children in September 1990 and under the Convention on the Rights of the Child. Zambia's National Policies on the rights of the child are aimed at improving the welfare and quality of life of children, all of which draw on the principle of nondiscrimination, equity and the best interest of the child. These policies also cover broad issues of child welfare, health and education as stated in the Millennium Development Goals (MDG).

However, these MDGs will not be achieved by 2015 unless the government takes deliberate positive efforts to this effect. The National Child Policy of 200625 makes children the focus for development to ensure that children live to their fullest potential where rights and responsibilities are fulfilled. It must be noted that the National Child Policy is based on the CRC, thereby addressing explicit rights for

15 improving the welfare of children. It incorporates issues that have emerged in the last decade and having an impact on child development and welfare. It includes, among others, the issues of street children vulnerable children and HIV and AIDS. However, to implement the policy framework, there is a need for legislative, administrative and institutional interventions. Therefore, these interventions are to be identified in this study.

1.3 RESEARCH OBJECTIVES

The main objective is to analyse of child adoption legislation process in Zambia. The study is guided by the desire to have comprehensive and up-to-date information on the existing statutory and non-statutory systems that address child adoption process in Zambia.

1.3.1 SPECIFIC OBJECTIVES

The study-specific objectives are designed to highlight ongoing child adoption legislation concerns in Zambia. Below are the specific objectives

i. To review the statutory institutions and structures responsible for child adoption in Zambia ii. To map the legal and policy framework focused on judicial and social procedures related to the child adoption process. As part of this process of the investigation, the study is to review domestic laws and practices that have a direct bearing on the child adoption process in Zambia. iii. To analyze the child adoption legislative systems in terms of assessment, registration, coordination, information and monitoring processes. This analysis would identify clear roles and responsibilities and highlight the level of coverage from community levels right through to national structures. Propose a user-friendly child adoption legislation framework that includes a clear and phased continuum of care designed to enhance the safety and welfare of the adopted children in Zambia

16 1.4 RESEARCH QUESTIONS

i. Why does Zambia have particular legislation on Child adoption? ii. What led Zambia to adopt the child adoption legislation process? iii. What are the effects of Child adoption legislation? iv. Is adoption legislation suited to the present conditions? v. How can adoption legislation be improved? vi. Does legislation need to be replaced entirely by a new rule?

1.5 RESEARCH METHODOLOGY

This study uses secondary sources, namely, Statutes decided cases, published texts, such as books, periodicals and newspaper articles. The information is also undertaken from various institutions such as the Ministry of Community Development and Social Welfare, the Subordinate Courts, the Registrar of Births and Deaths offices and orphanages for the perusal of records. The study is not based on interviews. It does not conduct interviews with people at random to try and see what they think about adoption. Also, statistics are not provided or compiled both local and international to show the magnitude of the problem.

1.6 SIGNIFICANCE OF THE STUDY The current legal framework, apart from being outdated, may also fall short of addressing contemporary issues related to children such as the best interests of the child principle and the survival and development of the child concepts. It is envisaged that the analysis in this research paper will help document some of the existing gaps and shortcomings to provide the basis for advocating the enactment of a more modern and just legal framework that will help in addressing the concerns related to the protection of children's rights. An analysis of many legislations dealing with children's welfare shows that despite the parliament coming up with these legislations, children are still faced with many challenges as

17 their interests and rights remain unprotected or secured with the effect that these legislations are not effective in achieving their core objectives. Children continue to be discriminated in many instances and due to their weaker physical and mental state, they can not voice up to ensure the protection of their rights. Most of this child-related legislation need to be revealed to strengthen their legislative, regulatory and institutional framework.

It is therefore the aim of this study to highlight some of the weaknesses and discrepancies existing in these legislations and recommend some pragmatic solutions. Many international instruments also outline certain key principles as regards children's rights which States are obliged to observe as they enact their national taws such as the best interest of the child principle, the principle of nondiscrimination, the right to life, survival and development and the right to participate and respect the views of children as contained under Articles 2,3, 6 and 12 of the CRC. It is important to mention that though Zambia has not domesticated the CRC, these principles must be embodied in our national laws if children's rights are to be fully protected.

CHAPTER TWO LITERATURE REVIEW

18 THE ADOPTION ACT, CHAPTER 54 OF THE LAWS OF ZAMBIA.

2.0 INTRODUCTION

The analysis of the Adoptions Act, under this chapter, is aimed at identifying provisions of the Act which are still a source of concern in as far as the protection of children's rights is concerned. Therefore, the study highlights provisions of the Act which needs to be amended as well as those that will be found conforming with the view of demonstrating the legislative efforts in ensuring that children's rights are adequately protected. The purpose of the adoption Act as read from the preamble of the Act is to make provision for the making and registration of adoption orders, the registration and control of Adoption Societies. It regulates the making of arrangements by Adoption Societies and other persons in connection with the adoption of children. The Act also empowers the Commissioner of Juvenile welfare to supervise adopted children in certain cases. 19

The concept of adoption is however alien under customary law where a child is viewed as belonging to everybody in the extended family and does not have to be formally adopted through a court system. Under Customary law, therefore, any member of the extended family who exercises physical custody of the child exercises parental rights over the child.20 However, if any child from a customary set up has to be adopted through a court system, then the Act will still come in force.

2.1 DEFINITION OF ADOPTION

There is no statutory definition of the term adoption. The Adoption Act is silent on this. However, Adoption can be defined as a process whereby a child's legal parentage is entirely and irrevocably transferred from those formerly having

19 The preamble of the Adoption Act, Chapter 54 of the Laws of Zambia. 20 Lillian Mushota (2005), Family Law in Zambia: Cases and Materials (UNZA Press), at 387

19 parental rights, usually the natural parents, and vested in the adopters. Adoption is also a welfare and protection measures that enable an or definitively abandoned child to benefit from a permanent family. From the above definitions, it is quite true to say that adoption involves becoming a parent, on the part of the adopter and becoming a child on the part of the adoptee through a legal process, rather than through a biological process.

Adoption is entirely the creation of statute. It is impossible to adopt a child without a court order. A mere arrangement whereby a parent seeks to transfer his rights and obligations is ineffective. When an adoption order has been made all rights, duties, obligations and liabilities of the parents or guardians of the infant concerning the future custody, maintenance and education of the infant are vested in the adoptive parents. Legal adoption normally presupposes a complete and final separation between the child and its natural parents. The child, henceforth, looks to the adopters as its parents and the natural parents relinquish all their parental rights and duties forever out of the child's life. After the finalization of an adoption, there is no legal difference between adopted children and those born to the parents.

The status conferred by adoption is as follows; 21

i the Infant is treated as if he/she had been born in wedlock; ii the child is treated as if he/she were not the child of any person other than the adopters; iii the adopted child who was illegitimate at birth becomes a legitimate child of the adopter from the date of the adoption order; iv the child assumes the name of the adopters and has a right to nationality of the adopters; v he/she has a right to inherit from the adoptive parents as if they were his natural parents;

21 The Adoption Act, Chapter 54 (14) (1)

20 vi extinction of natural parents rights and vesting them in the adopter parents means all rights to consent to marriage are of adopting parents; vii maintenance orders as to custody of the child will be made to a spouse as if the child was a natural child of the adopters; viii the law prohibiting degree of consanguinity apply about marriage, notwithstanding that the infant mayor has since been adopted by other parents; ix Article 21 of the UNCRC provides that a system of adoption shall ensure that the best interest of the child shall be paramount.

