Adoption of Children through a Human Rights Lens: A Comparision between Tanzania, Kenya and South Africa

Adoption of Children through a Human Rights Lens: A Comparision between Tanzania, Kenya and South Africa

¹Stella Nyana Ahanor., ²Jackson Marwa Oringa

¹lecturer at Catholic University of Mbeya, Tanzania

²Assistant Lecturer in law at Catholic University of Mbeya, Tanzania.

DOI: https://dx.doi.org/10.47772/IJRISS.2025.909000021

Received: 19 August 2025; Accepted: 26 August 2025; Published: 26 September 2025

ABSTRACT

This paper presents a comparative legal analysis of child adoption regulations in Tanzania, Kenya, and South Africa. Through a qualitative comparative methodology, the study examines the extent to which each country’s adoption laws comply with and implement fundamental human rights principles throughout the adoption process.

The findings indicate that in certain instances, the adoption laws in Kenya and Tanzania do not fully uphold essential human rights tenets, such as non-discrimination, freedom of expression, and the principle of equality. In contrast to South Africa’s more progressive legal framework, the laws in Kenya and Tanzania demonstrate discriminatory approaches based on various factors, including the age of both the adoptive child and the prospective parent, the child’s opinion, the gender of the child to be adopted, the gender of the prospective adoptive parent, parental consent for the adoption, and the marital status of adoptive parents.

In light of these findings, this paper strongly advocates for the reform of adoption laws in Kenya and Tanzania to ensure better alignment with established international human rights principles.

Keywords: Adoption of Children, Human Rights, Child Welfare, Best Interest of the Child, consent, equality, discrimination, age and adoption

INTRODUCTION

Adoption is one of the measures that states take to protect children deprived of a family environment. Adoption does not only involve the transfer of parental rights from the biological parent to the adoptive parents but is rather a transition that is deeply embedded in human rights principles that are hinged on child protection. International instruments such as the United Nations Convention on the Rights of the Child,[1] and the African Charter on the Rights and Welfare of the Child,[2] emphasize that adoption must serve the best interests of the child, ensuring their right to protection, identity, and family life. The UNCRC under Article 21 outlines that States must ensure that the adoption process is authorized by competent authorities and conducted with all necessary legal safeguards. Similarly, the ACRWC under Article 24(1) provides that inter-country adoption should be a last resort and subject to scrutiny to prevent abuse or trafficking.

In Tanzania, adoption is governed by the Law of the Child Act.[3] However, gaps remain in the Tanzanian law with respect to a number of issues including the protection of the right to non-discrimination and the principle of equality. Adoptions in Kenya which are guided by the Children Act,[4] which overhauled the 2001 is still faced with challenges on alignment of its Child’s law to human rights principles. The South African child adoption law, Children’s Act,[5] has made efforts to root out discriminatory provisions of the law to incorporate a holistic law that incorporates human rights as the foundation of the law.

This paper, therefore, draws experience from the South African adoption law and ultimately critically examines the adoption laws and practices in Tanzania, Kenya, and South Africa through a human rights lens. It seeks to identify areas of convergence and divergence, assess compliance with international norms, and recommend reforms aimed at promoting a human right centred adoption regime in Africa.

The Concept of Adoption of Children and the Principles Governing it

Defining Child Adoption

According to Thanikachalam, “child adoption is a legal act through which rights and responsibilities of a child is permanently transferred from birth parents to adoptive parent”.[6] In the case of Naude and Another v Fraser, the court established that adoption results in the automatic termination of biological parental rights and responsibilities, thereby creating a new legal relationship between the adopted child and the adoptive parents. This legal framework recognizes the adopted child as a legitimate descendant of the adoptive parents, affording them the same rights and status as biological children within the family unit. The implications of this relationship encompass both the emotional and legal dimensions of parenthood, effectively repositioning the child’s identity within the context of the adoptive family.[7] Pursuant to section 64(1)(b) of the Tanzanian Law of the Child, the statute mandates that adoptive parents assume all parental responsibilities for the child. This includes obligations related to maintenance, custody, and education, treating the child with the same legal and moral duties as if the child were a biological offspring.[8] The objective of adoption, as outlined in section 229 of the South African Children’s Act, is to facilitate the placement of a child in a secure environment that promotes both the protection and the holistic development of the child. This legal framework underscores the importance of ensuring that the adoptive setting provides not only physical safety but also emotional and psychological support for the child’s growth and well-being.[9]

Principles Governing Adoption of Children

The Principle of the Best Interest of the Child

Article 3 of the Convention on the Rights of the Child stipulates that the paramount consideration in all decisions affecting children must be the principle of the best interest of the child. This foundational guideline serves as a critical criterion for evaluating and determining actions and policies pertaining to children’s welfare.[10] The principle is enshrined under South African Children’s Act,[11] The Tanzanian Law of the Child Act,[12] and the Kenyan Children Act.[13] The Principal mandates that any decision made regarding the child must consider its holistic effects on their well-being. Furthermore, if such a decision is to be enforced, it must align with the rights outlined in the Convention on the Rights of the Child (CRC).[14]

 In the context of child adoption, the principle of the best interest of the child serves as the fundamental criterion. Consequently, adoption proceedings must be sanctioned exclusively by an authorized body, in accordance with the applicable legal framework governing child adoption.[15] In adoption cases, particularly those involving inter-country adoption, the principle of the best interest of the child plays a crucial role. It is essential that inter-country adoption only occurs when there is clear evidence demonstrating that the child is unable to find an adoptive family within their country of origin. This approach ensures that the welfare of the child remains the top priority in the adoption process.[16]

The United Nations General Comment 14 delineates the principle of the best interest of the child into three distinct categories. Firstly, it addresses the substantive right, emphasizing that the best interest of the child must be a primary consideration in all decision-making processes affecting the child.

