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Opinion & Analysis

Kenya must sign Hague abduction convention

Tourists at a beach hotel in Mombasa on June 28, 2015. FILE PHOTO | NMG
Tourists at a beach hotel in Mombasa on June 28, 2015. FILE PHOTO | NMG 

International travel warnings against Kenya are something we take very seriously, as a rule, as blows that hit our tourism industry, economy and local lives.

But little attention is paid to the fact that firmly planted on the US government’s travel warnings’ website is a permanent warning about travelling to Kenya: Kenya is not a signatory to the Hague Convention on child abduction.

And that is hurting, and can hurt, a lot of people very badly indeed: so, the US warns people about travelling here. For sure, international conventions may seem very far removed from daily lives. But I happen to know personally how it can hurt when your ‘home’ country opts out of key international rights.

As it is, the Hague Convention is an international agreement that determines that whenever a child is abducted, it must be returned to its country of habitual residence.

It also rules that the courts of the country where a child has been living are the sole courts that can rule on the child’s custody arrangements, with all due process.

This covers two bases. It ensures that parents who have children taken from them can deploy the police and authorities in any country they land in, to get the children returned for a home country court hearing.

Without that, the day a Kenyan mother finds her children are now in Australia, what on earth can she do: they are gone! And it can be worse than Australia, which speaks English – try Tajikistan or Laos!

The convention also prevents parents ‘shopping around’ national court systems to achieve a case that the habitual parent very probably cannot attend, cannot speak the language of, may not be able to submit evidence for, and that may well favour the habitually non-custodial parent.

This can create cases where every page of evidence must be officially translated, at a cost of typically Sh6,000 a page. Parents must get foreign lawyers, and try to cover travel costs. And, mostly, will be in the dark.

For, if the abducting parent takes the children to China, files a rapid Chinese case for custody, and counts on the Kenyan courts being unable to address cases that have been handled by another sovereign court, those children are just as ‘gone’ without any genuine due process.

Of course, for the millions of citizens in happy marriages offering homes with both parents to beloved children, the Hague Convention may look like a paltry thing that we can have or live without.

But the reality is that Kenya, as much, and on some measures even more, than many countries, suffers broken relationships that affect children.

Figures show that in Nairobi, for instance, a full 50 per cent of homes are led by single mothers.

For every one of those homes, there is a father, or fathers, somewhere, and children can get horribly disrupted and hurt in the war that can sometimes happen between angry and embittered parents. That’s not a pretty reality, but it is the truth.

Moreover, signing the Hague Convention is not a complicated thing: and nowhere is it clear why Kenya, in particular, wants its own children to be vulnerable to kidnapping or foreign court hopping, versus offering parents and children alike some protection, through asserting the sovereignty of the Kenyan courts over those children.

Nor is it clear why Kenya wishes to proffer itself as a country where children can be taken and held without the parent they were taken from having any normal international rights.

In my own case, I didn’t lose my children through Kenya not being a signatory of the Hague Convention.

I weathered an international court battle in a foreign language, which never had jurisdiction, but without Kenya’s signature to the Hague Convention, couldn’t be fought, and got the custody ruling.

But the children grew up, as a direct result, without any maintenance from the well-off father, and no court that would address that: the Kenyan court simply threw it out.

That father found a legal hole, and used it to abscond financial responsibility. For many, they lose their children completely.

Kenya should sign that convention: and it really does beat me why it never has.

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