The purpose of adoption laws is to help the children who are either neglected by their parents or who have lost their parents through death and have no homes of their own to be placed permanently in homes where they can be cared for. The ensures that these children are fussed into a normal family life where they are assured of love, care and protection and given an opportunity essential for their development. The Act among other things gives legal protection to children to ensure that their best interest is safeguarded and to make sure that no child is placed in a home that is unsuitable for him or her.

2.2 DEFINITION OF 'INFANT'

Section 2 which is the interpretation section defines the word 'infant' to mean a person who has not attained the age of twenty- one year but does not include a person who is or has been married. The definition of the infant in the context of the Adoption Act goes beyond the definition of 'child' in Article 2 of the African Charter on the Rights and Welfare of the Child, which provides for eighteen years. Further, it excludes any person below the age of years who is or has been married. If one gets married say at sixteen years and or is widowed at seventeen or any age below twenty- one year, that person is not regarded as an infant according to this definition.

21 It means therefore that, once a person has been married, even if the marriage is dissolved for whatever reasons before the person attain the age of twenty- one year, that person may not be adopted. The provision implies that the child's right to be adopted is lost or forfeited because of that child's previous marital status. This clearly may not be in the child's best interest. The definition is therefore discriminatory on account of marital status and is contrary to the principle of non- discrimination emphasized under Article 2 of the Convention on the Rights of the Child and Article 3 of the African Charter on the Rights and Welfare of the Child.

2.3 RESTRICTIONS ON MAKING ADOPTION ORDERS

Section 4 restricts the class of people eligible to adopt an infant. The restrictions are based on the age of the intending adoptive parents, the number of people who can adopt an infant, and the prohibition of a male as a sole applicant to adopt a female child.

The restrictions contained in this section are safeguard measures intending to protect the best interest of the child. The eligibility criterion is the maturity and the circumstances of the individual adopting. In terms of age, the applicant or case of a joint application, one of them must have attained the age of twenty- five years and must at least be twenty — one year older than the infant.22 .This provision also discriminates against the unmarried male person as a sole applicant who may not be the putative father of the infant but has a genuine passion to help the infant. Further, there are certain sections of people in society who because of their religious persuasions may not want to get married in life li but are of high moral and social standing in society. Criteria should be put in place to allow such people to adopt children. This section therefore discriminates both on the rights of the child to be adopted and the male applicants on account of status against article 2 of the CRC and Article 3 of the African Charter on the Rights and Welfare on the Child. The criterion here should have been whether the child's best interest will be protected.

22 Section 4( I )(a) of the Adoption Act

22 2.4 CONSENT TO ADOPTION

Section 5 provides that an adoption order can be made when consent to the adoption has been given by the parent or guardian of the infant or any person who maintains that infant. The court may, however, dispense with any consent requirement before the adoption where the court is satisfied that the person who is required to give such consent has abandoned, neglected or persistently ill-treated the infant, or has persistently neglected or refused to contribute the maintenance of the infant or where the person to give the consent cannot be found or is incapable of giving his consent or that his consent has been unreasonably withheld. 23The consenting parent or guardian is not entitled to remove the infant once it is placed in of the prospective adoptive parent unless the court grants leave for such removal. In exercising its powers the court will have regard to the welfare of the infant. 24

Article 21 of the Convention on the Rights of the Child requires that state parties which recognize and permit the system of adoption should ensure that the best interests of the child are the paramount consideration. Section 5 does not mention anything to do with the best interest of the child as a determining factor. Instead, there is much emphasis on Consent with a few exceptions under which the court may dispense with the consent requirement. It is clear that these exceptions are not exhaustive and an addition in the Act should have been added for the court to dispense with the requirement of consent where such is in the best interest of the child.

2.5 ADOPTION AND INTERIM ORDERS

Section 7 sets out the conditions under which the court may make an adoption order. The court has to be satisfied that the necessary consent has been given by

23 Section 5( l) of the Adoption Act. 24 Section 5(4) of the Adoption Act.

23 the appropriate person and that he or she understands the nature and effect of the adoption order, in particular, in the case of any parent that they understand that the adoption order will permanently deprive them of their parental rights; that the adoption order will be for the welfare of the infant, and that, due consideration for this purpose is given to the wishes of the infant having regard to the age and understanding of the infant.

24 In certain cases, the court may grant interim adoption orders, under section 8 giving the applicant not more than two years probationary period on such terms as regards provision for maintenance and education and supervision of the welfare of the infant as the court may think fit. Section 7 is meant to ensure that all the parties concerned understand the effect of the adoption. Where it is found that the parties to the adoption process did not understand the effect of the adoption, the courts have the power to revoke the adoption order. In the case of Michael Andrew Macgarry v Eric Victor Macgarry,25 the applicant sought an order for the revocation of the order made with her children on the ground that she did not at the time understand the effect of the adoption. She further contended that the order had created abnormal relationships in the family between the adoptive parents, the applicant and the adoptees. The court held that since the applicant did not fully understand the effect of the adoption, the adoption order should be revoked. The order was accordingly revoked.

Section 8 sets out important children's rights considerations in applications for adoption orders. The satisfaction of the conditions set out ensures that informed consent of all the parties has been obtained. The reference to the welfare of the child and the participation of the child in the adoption process conforms to the requirements of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The court must be satisfied that the child's best interest will be promoted by the adoption order. However, it will be noted that this section falls short on the 'best interest' standard set out in Article 3 of the CRC and Article 4 of the AC, as it merely provides for the 'welfare of the child' as opposed to the 'best interest of the child'

2.6 AFFILIATION ORDERS

25 (1999) HP/374 Section 17 provides for affiliation orders in force at the time of the adoption of an illegitimate infant. 26Of important to note is the requirement that if the child is adopted by his mother and the mother is a single woman, the payments which are being made by the putative father of the child in support of the child, shall cease if she subsequently marries.27

It is not clear whether the proposed consideration of circumstances is made to be a mitigatory factor against the discontinuation of the payments. The proposal may be included to assist in determining the best interest of the child involved after the mother remarries. This is because there is no guarantee that the man who has married the mother of the adopted child will be of better financial status than the putative father, hence the child may just end up suffering in certain instances. Regard should therefore be had to the best interest of the child as a determining factor and this should be reflected in the Act when determining such matters.

Further, in cases of children under affiliation orders and who are adopted by their mothers, there is no guarantee that if the mother marries, the child will be accepted to be a child of the family by the mother's spouse.28 If the child is not accepted, the Matrimonial Causes Act29 would not apply to that child. By being excluded from being considered as a child of the family, the child would lose his or her property rights about the mother's property and that of the putative father.