Secondly, it introduces the interpretative legal principle, which stipulates that in instances where legislation pertaining to children allows for multiple interpretations, the interpretation favoured must align with and promote the best interests of the child. Lastly, the rule of procedure mandates that when decisions involving children are being undertaken, procedural safeguards must be implemented to ensure that the best interest of the child is upheld throughout the process.[17] In accordance with established procedural safeguards, the General Comment asserts that “States are required to establish transparent and objective frameworks for decision-making by legislators, judges, or administrative bodies, particularly in matters that have a direct impact on children.”[18]

However, it must be noted that the principle of the best interest of the child cannot be applied in isolation of prevailing legislation or cannot override existing legislation.[19]

According to the South African stance, it is in the best interest of the child that adoption processes are determined without delay. This was affirmed in the Constitutional Court of South Africa where the court held that the delay in finalizing adoption proceedings infringed upon the constitutional rights of the child to family care, protection, and development.[20] The case marked a significant development in South African adoption jurisprudence, reinforcing the idea that legal procedures should never compromise a child’s right to grow up in a stable and loving environment.

The Principle of Non- Discrimination

The right to non-discrimination is enshrined in the International Covenant on Civil and Political Rights. The Convention explicitly prohibits discrimination on the grounds of race, sex, colour, nationality, political opinion, among others.[21] The non-discrimination principle is echoed in the Constitutions of both South Africa and Tanzania. Under the Tanzanian Constitution, the principle is provided under Article 13,[22] while the same principle appears under Article 9 under the South African Constitution.[23]

The principle of non-discrimination in adoption cases aims to ensure that vulnerable children have an equal opportunity to be adopted and enjoy the same rights as all other children, regardless of their adoption status or disability.[24]

In the case of A.H and Others v Russia, the European Court of Human Rights addressed the issue of discrimination in the adoption process. The case involved several United States (US) citizens who were nearing the completion of their adoption proceedings for Russian children when the Russian government abruptly terminated these processes. The government’s rationale was based on a policy that prohibited US citizens from adopting Russian children. In response to this action, the petitioners filed a complaint alleging discrimination against both prospective adoptive parents and the children involved. The Court concluded that the actions of the Russian government constituted a violation of Article 14 of the European Convention on Human Rights, which prohibits discrimination. Importantly, the Court found this violation applied specifically to the adoptive parents and did not extend to the children in question.[25]

The Views of the Child

In accordance with Article 4(2) of the African Charter on the Rights and Welfare of the Child, one key indicator of the principle of the best interests of the child is the opportunity for the child to express their views in administrative and judicial proceedings regarding the matter at hand. It is essential that the relevant authority takes the child’s views into consideration. The Tanzanian Law of the Child Act stipulates that a court may grant adoption solely if it is determined to be in the child’s best interest. Additionally, the court must consider the child’s wishes, provided that the child has reached an age at which he or she is capable of forming an opinion.[26] The Committee of the Convention on the Rights of the Child (CRC) has clarified that the phrase “if the child is capable of forming his or her own views” should not be interpreted as a restriction on the child’s right to freedom of expression. Instead, it emphasizes the responsibility of the state to evaluate and determine the child’s ability to develop an autonomous opinion.[27]

The South African Children’s Act highlights the importance of incorporating the views of the child, as this empowers children to actively participate in decision-making processes that pertain to their lives. By recognizing the child’s perspective, the law promotes their involvement and ensures that their interests are taken into account in relevant determinations.[28] According to the Convention on the Rights of the Child (CRC), the involvement of children in decision-making processes should be an ongoing endeavour. The CRC also emphasizes that “Children’s participation allows them to regain control over their lives, aids in their rehabilitation, fosters organizational skills, and enhances their sense of identity.”[29] Processes that incorporate child participation must adhere to principles of transparency, voluntariness, respect, child-friendliness, inclusivity, safety, and informativeness. Specifically, the information provided to children should be appropriately tailored, ensuring relevance and accessibility, enabling them to articulately express their perspectives.[30]

Under the Tanzanian law, to give an opinion, the child must be at least be fourteen years.[31] Under the South African Children’s Act, a child is entitled to provide consent for their adoption upon reaching the age of ten. Furthermore, a child below this age may also give consent if they are able to comprehend the ramifications associated with their agreement to the adoption process.[32]

The Right to Survival, Development and Protection

This is provided for under African Children’s Charter and it hinges on the inherent right to life and state duty to ensure child survival, development and protection.[33] The rights to survival, development, and protection are fundamentally applicable to the adoption of children. This includes the imperative to safeguard children from violence. In this context, the Convention on the Rights of the Child (CRC) stipulates that states must implement legislative, administrative, social, and educational measures to shield children from physical and mental harm, neglect, sexual abuse, and exploitation, among other dangers.[34] In instances where a child has experienced physical, emotional, or psychological harm, the courts have the mandate to rescind adoption orders to safeguard the child’s welfare.

