Leo nimehudhuria Mkutano uliojadili Domokrasia ya watu wengi huko nchini South Africa katika Chuo Kikuu cha Howard (Howard School of Law) kilichopo 2900 Van Ness Str. NW, Washington DC 20001.
Katika Mkutano huo, Profesa Penelope Andrews wa Chuo Kikuu cha Valparaiso, kilichopo jimboni Indiana, USA; aliyeandika kitabu kuhusu mchakato mzima wa Kuandika Katiba mpya ya Kidemokrasia ya Afrika ya Kusini (Post-Apartheid Constitution: Perspectives on South Africa Basic Law); amesema mwaka 1994 wakati wa kuandikwa Katiba Mpya, Afrika Kusini kulikuwa na Majaji 222 walioteuliwa kiholela na Waziri Mkuu. Profesa huyu aliyezaliwa, kukulia na kusomea Afrika Kusini amesema kati ya hao, kulikuwa na wawili weusi, wawili wasiofahamika rangi (coloured?) na waliobaki 218 walikuwa Weupe. Ni katika mazingira ya waheshimiwa hao, ambapo nchi hiyo ilitakiwa kuandika katiba mpya na kushughulikia Kesi za Mahakamani katika mtazamo mpya usiokuwa wa kibaguzi, chini ya Katiba ya Mpito.
Majaji hao kwa mara ya kwanza katika uzoefu wao wa kazi walitakiwa kufuata sheria za haki katika kutoa maamuzi yake, uwazi na ukweli, uwajibikaji, kutumikia dhamira zao (commitment) na kufuata misingi ya Katiba inayokubalika, badala ya kufurahisha mhimili wa utawala, kazi waliokuwa wakifanya huko nyuma.
Nae Balozi wa Afrika Kusini nchini Marekani Mheshimiwa Bwana Welile Nhlapo amekumbusha kwamba waheshimiwa wabunge wa Bunge la Makaburu (Apartheid) la wakati huo wa mwaka 199o ndio hilo hilo lililotakiwa lijitungie sheria lenyewe za KUJIENGUA katika uso wa mihimili ya dola la Afrika Kusini (legislate itself out of existence).
Bwana Welile amesema Mchakato wa nchi yake wa kuleta demokrasia ya watu wengi katika kuandika katiba yake umeigwa pia na Nothern Ireland, Iraq, Burundi, East Timor, Zimbabwe na Sudan.
Nami nikaona kwamba hiki ni kitendo cha kishujaa ambacho Chama cha Mapinduzi (CCM) nchini Tanzania hakiko tayari kufanya ili kujisababishia kifo chake chenyewe kwa kuachia demokrasi ya watu wengi kuamua kuhusu hatima ya Muungano wetu wa Tanganyika na Zanzibar; Kwa kuandika upya Katiba Shirikishi kama ilivyoandikwa Afrika ya Kusini; ili ijulikane walio wengi wanaamua aina ipi ya serikali ifuatwe na nchi zetu: yaani kati ya zile namna tatu za serikali kama inavyojadiliwa na wananchi kwamba:
1. Iwe serikali moja
2. Ziwe Serikali Mbili kama zilivyo sasa na migogoro yake kibaao inayozidi kunyekenya, au
3. Iwe nchi ya Shirikisho la Serikali Tatu.
Monday, April 20, 2009
Thursday, April 16, 2009
KODI WALIPAZO OBAMA NA BIDEN MAREKANI
Mambo ya ukweli na uwazi kama haya yaliyoanikwa na gazeti tajwa hapa chini ndio yanayowafanya wenzetu, angalau kuwa na imani na viongozi wao kwamba hawaliibii taifa. Tofauti na nchi zetu, hata sheria ikiwepo ya kutangaza mali kiongozi aingiapo madarakani, ETI kuna kipengele kinachosema hawezi kuwajibishwa kutangaza mali alizonazo atokapo madarakani. Ni ulaghai mtupu. Kwa mtindo huo, ni kiongozi gani katika nchi zetu za Afrika ambaye atachukuliwa kuwa ameingia na kutoka madarakani akiwa na uchungu na wananchi wake na nchi yake na kwamba hakukomba mali za taifa? Hakuna kigezo cha kupima uadilifu wa namna hii.
Habari hii nimeitoa katika gazeti la "The Examiner" la Washington DC la leo Alhamisi, Aprili 16, 2009. Jana kulikuwa na maandamano katika majimbo mengi tu katika nchi ya Marekani pamoja na Mji Mkuu wa Serikali haya Washington DC. Kwa hiyo leo kuna habari nyingi za maandamano yaliyofanywa jana ya kupinga ukatwaji wa kodi katika Bajeti ijayo, ukatwaji ulioidhinishwa na Serikali ya Rais Barack Obama. Katika kufafanua jambo hili, gazeti hili limechapisha pia mapato ya Obama kwa mwaka uliopita na kodi zake alizolipa yeye na zile za Makamu wake wa Rais Bw. Joe Biden.