26 Section 2 of the Affiliation and Maintenance of Children's Act defines 'Affiliation Order' as an order made by the court declaring a man to be the father of the child identified in the order. 27 Section 17(2) of the Adoption Act provides that where an infant to whom any such order or agreement as is mentioned in subsection I relate is adopted by his mother, and the mother is a single woman, the order or agreement shall not cease to affect under subsection (l) upon the making of the adoption order, but shall cease to affect if she subsequently marries. An affiliation order is normally to a single mother of the child ordering the father of the child who, before the order was either unknown to be the father of the child or was out of the . The father normally accepts, either by agreement or court order, to be paying maintenance fees to the mother fòr the child. 28 No.20 of 2007 of the Laws of Zambia. 29 The preamble of the Matrimonial Causes Act provides for among other things. that it is an Act which provides for the maintenance, custody and guardianship of children of the family. Section 3 also excludes its application to marriages contracted by customary law.

26 2.7 RESTRICTIONS ADOPTION AND REGISTRATION OF ADOPTION SOCIETIES Section 18 makes it illegal for anybody of persons to make any arrangements for the adoption of an infant unless that body is a registered Adoption Society. Section 19 gives powers to the Commissioner of Juvenile Welfare to register Adoption Societies. Adoption societies are institutions involved in both local and international adoptions. Sections 18 and 19 are meant to curb abuse and commercialization of adoption and to ensure that the adoption of a child is authorized only by competent authorities who determine, following applicable law and procedures that the adoption is permissible because of the child's status as concerns parents, relatives and legal guardians30

The requirement of registration of Adoption Societies is one of the measures of combating the illicit transfer and non-return of children abroad. To safeguard and ensure the best interest of the child, the adoption of the child is authorized only by competent authorities.31.Adoption Societies are recognized as stakeholders in the adoption process. It is therefore important that such societies be registered and monitored by the government institution and in this case, the Ministry of Community development and Social Welfare would be the appropriate ministry to deal with such matters.

2.8 INSPECTION OF BOOKS

Section 21 makes provision for the Commissioner to inspect any registered Adoption Society's books, accounts and other documents relating to the performance of the Society. This section also provides for a penalty for failure to

30 Article 2 1 (a) of the Convention on the Rights of the Child and Article 24(a) of the African Charter on the Rights and Welfare of the Child. 31 Articles 21 and 24 of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare Child respectively.

27 comply with the Commissioner's request. Section 21 is important for transparency and accountability reasons. Article 24 of the African Charter on the Rights and Welfare of the Child requires that competent adoption authorities should conform to applicable laws and procedures and conduct procedures per the relevant and reliable information. Correct and appropriate information are important features in an adoption process to safeguard the best interest of the child. This section is in line with article 24 of the African Charter on Rights and Welfare of the Child. Article 21 of the CRC also underpins the importance of reliable information and the safeguarding of the best interest.

28 of the child by all competent authorities involved in the adoption process. It would thus be a good idea to increase the penalty in section 21 (3) of the Adoption Act for defaulters as a deterrent measure. 2.9 ARRANGEMENTS: ADOPTION SOCIETIES FOR ADOPTION

Section 22 prohibits adoption societies from making arrangements for the replacement of an infant in the care and possession of a person resident abroad, unless with approval of the Minister. The provision regulates and oversees the activities and operations of Adoption Societies. In respect of intercountry adoption, the Minister is empowered through the Commissioner for Juveniles welfare to grant a licence where an infant is sent abroad for adoption. 32 These measures protect the child and ensure that the best interest of the child is given paramount consideration in the adoption process. Further, the minister ensures that any adoption is conducted in an authorized manner by competent authorities as already alluded to under article 21 of the CRC and Article 24 of the African Charter on the Rights and Welfare on the Child. Section 22 therefore conforms to the international standards and does not need any amendment.

2.10 RESTRICTIONS: SENDING ABROAD

Section 32 prohibits inter-country adoption, except with the Minister's approval. The section makes it illegal for any person to make arrangements for the adoption of an infant who is resident in Zambia to be transferred to any person who is not the guardian or relative of the infant and who is resident abroad.

Article 21 of the Convention on the Rights of the Child and Article 24 of the African Charter on the Rights and Welfare of the Child acknowledges inter- country adoptions and encourages it as an alternative means of child care if the child cannot be placed under foster or adoptive family, or cannot in any suitable manner be cared for in the child's country of origin.

32 Section 32(2) Adoption Act of the

29 The African Charter on the Rights and Welfare of the Child requires that the child affected by inter-country adoption should enjoy safeguards and standards equivalent to those existing in the case of the national adoption). 33intercountry adoption gives rise to diverse issues such as cultural and different social dynamics. It is important therefore that inter-party adoptions should be handled with maximum consideration taking into account the best interest of the child as well as other cultural issues of the child's home country.

Section 32 does not adequately ensure that the child's best interests are given paramount consideration and that the adoption is the best alternative means for the child's care as provided for in the African Charter on the Rights and Welfare of the Child as it does not take into account the child's cultural background as one of the factors to be taken into consideration.34 Further, the section does not take into account the views of the child where the child can express him or herself as required by the Convention on the Rights of the Child.35

2.11 LICENCE: SEND THE INFANT ABROAD FOR ADOPTION

Under section 33, the Commissioner may grant a licence for the care and possession of an infant, for whose adoption arrangements have been made, to be transferred to a person resident abroad. Before granting the licence, the Commissioner should be satisfied that the application is made by or with the consent of every person or body of persons who is a parent or guardian of the infant in question, or who has the actual custody of the infant, or who is liable to contribute to the support of the infant.

33 Article 24 (c ) 34 Article 24 (c ) 35 Article 12

30 The section further requires that there should be a report from a Zambian Consular Officer, or any other trustworthy person, that the person to whom the care and possession of the infant is proposed to be transferred is a suitable person to be trusted 36131 .ln addition, the transfer must be for the welfare of the infant and due consideration being given to the wishes of the infant having regard to the age and understanding of the infant.

Section 33 does not go far enough in protecting the child as it does not provide for measures to ensure that the adoptive parents and adoptee are counselled and are subjected to home visits and management by qualified professions.

2.12 CONCLUSION

In conclusion, one can say that it is clear from the above that there are still some 'grey areas' in the Act which have to be amended if the protection of children's rights is to be fully realized and given the modern international standards set out both in the United Nations Convention on the Rights of the Child 37 and the African Charter on the Rights and Welfare of the Child 38 .The analysis has shown that the definition of 'infant' under section 2 of the Act needs to be amended to remove the discriminatory aspect on account of the status of children who might have found themselves married at an early stage but have not managed to maintain that status 39.Children who get married at an early age before they attain twenty — one but are either later divorced or widowed are excluded from the definition of 'infant' under section 2 just because they were once married. This is against the principle of non-discrimination emphasized in Article 3 and Article 2 of the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child respectively. Section 4 of the Adoption Act has also

36 Section 33(b) Adoption Act 37 The Convention on the Rights of the Child, 1989. 38 African Charter on the Rights and Welfare of the Child, 1999. 39 Section 2 of the Adoption Act defines 'infant' as a person who has not attained the age of 21 but does not include a person who is or has been married.