Critical Analysis of Adoption Laws in Tanzania, Kenya and Uganda

Consent to the Adoption: A Human Rights Glance

Consent to adoption is a fundamental legal and ethical requirement that reflects respect for the rights and autonomy of biological parents and guardians, particularly the mother. From a human rights perspective, obtaining free, prior, and informed consent is essential in ensuring that adoption processes do not violate the dignity and rights of those involved, especially vulnerable individuals such as young or impoverished parents. The consent process is also closely tied to the child’s best interests, which should be central in all adoption proceedings.[35] Furthermore states, must emphasizes the importance of proper consent mechanisms in adoption cases, particularly ensuring that consent is not extracted under duress or misinformation.[36]

From a human rights lens, obtaining consent should be more than a procedural formality it must be grounded in education, legal support, and psychological readiness. The requirement for consent, therefore, acts as a protective barrier against coercive adoption practices, such as child trafficking and illegal adoptions, and affirms the individual rights of those giving consent. However, in the absence of legal aid and proper procedural checks, the requirement for consent can be easily manipulated in favour of wealthier or more powerful adoptive parties.[37]

Parental Consent to Adoption

The Convention on the Rights of the Child (CRC) stipulates that informed consent must be obtained in matters pertaining to adoption cases.[38] The Tanzanian Law of the Child Act stipulates that, with respect to adoption proceedings, the child’s parent or legal guardian must provide consent for the adoption to proceed.[39] This requirement may be waived in circumstances where the child’s parent, guardian, or relative has either neglected or persistently mistreated the child, or where the parent, guardian, or relative cannot be located.[40]

In accordance with the South African Children’s Act, the consent required for adoption must be obtained from each parent of the child, irrespective of marital status, as well as from the guardian and the child.[41] The  South African law provides consent to adoption must be given in writing and must be signed in the presence of a presiding officer.[42] Notably, the Act gives the biological mother the right to withdraw consent within 60 days, a unique protection that reinforces human rights principles such as autonomy and the right to change one’s mind. In AD v. DW and Others [2007] ZACC 27, the Constitutional Court recognized the vital role of consent in maintaining the dignity of biological parents, holding that adoption without valid consent amounted to a breach of constitutional rights.[43] The case affirmed that consent must not only be legal but must also respect the individual’s mental capacity, psychological state, and social context.

Under the same law, consent may only be waived in specific circumstances, including when a child has been abandoned, when the whereabouts of the parent are unknown, or when the parent’s identity is not established. Additionally, consent can be dispensed with if the child has experienced deliberate neglect or abuse by the parent or guardian, if the parent or guardian is unable to provide consent due to mental illness, if they have wilfully failed to fulfil their parental responsibilities for the past twelve months, or if the parent or guardian has not responded to an adoption notice within thirty days, among other situations.[44]

In Kenya, the Children Act,[45]  clearly stipulates that written consent must be obtained from the child’s biological parents or guardians before adoption. However, it provides exceptions where a parent is dead, of unsound mind, or has abandoned the child. The High Court in In the Matter of Baby T emphasized that consent must be obtained freely and without coercion. The Court held that the adoption order was valid only because all requisite consents were legally secured and the social inquiry confirmed the absence of coercion or inducement.[46]

However, the Kenya Children Act allows for the waiver of consent in instances where couples are divorced or have permanently separated. This provision is applicable in situations where the applicant is a parent of the child in question.[47]   The legal frameworks governing adoption in Tanzania and South Africa do not impose restrictions regarding parental consent based on marital status. In both jurisdictions, the consent of both biological parents is required for the adoption process to proceed, irrespective of their marital relationship.[48] The Kenyan adoption regulations appear to discriminate against separated or divorced couples in comparison to those who are married. In cases involving separated or divorced parents, both must be given the opportunity to participate in the adoption process, unless specific circumstances apply, such as abandonment, neglect, or incapacity to locate a parent.