31 been found to be discriminatory on account of the status of the genuine male applicants who may want to adopt a female child. It was emphasized that regard should be had to the best interest of the child when determining the qualification for adoption. Under section 5 dealing with the requirement for parental consent, it was emphasized that the 'best interest of the child' should be included as one the exceptions for dispensing with the requirement of parental consent. This is in line with Article 3 and 21 of the Convention on the Rights of the Child respectively. Section 17 of the Act which deals with the adoption of an illegitimate infant and the discontinuation of payment of maintenance cost for the child to the woman when she remarries has also been analyzed in the context of Article 3 and 21 of the CRC respectively. This section is lacking in as far as the best interest of the child principle is concerned and needs amendments. The Convention on the Rights of the Child requires that in all actions concerning children, whether administrative or otherwise,

32 the best interest of the child should be given paramount consideration 40 .This principle is not emphasized in the Act but instead, the Act seems to have adopted the term 'welfare of the child'. This term is restrictive in the application as the satisfaction of the 'mere interest' of the child will suffice as being enough for the 'welfare of the child'

40 Article 3 of the Convention on the Rights of the Child. CHAPTER THREE RESEARCH METHODOLOGY AND DESIGN

3.0 INTRODUCTION This study focuses on the laws governing adoption process. The purpose of the study is to analyse the efficiency of the law governing the adoption process in Zambia. It also explores the remedies provided by the law, the loopholes in the said law and scrutinizes the effectiveness of the laws on the adoption process in solving the disputes of child adoption within the context of Zambia. Specifically, the study focuses on the following objectives:

i. To investigate ‘gap’ between the ‘legal ideals’ and ‘actual practice’ on the laws governing adoption in Zambia. ii. To understand ‘effectiveness’ or ‘impact’ of laws governing adoption process. iii. To find out as to whether the law governing the adoption process is serving the needs of society and has a social value. iv. To make suggestions for improvements in the law governing adoption on concrete formulations and proposals. v. To predict future trends of law governing adoption process

3.1 RESEARCH PHILOSOPHY AND APPROACH This study used the text-based approach to analyse on the efficiency of the law governing adoption process in Zambia, which accept the philosophical assumptions of constructivism (construction of primary data reality or realities) and commentaries (understanding based on commentaries and interpretation) paradigm.

Text-based studies rely on commentaries and interpretation as opposed to qualitative studies based on interviews.41 The term research philosophy and approaches in this study refer to an all-encompassing system of interrelated practice and thinking that define the nature of enquiry along the three dimensions: ontology (the nature of reality as perceived by a person); epistemology (the nature of knowledge in terms of being

41 M. Q. Patton. (2002). Quantitative research and evaluation methods (3rd ed., Sage) dependent or independent); and methodology (how to practically go about whatever can be known or done).42 Text-based studies concerning ontology, one person's assume that reality may not be the same as another person commentaries, it is likely to be independent or different; while concerning epistemology., it assumes that the researcher and secondary data are dependent because these mutually influence each other in their interaction.43 The research methodology adopted was a strategy of enquiry used in this study that moves from the underlying assumptions to research design and data collection.44

In text-based studies, all commentaries (a key idea or concept or structure) and characteristics need to be clearly and fully described to sufficient detail so that readers are in a position to observe them in appropriate contexts. Although constructs are not defined in terms of measurements and variability, the key phenomena under commentaries or texts –based investigation are defined in terms that allow readers and other researchers to identify them in the real world.45 This study is primarily based on the use of concepts such as child adoption, legislative adoption process as a means to prevent and resolve challenges of child adoption process disputes. Then, the method adopted is considered as a means to explore on remedies provided by the law, the loopholes in the said law and scrutinizing the effectiveness of law governing adoption process in solving the disputes of the adoption process in Zambia. Therefore, understanding these concepts is a sine qua non to ensure appreciation of the conceptual and text framework of the study based on already existing knowledge. As aforementioned in the literature of chapter two, a conceptual framework helps to identify key concepts, draw relationships, and highlight meaningful interactions between the concepts that have emerged from the literature reviewed to support the study. On the other hand, a test framework is a structure of concepts which exists in the literature and is ready for the study.46

3.2 RESEARCH DESIGN

42 B. Fisher et al. (2008). Dissertation Guides Workbook (Capella University), pp 28-30. 43 Ibid., p 29. 44 W. M. K. Trochim (2009), The research methods knowledge base (2nd ed., Atomic Dog Publishing) 45 B. Fisher et al. (2008), Dissertation Guides Workbook (Capella University), pp 34-38. 46 W. L. Neuman. (2011), Social Research Methods: Qualitative and Quantitative Approaches (7th ed., Pearson) The research design is the entire process of planning and carrying out a research study. It specifies the sources and types of data relevant to the research problem, objectives stated and the approach to be used for gathering and analyzing data; and also considers the issues of time and cost47. Research design aims to enhance the reliability of the research findings and as such, be able to contribute to the body of existing knowledge.48 This study qualifies to be referred to as a descriptive study because it is oriented towards finding out by describing and explaining the efficiency of the law governing the adoption process in Zambia

3.2.1 RESEARCH STRATEGY The study encompasses patents by analysing on the efficiency of the law governing adoption process in Zambia, as a method of solving disputes prevention and resolution in the adoption process. It also explored on remedies provided by the law, the loopholes in the said law and scrutinizing the effectiveness of laws in solving the disputes in the child adoption process within the context of Zambia. The definitions and interpretations of these concepts may help to provide conceptual clarity and how to extract meaning from already existing knowledge on the topic, from previous applied and academic research studies, for use in this study. However, it is also important to mention that, based on the identified research gap, this study took the form of a new perspective by looking into domestic law about Zambian child adoption process on the operationalization of the practice.

3.3 LIMITATIONS FOR THE STUDY The successful completion of the study was critical to identifying the repressive practices of adoption protection proceedings which affect a method of child adoption disputes prevention and solving adoption issues. While the successful completion of the study was critical, the following were barriers to the smooth completion of the study:

i. Inadequate financial resources. Research undertaking involves a lot of casts. Inadequacy in terms of finances made it difficult to complete all the key items of the study. All costs were paid for by the researcher, as all other

47 C. Selltiz et al. (1962), Research Methods in Social Relations, New York. P. 50. 48 C. R. Kothari, (2007), Research Methodology: Methods and Techniques (2nd ed. New International Publisher) avenues of for financial support exhausted. Expenses included data bundles to work electronic matters and stationery. The researcher overcame this by developing a research design that would be cost-effective but still meet the study objectives.

ii. The length of time that was taken to collect data given the procedural arrangements to be followed within the institution in which the study was conducted. iii. Some government institutions especially the state-owned were restricted to the public due to the COVID-19 prevention measures introduced under the Public Health Act Chapter 295, of the laws of Zambia (Delegated legislation by the minister of health). Therefore, institutional libraries were difficult to visit.

3.4 ETHICAL CONSIDERATIONS The research did not need the ethical approval because the data were directly collected from a source such as, government publications, websites, books, journal articles, internal records case laws, statutes, and electronic materials which were easily accessible but are not pure as they have undergone through many commentary treatments. As opposed to primary data which is an original and unique, which is directly collected from a source such as observations, surveys, questionnaires, case studies and interviews. The findings of the study were a true reflection of what the secondary data indicated.

3.5 CONCLUSION In conclusion, one could say that the method adopted facilitated to analyse the efficiency of the law restricting adoption process in Zambia, It also provided the base to explore on remedies provided by the law, the loopholes in the said law and scrutinizing the effectiveness of the law governing adoption process in Zambia in solving the issues of child adoption process within the context of Zambia. CHAPTER FOUR ANALYSIS OF DATA AND INTERPRETATION 4.0 INTRODUCTION It appears that in Zambia, adoption is seen as a foreign concept because people marry for procreation, to have their children. Therefore adoption is not readily accepted in the family setting. If a couple fails to conceive children as a result of medical inability which inevitably results in feelings of anxiety and insecurity, it is more acceptable for the couple to take one of their own from the extended family and not a stranger. It has also been seen that the Adoption Act governs the adoption of children. The Act in itself is a good gesture by the legislature to care for orphans and those unfortunate children whom for various reasons lack parental care.

It is a well-known fact that Zambians have a negative attitude towards adoption. This is because of customary values and traditional beliefs that a child should be kept by blood relatives. Africans had their way of taking care of orphans which were quite effective thus a lot of our local people saw no need for adoption if they could get a relatives child and bring it up as their own.

4.1 LEGAL AND INSTITUTIONAL FRAMEWORK: ADOPTION IN ZAMBIA

The law of adoption is contained in the Adoption Act Cap 54 of the Laws of Zambia. This was a reproduction of the English Adoption Act of 1950 with minor or no amendments at all. It was enacted in this country in 1956 as Cap 136. After Zambia's political independence, it was re-edited to Cap 281. It was further amended but with minor changes to Cap 54 and it is the current law on adoption in Zambia. The Department of Social Welfare of the Ministry of Community Development and Social Services oversees adoption in Zambia. While other statutes that deal with the matters of orphans are Juveniles Act Cap 53 of the Laws of Zambia. This Act relates to the process of handling of juvenile delinquents and protection of juveniles in need of care. The Juveniles Act also caters for the establishment of Reformatories and Approved Schools as well as identification of suitable homes or institutions for children in need of care. The Juveniles Act provides for foster care and the establishment of Voluntary Homes. The difference between these two Acts is that the Juveniles Act provides for foster care and the establishment of Voluntary Homes while the Adoption Act provides for the adoption of children.

In Zambia, the legislation that covers the rights of the children is scattered in various instruments, including the Constitution and twenty-six other pieces of legislation.49Zambia is also a signatory to the United Nations Convention on the Rights of the Child (hereinafter referred to as the CRC), it was unanimously adopted by UN General Assembly on 20th November 1989 and entered into force on 2 September 1990. 50 The CRC has been ratified or acceded to by 191 states, making it the most widely accepted human rights treaty in the world. 16 Since Zambia follows the dualist theory, international human rights treaties it has ratified do not automatically become part of the domestic legal system unless Parliament enacts appropriate legislation to this effect. Dualists see domestic law and international law as independent of each other. 51They hold that the two systems are mutually exclusive and can have no with and no effect on each other. If international law is applied within a state, it is only because it has been expressly incorporated into municipal law.52

4.2 THE LAW ON ADOPTION OF CHILDREN: SPOUSE AND FAMILY MEMBERS

Adoption is a process whereby parental responsibility is by court order taken from the natural parents to the adopters. The child is treated in law as if it were a natural child of the adopters and the parental connection with the child's natural parents is extinguished.53 The Adoption Act under section 3(3) allows a mother or father to adopt his/her child alone or jointly with her spouse. This provision covers cases of step-parents (mother or father). Adoption may be made under section 4(a) by any person who has attained the age

49 They include The Penal Code, Cap. 87; the Legitimate Act Cap.52; the Interstate Succession Act, Cap 59; the affiliation and Maintenance of Children Act Cap.64; the Birth and Deaths Registration Act Cap. 51; the Education Act Cap. 134; the Employment of Young Persons and Children Act, Cap274; the Apprenticeship Act, Cap. 275; the Citizenship of Zambia Act, Cap 124; the Wills and Administration of Testate Estates Act, Cap. 60; the Marriages Act, Cap.50. 50 P.R. Ghandhi (2001), Blackstone's International Human Rights Documents (2nd ed. Universal Law Publishing Co), at 102. 51 A. W. Chanda (2000), "Gaps in the Law and Policy in the Implementation of the Convention of the Rights of the Child in Zambia." Zambian Law Journal. Vol. 32, at 3 52 R. M. Wallace (2002), international Law (4th ed. Sweet and Maxwell), at 35 53 Mushota Lillian (2005), Family Law in Zambia: Cases and Materials (UNZA Press), at 386

8 of twenty-five and is at least twenty-one years older than the infant adopted or to is adopted. 4.3 QUALIFICATION FOR ADOPTION

A relative can also adopt a child under section 4(b), of the Adoption Act if the adopter is a relative of the child he/she must have attained the age of twenty-one unless by section 4(c) the applicant is the mother of the child. The adoption of an illegitimate child by its mother or father. i. The adoption of an illegitimate child by its mother and her husband (the child's stepfather) ii. The adoption of a legitimate child of a former marriage by its mother and her second husband (the child's stepfather). This has however been discouraged given the consequential extinguishment of the legal links with half his family, potentially damaging to the child. The preferred alternative was to extend the provisions enabling a step-parent to apply to become a guardian. 54 The Courts required the applicants to prove that adoption was better than a joint custody order made by the court. 55 Although the above provision has no direct application where the parents' marriage is ended by divorce or where the parents were not married in the first place, similar consideration have nevertheless been considered by courts iii. The adoption of an illegitimate child by the grandparents or by a married brother or sister of the mother and their respective spouses. The courts have long had reservation about granting adoption to relatives fearing an order would distort the natural relationship particularly in cases of adoption by grandparents. The main objective of family adoption is to remove from a child the stigma and disabilities resulting from illegitimacy and to keep it within the family.

4.4 DOMESTIC ADOPTION VS INTERNATIONAL ADOPTION 4.4.1 TYPES OF ADOPTION

There are two types of child adoption and these are domestic and international adoption. This chapter will focus on these adoptions and try and show how these are different but serve the same purpose. Adoptions are now taking place across bounders and continents. Globalisation and the development of technology have made it possible for those looking for children to adopt to look further than their boundaries. Information is readily available 54 Ibid. 55 Ibid.

9 through the print media, television and the internet. Zambia has not lagged in this area of development as information on how to go about child adoption in Zambia is readily available on the internet.56

4.4.2 DOMESTIC ADOPTION

Domestic adoption is an adoption that involves adoptive parents and a child of the same nationality and the same country of residence. 57There is a lot of uncertainty on domestic adoption and unfounded stories which in some cases could harm those who wish to adopt locally. Some of those wishing to adopt fear that the biological mother or parents might come and take the child away at some stage in future. A little education could go along way in this regard to clear some of the uncertainties.58 There is also the myth that when you adopt, you buying the baby. This misconception comes from the fees involved in the whole process and this differs from country to country. The fees involved in adoption pay for such services as social work counselling and legal consultations and not 'buying' a baby, which is illegal around the world. 59All aspects of adoption are regulated by state laws and reviewed by judges who preside over finalization to ensure that baby buying does not occur.