However, Kenyan courts have demonstrated a commitment to ensuring that estranged couples can voice their consent regarding adoption. A notable example is the case of re ASJ (Minor), where the biological parents were divorced. In this instance, the child’s mother, the first applicant, sought to adopt her child jointly with her new husband. The court proceeded to obtain the oral consent of the biological father, despite his divorce from the child’s mother.[49]

Consent of the Child

In Tanzania, a social welfare officer is tasked with directly engaging the child to understand their viewpoint on consenting to adoption. The officer must provide a comprehensive explanation of the adoption process, specifically addressing its implications in a language that the child can easily comprehend. This procedure is crucial for protecting the child’s rights and ensuring that consent is given in an informed manner, in accordance with established welfare regulations.[50] According to the law, only individuals who are 14 years of age and older possess the legal capacity to express their views regarding their desire for adoption. This provision emphasizes the importance of considering the opinions of minors within this specific age group in the adoption process In Kenya, the law allows a child who is at least ten years of age to provide consent for adoption. This signifies the recognition of the child’s ability to engage in decision-making processes regarding their own well-being and emphasizes the significance of incorporating the child’s perspective in the adoption framework.[51]

In the context of the situation in Tanzania, the restrictions imposed under Section 59 of the relevant legislation regarding a child’s consent to adoption are both discriminatory and not aligned with the best interests of the child. Under the Supplement Law of the Child, specifically Regulation 11 (6-8), it is stipulated that a social worker must elucidate the adoption process to the child in a language that the child comprehends. Consequently, it is essential that, once the child has grasped the explanation provided by the social welfare officer regarding their adoption, the child should be given the opportunity to express their wishes concerning the adoption, irrespective of whether they have reached the age of fourteen. As previously mentioned, South African Children’s Law permits even children below the age of ten to articulate their views regarding the adoption process.[52] In the Kenyan case of Re Baby JK aka JKM, which pertained to the adoption of a child who had reached the age of ten, the court established that the child’s opinion regarding the adoption was duly considered. In addition to the submission of the child’s written consent to the court, the judicial authority conducted an interview with the child via an online platform. During this interview, the child expressed satisfaction with living with the applicant, whom he referred to as “mum.”[53]

In contrast, Tanzanian legislation stipulates that only individuals who are fourteen years of age and older may provide consent for their adoption. This provision hinders the principles of freedom of expression, equality, and non-discrimination. The International Covenant on Civil and Political Rights (ICCPR) unequivocally affirms the right to freedom of expression, alongside the principles of equality and the right to be free from discrimination.[54] The Committee on the Rights of the Child (CRC) discourages member states from establishing age limits on the minimum age at which a child can form an opinion. This position is supported by research indicating that children are capable of forming opinions at a very young age, even if they lack the verbal skills to articulate their thoughts. Furthermore, the Committee asserts that children can communicate their opinions through non-verbal cues, highlighting their ability to express themselves beyond mere spoken language.[55]

The African Charter on the rights and welfare of the Child clearly state that a child who is able to express himself or herself should be given the opportunity to express his or her opinion.[56] In this same regard, the Declaration on the Principles on the Right to Expression in Africa states that states should recognise the “evolving capacities of children” as far as expression is concerned and should take steps to guarantee that children are able to express themselves.[57] Under the principles, the right to freedom of expression can only be limited under three specific circumstances including when the limitation is prescribed by law, when the limitation serves a legitimate aim and lastly when the limitation is justifiable and proportionate.[58]

It is undeniable that the child’s right to give his or her opinion on whether or not he should be adopted is prescribed by law restricting only children of fourteen years and above to give their opinion.[59] The big issue is whether such a limitation serves a legitimate purpose. According to the African Principles on the right to Freedom of Expression, a legitimate purpose is determined by considering whether such a limitation is for the purpose of protecting the reputation of others or for the purpose of national security.[60] The Tanzanian law on adoption that denies children under fourteen years from giving consent to adoption does not clearly serve a legitimate purpose.

The UN Committee on the Rights of the Child has also stated in its General Comment that the informed a child is and the more experienced a child is in a certain matter gives the child more ability to express himself or herself on the issue.[61] The committee further states that when determining a child’s best interest due regard should be given to each child’s unique circumstances including among other things the age, sex, maturity, experience, and the child’s  disability if any. Although these elements holistically play significant roles in assessing a child’s interest, not all of them may be relevant on a case by case basis.[62] In this regard, states should equally afford children with disabilities means of communicating their views through various modes of communication suitable for them to express their views.[63]  The Kenyan Children Act has put the needs of children with disability at the forefront by providing that when a child who is ten years of age has to consent to his or her adoption but the child suffers from a disability, and the disability Impairs the child’s ability to give an independent consent to adoption, an intermediary should be given to help the child acquire a written consent.[64]

In the South African case of   ​the principle of obtaining consent for the adoption of a child is a cornerstone of the legal framework governing adoption. The Children’s Act 38 of 2005 outlines specific provisions regarding whose consent is necessary and under what circumstances consent may be dispensed with. It mandates that consent must be obtained from each parent of the child, regardless of their marital status.[65] However, in situations where consent can be waived, such as when a parent has abandoned the child or consistently failed to fulfil parental responsibilities over the preceding year.[66] This legal structure aims to balance the rights of biological parents with the best interests of the child.