Domestic adoption does involve an element of a legal risk. Once biological parents have given consent, they have a small window of time in which to change their minds. It is vitally important for everyone involved, parents and children to know that birth parents have been given every opportunity to make the right decision and feel good about it. By the time an adoption is finalized both adoptive parents and birthparents are cognizant of the fact that the family formed by adoption is the one recognized as the child's family under the law.60

4.5 DEPARTMENT OF SOCIAL WELFARE

Social welfare is the wellbeing of an individual, family or community. Social welfare services refer to programmes and activities aimed at assisting persons in difficult circumstances by strengthening individual lives, families and communities, particularly

56 Africa Adoption Blog- Adoption trouble in Zambia. 57 Ibid. 58 Ibid. 59 Ibid. 60 Ibid.

10 where people are poor and venerable. 61 In Zambia, social welfare services are provided mainly by the Government, complemented by the non-governmental organisations (NGO). The Department is headed by a director and all orphanages operate under his authority. Registration of the institutions is required under section of the Adoption Act. The department does not run these institutions, but net-work

61 Paper on National Policy on Social Welfare from the Ministry of Community Development and Social Welfare

11 with and provides guidelines to NGO and individuals permitted to operate children homes. The Department also provides some grants to some of the homes. These homes provide care to children in need of care, (orphaned, abandoned or children whose parents or guardians are unfit to look after them).

4.6 ROLE OF CHILD WELFARE OFFICER

The selection of potential adopters and placement of the child with them is a crucial step in the adoption process. From the child's point of view, the placement must be a success so that every effort needs to be made, before the placement, to ensure as far as possible that the applicant will provide the particular child with a loving and secure home. 62The child-welfare worker has a big responsibility in ensuring that the home the child will be placed in will give the child the love, and support it needs. The Welfare Officer will visit the home and meet the family in there home to evaluate if they are an acceptable family or home to accommodate the child. The whole process is explained to them by the welfare officer and they are told that they will not be able to reverse it once the adoption is completed by a court. 63 The interview is also important as it helps the welfare officer to know the true intentions of the adopters and also helps them when they are making recommendations for the adoption.

62 Brochure from the Ministry of Community Development and Social Services 63 Ibid.

12 4.7 ROLE OF SOCIAL WORKERS

The social worker is responsible for interviewing prospective adopters. The social worker will also want to see the adopting couple in their home, usually more than on one occasion before he /she can make a decision. The social worker is primarily concerned with the happiness and prospects of the child; the happiness of the child is bound with the happiness of the adoptive parents, but the prime consideration must remain the happiness of the child. 64 An adoption cannot take place without the knowledge of the Department of Social Welfare.

Once it has been decided that the couple meet the qualifications for adoption the social worker then will advise them if a child is readily available. Under section 4(5) of the Adoption Act, the law requires that the child is fostered for three months under the supervision of the social worker. This requirement can be waived when deemed by the court to be in the best interest of the child.65

4.8 ROLE OF THE LAWYER

The Lawyers role is to ensure that the relevant law criteria and the procedure are followed. The lawyer advises the client accordingly on what the law is on adoption, that is, their rights and obligations. Most people are ignorant of The Law of Adoption, so the involvement of a lawyer helps greatly in clarifying issues and speeding up the process.66 Though it must be pointed out that most adopters use social workers and the Subordinate court to petition for an Adoption Order.67

64 D. Ford (1955), The Deprived Child And the Community (Constable Publishers, at 10.

65 66 67 Section 22 of The Adoption Act.

13 4.9 INTERNATIONAL ADOPTION International adoption is essentially a private legal matter between a private individual or couple who wish to adopt and a foreign Court, which operates under that country's laws and regulations. It is a type of adoption in which an individual or couple becomes the legal permanent parents of a child born in another country.68 Thousands of orphans are created every year especially in Africa, these being mainly AIDS orphans, other orphans arise as a result of deaths due to , a big killer in Africa. Other factors contributing to a mortality rate of the adult population are In general, prospective adoptive parents must meet the legal adoption requirements of their country of residence and those of the country in which the child was born. The laws of different countries vary in their willingness to allow international adoptions. Some countries expressly forbid it, while as some other countries, notably many African nations have extended residency requirements for adoptive parents.

In Zambia, section 4(5) of The Adoption Act requires that the infant must be resident in Zambia and the infant must have continually been in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order; and the applicant must have notified the Commissioner for Juvenile Welfare of his/her intention to adopt the infant. To qualify for international adoption, a special license has to be obtained.

Section 33(1) of the adoption Act reads as follows: The Commissioner may grant a license in the prescribed form, and subject to such conditions and restrictions as he may think fit, authorizing the care and possession of an infant for whose adoption arrangements have been made to be transferred to a person resident abroad. An example of a license being granted to a prospective adopter is as in the case of David Banda from Malawi who was adopted by Madonna. A license was granted to her to take the child with her to the UK and this was before the final hearing was heard to allow her to officially adopt the baby.

68 Ibid.

14 In South Africa, The Commissioner of Child Welfare is responsible to the Department of Justice and is required for inter-country adoptions The Department of Social Development is the central authority for all adoptions. Eligibility conditions for those living in South Africa are five years. Eligibility requirements beyond that change based on the circumstances of the case in question. For example, family members will be given preference over non-relatives. They will also approve the adoption application in cases in which one spouse is South African. It can take up to two years to complete South African adoption. 69

As a result of this restriction and delay in processing the applications, the number of children adopted under international adoption is quite low as the waiting period is too long. According to the United States of America Department page on Intercountry adoption, only seventeen children were adopted from there in 2005. 70 The number is extremely low considering the huge number of orphans' in that country. This is greatly influenced by the fact that South Africa's international adoption process has a five-year residency requirement. This period is too long and puts off would-be adopters.

4.10 NEGATIVE CONSEQUENCES: INTERNATIONAL ADOPTION

International adoption can also be challenging because of the lack of documentation that is often needed to prove that a child is a legal orphan, and child trafficking occurs much too frequently.71Child trafficking is a broad term that refers to buying, selling or illegal transportation of children. Child laundering is a more precise term that refers to the stealing of children who are then sold to adoptive parents as legitimate orphans.

69 http://www.southafrica.to/people/Babies/Adoption 70 Ibid. 71 Ibid.

15 Often the pretence is that the child's parents are dead when in fact the child's parents are still alive. This is what happened in Chad where some French national wanted to take the children out of that country under the pretence that they were orphans when in fact most of the children were not. Some of the children who were called orphans were not, but children stolen from homes, in other cases, the children were left at orphanages for temporary care or school for education. The people left in charge of the school sometimes sold the children. In some cases, the parents sold the children as they cannot afford to feed them nor send them to school.72 4.11 HAGUE CONFERENCE: PRIVATE INTERNATIONAL LAW

Recognizing some of the difficulties and challenges associated with international adoption, and to protect those involved from corruption and exploitation which sometimes accompanies it, the Hague Conference on Private International Law developed the Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption which was concluded on 29th May 1993 but came into force on 1st May 1995.