Furthermore, the importance of proper consent procedures was underscored, where the Western Cape High Court examined the validity of consent in adoption proceedings. The court emphasized that consent must be informed and voluntary, highlighting that any coercion or misinformation could render the adoption invalid. The judgment reinforced that adherence to statutory requirements is essential to protect the rights of all parties involved, particularly the child.[67] The applicants challenged the Department of Social Development’s refusal to recommend adoption placements despite the biological mothers’ informed consent. The Gauteng Division of the High Court ruled that the Department’s conduct was unconstitutional, infringing upon the rights to dignity and privacy of the biological mothers, as well as the children’s best interests.[68]

Adoption and Gender of the Applicant

Section 56 (2) of the Tanzanian children’s law states that a male applicant can only have his adoption approved if the application is in respect of a male child specifically his son. Under very special circumstances, a male applicant can adopt a female child.[69] In relation to the Kenyan Children Act, a sole male applicant does not qualify to adopt unless the child in question is a blood relative.[70]  This was substantiated in the case of Re JNG where a sole male applicant sought to adopt a 17-year-old female child, a daughter to his late sister. The court in approving the application stated that a sole male applicated is permitted under the law to adopt a female who is his relative.[71]Under both the Tanzanian and Kenyan laws, a female applicant is not subjected to similar restrictions.[72]

In contrast, the South African Children’s Act does not impose gender restrictions when it comes to adoption. Under the Act, a child can be adopted by unmarried, divorced, and widowed applicants.[73]

The reason why men are only allowed their sons is hinged upon the principle of the best interest of the child. It is argued that restrictions on men not to adopt female children is basically to protect female children from potential sexual abuse, risk of girls being trafficked and turned into sexual workers or domestic workers by male adoptive parents.[74] It is equally reasoned that only under very circumstances can a female sexually abuse an adopted male child.[75] These restrictions are impliedly imposed in the spirit of CRC which states that States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.[76]

According to statistics from United Nations International Children’s Emergency Fund (UNICEF), 120 million girls under the age of twenty experience forced sex or other forms of sexual abuse.[77] The statistics in one way or another quantify the argument that female children when adopted by single men are exposed to risks of sexual violence or other forms of sexual exploitation. However, according to more statistics, between 5% to 20% of child sexual abuse are perpetrated by females.[78]

Tanzania statistics on child sexual abuse conducted 2017 and 2021 indicates that within the said period, 70,997 cases of violence against children were reported but 80% of the cases were on sexual abuse. According to the reports, 78% of the cases on sexual abuse regarded male children who had sodomised.[79]

Although the Tanzanian statistics do not indicate whether women were part of the perpetrators of child sexual abuse, it goes to show both male and female children deserve equal protection as far as sexual violence is concerned. Even if the child sexual abuse involving female perpetrators are minimal, all children regardless of their gender deserve equal protection by the law.

Therefore, to grant female adoptive parents the possibility to adopt both female and male children based on the assumption that they are less likely to sexual abuse or exploit male children compared to male adoptive parents would be legally wrong in this era.

When Age is not Just a Number

The Law on the Age of the Prospective Adoptive Parent

Under the Tanzanian adoption laws specifically the Adoption of a Child Regulations of 2011, it is clearly stated that there is a rebuttable presumption that an applicant above fifty (50) years is unsuitable to adopt a child especially a child below the age of ten years because the adoption would not be in the best interest of the child.[80] In Kenya, the age restriction is a bit higher than the Tanzanian case whereby under the Kenyan law, adoption cannot be approved for an applicant who is above sixty-five years old.[81] However, the Kenyan courts have applied the law on age restriction on a case by case basis. In the case of re Baby EG alias MWI, the age of the prospective adoptive parents was 67 and 50 years. Court in assessing the suitability of first applicant aged 67 years considered the fact the applicants had in previous years adopted a child and had continued the raise the child well. In this respect, the court decided to dispense with the fact that the first applicant.[82] The court further held among other things that rejecting the adoption application is not in the best interest of the child.[83]

Case law shows in Tanzania courts on a number of occasions courts approve adoption applications of applicants over fifty years. In the E.S.M case, the Court granted the adoption orders when the applicant was fifty-two years and the child was seven years.[84] Again, in the case of Eva Albine Mbinde v. Jackson and Jackline, the court did not question the age of the prospective adoptive parent who was 50 years and had applied to adopt 5-year-old twins.[85]

Since case law in Tanzania suggests that prospective adoptive parents who are over 50 years old are allowed to adopt children even below ten years, it would be proper that the law that restricts the age of prospective adoptive parents be amended to remove restrictions on the age of prospective adoptive parents. The African Union (AU) Protocol on the Rights of Older People (PROP) prohibits discrimination against older persons based on cultural and social stereotypes that marginalise the elderly.[86]

Again, according to the Tanzanian Law, the adoptive parent must be at least twenty-five years and must be at least twenty-one years older than the child.[87] The South African Law clearly states impliedly that the minimum age for an adoptive parent is 18 years.[88] According to this law, the most important thing is that the prospective adoptive parent has been assessed and found to be fit and proper to take on parental responsibilities and is able to make sure that the child fully enjoys his or her rights.[89]

The Tanzanian age restriction for adoptive parents discriminates against prospective adoptive parents who actual might be suitable adoptive parents but have not yet reached twenty-five years or is not twenty-one years older than the child. It should be noted that it is possible that a twenty-year-old orphan would like to legally adopt his or her siblings and has the capacity to carry out responsibilities attached to looking after the siblings. These possibilities should be considered when drafting adoption laws.

The Age of the Child

Under the Kenyan Children Act, it is specifically stated that a child can only be legible for adoption if he or she is six weeks or more and has been declared adoptable.[90] These restrictions have not been adopted by South or Tanzania where there is no restriction on the child’s age as far as adoption is concerned. The European Convention on Adoption of Children also sets the minimum age for a child to be adopted as six weeks. The logic behind this is that the six weeks are needed by the mother of the child to recover from effects of child bearing before she consents for her child to be adopted.[91]

The logic between six weeks restriction is in the best interest of the child since it allows the mother of the child to be in the best mental condition before making fundamental decision concerning her child. This could be considered by Tanzania and South Africa as it is in the spirit of the best interest of the child.

Nature of Marriage and Adoption

Section 58(3) of the Law of the Child states that an adoption order shall not be made in favour of a person who is in a civil relationship or marriage.[92] The South African Law does not have any restrictions on the nature of marriage to qualify to adopt. The Tanzanian law discriminates against couples who have gone through civil marriages compared to those who have celebrated their marriages religiously or traditionally.

It is noteworthy that the Law of Marriage Act of Tanzania recognises civil marriages as one of the ways of contracting marriage in Tanzania.[93] If this type of marriage is recognised it would suffice to say that couples who have contracted their marriage in a civil ceremony should be treated equally as far as adoption is concerned.

The way the Tanzanian law stands as of now points to a discrimination between couples who have contracted their marriage in a religious ceremony and those who have contracted their marriage in a civil ceremony. The Tanzania law also does not impose restrictions on adoption by couples whose marriages were contracted in a tradition form.

Kenya’s situation is far much complex than South Africa’s and Tanzania’s. The Kenyan Children’s Law explicitly states that if the applicants are not married to each other, they cannot adopt a child jointly.[94] In contrast, the situation in South Africa is quite different. Under the South African Children’s Act, couples are allowed to adopt regardless of whether they are formally married or are living together as partners.[95]

According to the case of Schwizgebel v. Switzerland, the European Court of Human Rights stated that “difference of treatment is discriminatory …if it has no objective or reasonable justification. The existence of such justification must be assessed in relation to the aim and effects of the measure in question, having regard to the principles which normally prevail in democratic societies.”[96] In assessing the issue of justification for the previous court denying adoption based on the age of the applicant, the Court argued that as far as adoption cases are concerned, denial of an adoption application is for the sake of the welfare of the child.[97] Therefore where differential treatment is not geared towards the welfare of the child, such treatment is unjust. In this regard, there is no justification for dismissing an adoption application based on the adoptive parent’s marital status as a marital status has no impact on the welfare of the child.

Inter- Country Adoptions and Human Rights

According to the Kenya adoption law, adoption by non-citizens is only limited to joint applicants who are spouses.[98] The other condition for interstate adoption is that is that all efforts to trace the parents or relatives of the child to unify them has failed. Again, an inter-state adoption cannot be successful if the local arrangements to have the child adopted within Kenya have failed.[99] This requirement cuts across all three states including Kenya and South Africa thereby necessitating that all efforts to have the child adopted locally have been exhausted but have been futile.[100]This is in line with the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of which Kenya is a signatory. Under the Convention, inter-country adoptions can only be processed if local arrangements for the adoption have failed.[101]

According to Article 1 of the Hague Convention on Inter-Country Adoption, all inter-country adoptions must be in the best interest of the child. It is for this reason that the Convention requires that avenues for the child to be adopted locally be pursued and have failed. Prospective adoptive parents must also be scrutinised before they are allowed to be adopted.[102]

Tanzania’s adoption law is not only restrictive when it comes to inter-country adoptions but is also impracticable. According to the law, a prospective adoptive parent must have been resident in the country for at least three consecutive years and must have fostered the child for at least three months.[103] According to the Kenyan adoption law, a child qualifies to be adopted if he or she has been in the care and control of the applicant for at least three consecutive months.[104] The Kenyan law also specifically states that the prospective parents in relation to foreign adoption are not resident in Kenya.[105] The situation in South Africa is not different from the Kenyan situation when it comes to the requirement of residency. The South African law is silent on the residency requirement meaning that proof of residency is not a requirement for inter-country adoption in South Africa.[106]

In one way or another, one of the justifications for Tanzania’s strict approach to inter-country child adoption is based on the principle of the best interest of the child. These include safeguarding the child from harm after they have been adopted. This is in line with the AU framework on inter-country child adoption where it has been stated under the Charter that states must emphasize the necessity of prioritizing domestic solutions over inter-country adoption and ensure that adoption does not lead to exploitation or trafficking.[107] However, such restrictions should take into consideration the principle of the best interest of the child specifically in the event that local arrangements for adoption have failed. Where local arrangements for adoption have failed, inter-country adoptions should not be dubbed with procedural technicalities.