The preamble to the Convention on Protection of Children and Co-Operation in Respect of Inter-Country Adoption states: i. The States signatories to the present Convention, recognizing that the child, for the full and harmonious development of his/ her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his/ her family of origin.

72 The Post, Chad Magistrate Questions 16 Europeans over Abduction, Nov.5 2006; Sunday Mail, September 16, 2007.

16 ii. Recognizing that inter-country adoption may offer the advantage of a permanent family to a child for whom a suitable home cannot be found in his or her State of origin. iii. Intercountry adoption shall be made in the best interest of the child and concerning his or her fundamental right. To prevent the abduction, the sale of or trafficking in children, each state should take, as a matter of priority, appropriate measures to enable the child to remain in his or her family of origin. The main objectives of the Convention are as follows in Chapter 1. Article 1;

i. to establish safeguards to ensure that inter-country adoptions take place in the best interest of the child and with respect for his or her fundamental rights as recognized in international law; ii. to establish a system of co-operation amongst contracting states to ensure that those safeguards are respected and thereby prevent the abduction, sale of, or trafficking in children; iii. to secure the recognition in contracting states of adoptions made following the Convention. The Convention has been ratified by seventy (70) countries. Several more countries are signatories to the Convention and are at various stages in taking steps to achieve full ratification.73 The Convention goes further to pronounce what the requirements are for inter-country adoptions and these are as follows Under chapter 1 (4) (l)

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin: i. have established that the child is adoptable;

73 Ibid

17 ii. have determined, after possibilities for placement of the child within the State of origin have given due consideration, that inter-country adoption is in the child's best interest; iii. have ensured that;

a) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular, whether or not an adoption will result in termination of the legal relationship between the child and his or her family of origin. An example of the consent of adoption became a source of concern to the world as was in the case of Madonna, a pop star who wished to adopt a child from Malawi, David Banda. This adoption made international headlines because David's father had earlier told the press that he would not have consented to adoption if he had known it meant giving up his son. He initially thought Madonna would just educate and take care of him. He never thought that adoption meant that David would no longer be his son otherwise he would not have allowed the adoption.74 He, however, later told Time Magazine that he did not want to challenge the adoption since he was unable to look after the child, he would be spoiling his future by taking him back, b) such persons, institution and authorities have given their consent freely, in the required legal form, and expressed it in writing, c) the consent has not been induced by payment or compensation of any kind and has not been withdrawn. It has to be made very clear for those parents giving consent to having their children adopted what it means. They have to understand the fact that they cease to be the parent of that child in law and fact. If the adoption goes ahead without explaining to them properly they can ask for revocation of the adoption as in the

74 Sunday Times of Zambia, Malawi Father backs Madonna, at 4

18 case Michael Macgarry v. Eric Macgarry 75 The applicant sought an order for revocation of an adoption order made about her children on 9th January 1974 on the ground that the applicant did not at that time understand the effect of adoption. Further that the adoption order had created abnormal relationships in the family between the adoptive parents, the applicant and the adoptees. It was held: i. The applicant did not fully understand the effect of adoption. ii. The adoption order made on 9th January 1974 was revoked

The main thrust of the Convention is to try and make it as easy and straight forward for those who wish to adopt across borders and also to ensure that there is a law that will be used to bind the contracting States who are parties to it.

4.12 CONCLUSION In conclusion, one can say that it is clear from the above that there are still some 'grey areas' in the Act which have to be amended if the protection of children's rights is to be fully realized and given the modern international standards set out both in the United Nations Convention on the Rights of the Child 76 and the African Charter on the Rights and Welfare of the Child 77 .The analysis has shown that the definition of 'infant' under section 2 of the Act needs to be amended to remove the discriminatory aspect on account of the status of children who might have found themselves married at an early stage but have not managed to maintain that status.78 Children who get married at an early age before they attain twenty — one but are either later divorced or widowed are excluded from the definition of 'infant' under section 2 just because they were once married. This is against the principle of non-discrimination emphasized in Article 3 and Article 2

75 case No. 1999/HP/374 76 The Convention on the Rights of the Child, 1989. 77 African Charter on the Rights and Welfare of the Child, 1999. 78 Section 2 of the Adoption Act defines 'infant' as a person who has not attained the age of 21 but does not include a person who is or has been married.

19 of the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child respectively. Section 4 of the Adoption Act has also been found to be discriminatory on account of the status of the genuine male applicants who may want to adopt a female child.

It was emphasized that regard should be had to the best interest of the child when determining the qualification for adoption. Under section 5 dealing with the requirement for parental consent, it was emphasized that the 'best interest of the child' should be included as one the exceptions for dispensing with the requirement of parental consent. This is in line with Article 3 and 21 of the Convention on the Rights of the Child respectively. Section 17 of the Act which deals with the adoption of an illegitimate infant and the discontinuation of payment of maintenance cost for the child to the woman when she remarries has also been analyzed in the context of Article 3 and 21 of the CRC respectively. This section is lacking in as far as the best interest of the child principle is concerned and needs amendments. The Convention on the Rights of the Child requires that in all actions concerning children, whether administrative or otherwise,

20 the best interest of the child should be given paramount consideration.79 This principle is not emphasized in the Act but instead, the Act seems to have adopted the term 'welfare of the child'. This term is restrictive in the application as the satisfaction of the 'mere interest' of the child will suffice as being enough for the 'welfare of the child'

CHAPTER FIVE CONCLUSION AND RECOMMENDATIONS 79 Article 3 of the Convention on the Rights of the Child.

21 5.0 INTRODUCTION

This study analyzed the child adoption legislation in Zambia given the current legal protection guaranteed in various international instruments dealing with children. The study highlighted that the current state of the law relating to child adoption legislation does not fully protect the interest of the child as required by the international human rights instruments dealing with the rights of the child and as such, there is need for a review. The study now proceeds to give a summary of the chapters.

Chapter one gave a background to the study and explained the rationale behind the study. It highlighted the fact that though Zambia has a lot of legislation dealing with the child adoption of the child, there are still some lacunas in these laws and the need for a review can not be overemphasized. This review is necessary if the child interests are to be protected adequately and in line with the principles spelt out in international human rights instruments such as the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.

Chapter two was an analysis of the Adoption Act. It was discovered that Adoption legislation though being used, does not fully recognize and adequately protect the rights of children in its current context. This is because the various provisions protecting the rights of children are worded in broad terms offering the same protection for children and adults. It was therefore discovered that the best interest of the child principle is not adequately emphasized in the Adoption Act.

Chapter three demonstrated that the study adopted a text-based approach for data collection. The data collected still falls short of the provision ensuring the protection of children's rights as provided for in the Convention on the Rights of the Child and thus it is fraught with inconsistencies.

The general conclusion that has been drawn from chapter four is that the Adoption Act still falls short of the provision ensuring the protection of children's rights as

22 provided for in the Convention on the Rights of the Child and thus it is fraught with inconsistencies.