CONCLUSION

The findings show that the on the issue of parental consent to adoption, the South African and Tanzanian laws on child adoption give parents the opportunity to give their consent to the adoption unless a parent has neglected the child or has abandoned the child among other things. The Kenyan Law on the other hand allows for a waiver of parental consent where the parents are divorced or permanently separated something that is not only discriminatory but might also not be in the best interest of the child. Again, when it comes to a child’s consent to the adoption, the Kenyan law allows for children who are ten years and above to consent to their adoption while the South African law allows even for children below ten years to consent to their adoption. The situation in Tanzania is more complicated as only children above fourteen years can consent to their own adoption something that is contrary to the sentiments of the Committee on the Rights of the Child.

Discriminatory practices in child adoption have also been noted in the gender of the prospective adoptive parent where in Tanzania and Kenya, a male applicant cannot adopt a female child unless under special circumstances and in Kenya again, a male applicant cannot adopt a male child unless the child is a relative. In both countries, female applicants are not subject to such restrictions. South African presents a more human rights- based approach where there are no restrictions on the gender of the applicant or child.

Kenya and Tanzania also impose restrictions on the age of the prospective adoptive parents where in Kenya the prospective adoptive parent should not be more than sixty-five years and in Tanzania should not be more than fifty years. Although in most cases these restrictions have not been applied by the courts, there is a need to amend the said law. On the age of the child, Kenya law restricts the adoption of a child who is less than six weeks. These restrictions have not been adopted by South Africa and Tanzania.

There are also restrictions based on the nature of marriage where in Tanzania spouses married through a civil ceremony are prohibited from adopting children and in Kenya if joint applicants are not married to each other the application is dismissed. These restrictions are not envisaged under the south African child adoption law and are not in line with human rights principles on non-discrimination and equality.

Finally, although the three states have made efforts in embedding human rights principles in their international child adoption processes, there is need for Tanzania to revise its law on international adoption specifically on the residency requirement which is more or less impracticable

FOOTNOTE

[1] United Nations Convention on the Rights of the Child (UNCRC), 1989

[2] African Charter on the Rights and Welfare of the Child (ACRWC), 1990.

[3] Law of the Child Act, 2009. (Tanzania).

[4] Children Act No. 29 R.E of 2022. (Kenya).

[5] Children’s Act No. 38 of 2005. (South Africa).

[6] CD Thanikachalam Handbook on Child Adoption in India (2018) 15.

[7] Naude and Another v Fraser (150/97) [1998] ZASCA 56.

[8] Act 13 of 2019.

[9] Act 38 of 2005.

[10] International Convention on the Rights of the Child (CRC).

[11] Act 38 of 2005 sec 2(b)(iv)

[12] Act 13 of 2029 sect 4(2)

[13] Act 29 of 2022 sec 4(3)

[14] R Ruggerio ‘Article 3: The Best Interest of the Child’ in Z Vaghri & Others (eds) Monitoring State Compliance with the UN Convention on the Rights of the Child: An Analysis of Attributes (2022) 22.

[15] Article 21 (a) CRC.

[16] Article 21 (b) CRC.

[17] General Comment no. 14 (2013), Committee on the Rights of the Child 4.

[18] Ibid, p.18.

[19] GT v CT [2015] 3 ALL SA 631

[20] Ibid, para 18.

[21] Article 2 (1) of the International Covenant on Civil and Political Rights (ICCPR)

[22] Article 13 (4 & 5) of the United Republic of Tanzania (CURT)

[23] Article 9 (3) of the Constitution of South Africa

[24] The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention: Guide to Good Practice (2008) 31.

[25] A.H and Others v Russia ECHR (17 January 2017).

[26] of the Law of the Child Act (LCA) Sec 59 (1)(b).

[27] CRC General Comment 12 (2009): The Right of the Child to be Heard 9.

[28] of Act 38 of 2005 sec 10.

[29] CRC General Comment 12 (2009): The Right of the Child to be Heard

Paras 13 & 125

[30] CRC General Comment 12 (2009): The Right of the Child to be Heard 9.

Para 134

[31] Act 13 of 2019 sec 59 (1) (c)

[32] Act 38 of 2005 sec 233 (1) (c) (i &ii)

[33] ACRWC Art 5, CRC Art. 6

[34] CRC Art. 19.

[35] Art 21(a) of the United Nations Convention on the Rights of the Child (UNCRC), 1989.

[36] Art 24 of the African Charter on the Rights and Welfare of the Child (ACRWC), 1990.

[37] Sloth-Nielsen, J., & Du Toit, Z. (2016). South African Child Law, 2nd Ed. Cape Town: Juta & Co. p. 144–146.

[38] CRC Art. 21(a).

[39] Act 13 of 2019 sec 57(1).

[40] Act 13 of 2019 sec 57(2).

[41] Act 38 of 2005 sect 233 (1).

[42] Section 233. Children’s Act No. 38 of 2005.

[43] AD v. DW and Others [2007] ZACC 27, Constitutional Court of South Africa. Para.56.

[44] Act 38 of 2005 sect 236 (1)

[45] Section 186 of The Children Act No. 29 of 2022 (Kenya).

[46] IBID, para 28.

[47] Act 29 0f 2022 sec 187 (3)

[48] Act 38 of 2005 sec 233(1)(a) and Act 29 of 2019 sec 57(1)

[49] [2021] eKLR.

[50] Supplement 20 of 2012 Regulation 11 (6-8)

[51] Act 29 of 2022 sect 186 (8) (c)

[52] Act 38 of 2005 sec 233 (1) (c) (i &ii)

[53] re Baby JK aka JKM (Child) (Adoption Cause E138 of 2022) [2023] KEHC 17917 (KLR)

[54] ICCPR Arts. 2 &19

[55]  CRC General Comment 12 (2009): The Right of the Child to be Heard 10. UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child to be heard, CRC/C/GC/12, 20 July 2009, https://www.refworld.org/legal/general/crc/2009/en/70207 [accessed 21 January 2025].

[56] Art. 7 of the ACRWC

[57] Principle 8 of the Declaration of Principles on Freedom of Expression and Access to Information in Africa, 2019.

[58] Principle 9(1) (a-c) of the African Declaration on Principles on freedom of expression.

[59] Act 13 of 2019 sec 59 (1) (c)

[60] Principle 9(3)(a and b).

[61] General Comment 14 of 2003 para 44.

[62] General Comment 14 of 2003 paras 48-51.

[63] CRC General Comment 12 (2009): The Right of the Child to be Heard 9.

[64] Act 29 of 22 sec 186 (9).

[65] Sec 233(1) of The Children’s Act 38 of 2005. (South Africa)

[66] Ibid, Sec 236.

[67] R.S v J.S (A25/2024) [2024] ZAWCHC 154; 2024 (6) SA 609 (WCC) (3 June 2024).

[68] TT and Another v Minister of Social Development and Others (20/43969) [2022] ZAGPJHC 931; [2023] 1 All SA 803 (GJ); 2023 (2) SA 565 (GJ) (19 November 2022).

[69] Act 13 of 2019 sec 56 (2).

[70] Act 29 of 2022 sec 186 (4)

[71] re JNG (Minor) (Adoption Cause E002 of 2023) [2023] KEHC 22835 (KLR)

[72] Act 13 of 2019 sec 56(1) (d) and Act 29 of 2022 sec 186 (4).

[73] Act 38 of 2005 sec 231 (1)(b).

[74] G. Gaur Human Rights and Social Responsibility: A Reflection (2022) 26

[75] O.Atojoko-Omovbude Adoption of Children in Nigeria: Practice and Procedure (2011) 35-36.

[76] CRC Art 19(1)

[77] UNICEF Promising programmes to prevent and respond to child sexual abuse and exploitation found on https://www.unicef.org/documents/promising-programmes-prevent-and-respond-child-sexual-abuse-and-exploitation (accessed 28 January 2025)

[78] S Augarde & M Rydon-Grange ‘Female perpetrators of child sexual abuse: A review of the clinical and empirical literature – A 20-year update (2022) https://www.sciencedirect.com/science/article/abs/pii/S1359178921001415.

[79] LEGAL Human Rights Center Reports Children’s Rights Most Violated in Tanzania https://thechanzo.com/2023/04/12/childrens-rights-most-violated-in-tanzania-new-report-by-lhrc-finds/ (accessed 28 January 2025)

[80] Adoption of the Child Regulations 20 of 2012 regulation 12.

[81] Act 29 of 2022 sect 186 (5)

[82] In re Baby EG alias MWI (Child) (Adoption Cause 18 of 2022) [2023] KEHC 20567

[83] Ibid

[84] In the Matter of an Application for an Adoption Order by E.S.M Misc. Civil Cause No. 11 Of 2023.

[85] Misc. Application 1 of 2011 in the High Court of Tanzania at Dodoma.

[86] Art. 3(1) of Protocol on the African Charter on Human and Peoples Rights on the Rights of Older People in Africa

[87] Act 13 of 2019 sec 56 (1) (a).

[88] Act 38 of 2005 sec 231 (1)(c)

[89] Act 38 of 2005 sec 231(2) (a-d)

[90] Act 29 of 2022 sec 184 (1)(b)

[91] The European Convention on the Adoption of Children 2008 Art 5(5)

[92] Act 13 0f 2019.

[93] Act 29 of 2019 sec 25(1)

[94] Act 29 of 2022 sec 186 (6)(d)

[95] Act 38 of 2005 sec 231(1) (i-ii)

[96] Case of Schwizgebel v. Switzerland, ECHR, (Application no. 25762/07), para 77.

[97] Schwizgebel above

[98] Act 29 of 2022 sec 191

[99] Act 29 of 2022 sec 191(1 and 2)

[100] Act 38 of 2005 sec 261(5)(g) and Act 13 of 2022 sec 74(1)(a)

[101] Hague Convention of 1993 art 4(b)

[102] Hague Convention of 1993 art 5(a)

[103] Act 13 of 2022 sect 74(1) (b and c)

[104] Act 29 of 2022 sec 185(2)(a)

[105] Act 29 of 2022 sec 191

[106]https://travel.state.gov/content/travel/en/Intercountry-Adoption/Intercountry-Adoption-Country-Information/SouthAfrica.html (accessed 21 April 2025)

[107] African Charter on the Rights and Welfare of the Child (ACRWC), 1990, Article 24.