5.1 GENERAL CONCLUSION

In conclusion, one could say that the purpose study was to examine the provision of the Child adoption legislation process in Zambia. The study looked at the development of adoption in the country from the colonial period to date. In Zambia adoption is still seen as a foreign concept as the acceptable norm is that people should look after their kith and keen than to take strangers into their homes. It was and is still the accepted norm that a child, whether orphaned or not, was looked after by the family. It is a matter of prime importance that the family should always be free to make provisions for its children within its scope, that is, grandparents, uncles, aunts should be free to adopt their relatives but this is not the case in Zambia as most homes would like to keep the children as mere dependants in the home. An adoption is never an option.

Another phenomenon we cannot escape from is the shift from dependence on the extended family to a setting where the setting is predominant. This is as a result of the economic hardships. Seventy per-cent of Zambians live below the poverty line as already pointed out. They cannot afford to take any more orphans as they can bearly survive.

Various challenges have emerged in our society that has caused the breakdown of the extended family. The reality of today does not match up with the way things were before in the traditional setting. Unfortunately, some Zambians would want to cling to old ways when their traditional values have fallen, proof being the number 80of children living in institutions when they have extended families, some of whom can afford to look after them. One of our daily papers had a headline "orphans relatives threaten to beat up social workers.„100 It was unheard of in the past to have orphans

80 The Post, Monday, December 17, 2007

23 as there was always a relative, even if remotely related willing to take care of the orphans.

Zambians have a negative attitude towards adoption as we have seen from the literature. Even though of late there has been an increase in the number of Zambians adopting, it is still a drop in the ocean compared to the army of children in orphanages and on the streets. The government, the church, the NGO's and all interested groups with interest in the well being of the child need to widely sensitize the nation on the advantages of adoption. There is a need to make the public aware about adoption laws and the benefits that accrue when they adopt a child, as no one will ever claim him/her once the adoption is official and final. Every child needs to grow in a family that gives him/her love, care and support.

International adoption was also referred to in this paper and has worked quite well in some countries in giving a second chance to children in need of a home. The countries in the are at the forefront of adopting from poor countries. This should be encouraged to give our orphans a home and a family so long this is done legally to avoid cases of child trafficking. The government should be more proactive to ensure that these orphans are adopted by people who will give them a better life when they leave the orphanages.

If adoption has worked in some parts of the world, it should be able to work even in this country, but the will must be there from the government to put enabling law in place. Zambia needs the law on child adoption as the traditional way of absorbing the orphans into family homes has collapsed. I do not think the Adoption Act is irrelevant, the traditional way of dealing with orphans has failed to work in the modern era as people are more concerned with caring for their immediate families.

24 25 5.2 RECOMMENDATIONS The Adoption Act is little understood or known by most people in Zambia. This is because of the entrenchment of customary values that children are best looked after by their kith and kin. The government can do a lot more to ensure that this mindset on adoption is changed. This can be done by sensitizing the community on the number of orphans that are in orphanages. When the communities are made aware of these numbers, it might just make people realize the magnitude of the problem. The sensitisation can be done through the press, that is, in the print and electronic media.

i. It would also be a good idea if the government could consider printing the Act in the vernacular languages so that people can better understand what it is all about and dispel some of the myths they have heard. At the moment very few people allow what it entails to adopt a child as most people are of the view that only rich people can adopt, which is not the case. ii. The Ministry of Community Development and Social Services should initiate a review of laws relating to adoption and children in general. These laws have changed very little since they were brought in this country during the colonial period. The Adoption Act was first enacted in this country in 1956 and has remained almost the same to date with minor changes. iii. The change should conform to the needs of the current era. It should be drafted in such a way that it makes it easier for those who would like to adopt to do so, within the law, but without too much problem. An example is Ethiopia where the laws do not hinder adoption as we have seen from the statistics. More and more children are being adopted from there through international adoption than in any other African country. iv. The Department of Social Welfare should establish and maintain a database on all adoptions in the county. At the moment it is so difficult to get statistics on adoption in the country. The database should at least be clear on the number of domestic and international adoptions. The database should be made readily available to those interested as this will give the community an idea of how grave the situation is.

26 v. The Ministry should provide and facilitate training in professional practice to the social workers. Adoption is a very sensitive issue and it needs to be handled professionally and efficiently. Looking at their records it takes unnecessarily long to complete the process of adoption which can be quite taxing emotionally on the adopter and the adoptee. vi. The Ministry needs to encourage good traditional and cultural values and practices of the extended families and communities caring for orphans. The government can come up with a deliberate policy to support all those who are looking after orphans. The support could be in monetary terms or in form of food provisions to the families which they could get every month. In this case, they will need to keep a comprehensible database on the number of orphans and the details of those who are taking care of them to avoid abuse of the programme. vii. There is a need to strengthen the laws that will compel the social worker from the Department of Social Welfare to supervise relationships between the caregiver of the child to ensure that the child is well taken care of. The social worker should be able to intervene in the extended family for the orphan's sake should need to arise.

27 Since it takes a long time to change a mindset, it is advisable to let the adoption law to continue being in existence, we need an order for those who want to adopt. As for those who do not want to consider adoption as an alternative, these can be sensitized through educational campaigns which should be vigorously put in place. Workshops, seminar and church meetings can be arranged for various sectors. If this was pursued vigorously, we would see a change of the mindset.

Finally, all laws concerning the welfare of children must be put in one Act. This way there will be certainty and the law will be easier to identify than the current piecemeal legislation. There is no single statute that deals with the totality of child rights in Zambia.

Zambian law does not have a uniform definition of who is a child. For example, under article 24(2) of the Constitution, the young person means any person under the age of fifteen years. Under section 33 of the Marriage Act, the minimum age for marriage is fixed at sixteen years unless a judge gives consent for a person who is below that age to get married. Section 52 of the Adoption Act defines an infant as a person who has not attained the age of twenty-one years but does not include a person who has been married. The Employment of Young Persons and Children Act defines a child as a person under the age of fourteen years.

28 BIBLIOGRAPHY

Albert F Beyond the Best Interest of the Child (Collier (1973), Macmillan Publication)

Anyangwe C (2005) An Outline of the Study of Jurisprudence (Unza Press)

Bromley, P.M Family Law, (Butterworths) (1988)

Barbara T. Adoption: A Second Chance (Open Books) (1977) Elias, T.O. (1972) The Nature of African Customary Law, (Martes University Press) Gandhi P.R. Blackstone's International Human Rights Documents (2001) (Universal Law Publishing Co.Pvt. Ltd)

Munalula M.M (2004) Legal Process, Zambian Cases, Legislation and Commentaries. (UNZA Press)

Mushota L (2005). Family Law in Zambia: Cases and Materials ( Press)

LAW ARTICLES Anyangwe, C The Whittling Away of Indigenous Legal Judicial Systems, (1988) Zambia Law Journal.

Gaps in Law and Policy in Implementation of Convention Chanda, A (2000) on the Rights of the Child in Zambia. Zambia Law Journal, (2000) Vol.32

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