Nchini Marekani, Aprili 15 ya kila mwaka ndio siku ya mwisho ya kujaza fomu za makato ya kodi za mwaka uliopita (2008/2009) wa kila rais mwenye kipato ambacho sio cha Chini kama inavyochukuliwa katika nchi hii. Kipato cha chini kama wastani ni $30,000 kwa mwaka. Kwa hiyo wapatao zaidi ya kiasi hicho wanawajibika kisheria kujaza fomu hizo ili wakatwe kodi.
Marekani kwa sasa ina deni la Dola trilioni 11 ($11.00 trillion). Kulingana na idadi yake ya watu katika nchi hii, kila mtu anadaiwa $184,000 gazeti hilo linasema.
Gazeti limesema kwamba Familia ya Obama ina kipato cha mwaka jana cha $2.7 milioni (Dola milioni mbili na laki saba) iliyopata zaidi kutokana na mauzo ya vitabu vya Obama ambavyo vinauzika sana tangu ameukwaa urais. Katika mapato hayo, Obama amelipa kodi zinazofikia $885,323.
Katika idadi hiyo, kodi ya kulipia deni la riba ya nyumba ni $50,000, na $172,050 wametoa sadaka (charity). Sadaka hizo ni pamoja na $25,000 walizotoa kwa NGO iitwayo CARE International na $25,000 walizotoa kwa The United Negro College Fund.
Kwa Upande wa Bw. Biden, yeye na mkewe mapato yao mwaka uliopita yalifikia $269,256 zilizotokana na mishahara kutoka Bunge la Senate, Widener University Delaware Tecnical & Community College pamoja na Mirahaba (royalties) toka katika Hakimiliki ya Kumbukumbu za Makamu wa Rais (audio).
Wao wamelipa kodi kiasi cha $46,952 kutokana na mapato yao ya Serikali Kuu, $11,164 ni kodi iliyolipwa katika jimbo la Delaware na $1,885 wametoa sadaka mbalimbali.
MWENZETU KOSA LAKE NI KUIBUA MAOVU KATIKA JAMII (WHISTLEBLOWING!)
Kumbe hata kwa wenzetu uhuru wa kutoa maoni; hasa uhuru wa kulalamika kwa serikali pia unafinyangwa kama huyu mwenzetu Nesi alivyoipatapata Uingereza. Je sisi tutathubutu kweli pamoja na Ibara ya 18 ya Katiba ya Jamhuri ya Muungano wa Tanzania ya mwaka 1977?
Nurse struck off for secret filming
A nurse who was struck off after she secretly filmed the neglect of patients has called for a review of how the NHS deals with whistleblowers.
Margaret Haywood broke down in tears as she was struck off by the Nursing and Midwifery Council panel and said she was "absolutely devastated" by the decision.
She insisted that recording the appalling conditions at the Royal Sussex Hospital in Brighton for the BBC's Panorama programme in July 2005 was the right thing to do.
But the NMC panel told the 58-year-old, who has worked as a nurse for more than 20 years, that her misconduct was a "major breach" of the profession's code and "it would not be in the public interest for her to be able to practise as a nurse".
Speaking after the hearing, Ms Haywood, of Liverpool, said: "There was no other way of getting the full picture. I am absolutely devastated and upset by it all. I think I have been treated very harshly.
"It is a serious issue and I knew it was a risk I was taking but I thought the filming was justified and it was in the public interest.
"I did voice my concerns through my immediate line manager and I also went to my ward manager but nothing was really taken on board."
Ms Haywood, who was found guilty of misconduct, said she had "owed it to the people on the ward" to expose the neglect.
Referring to last month's Healthcare Commission report which ound "appalling conditions" at Stafford Hospital, Ms Haywood called for a review of the system for NHS whistleblowers.
"Nurses are afraid to speak out about what is happening and the whole process needs to be reviewed so nurses can make it easier to voice their concerns," she said.
VITA KATI YA CHATU NA BINADAMU KENYA
Jamani, huyu mwenzetu siku yake ilikuwa bado. Nguvu za chatu akishajiviringisha mwilini mwa binadamu, kuweza kujikwamua sio mchezo!
Man bites python in epic struggle
A Kenyan man bit a python during a fierce three-hour struggle after the snake wrapped him in its coils and hauled him up a tree.
Related photos / videos
Man bites python in epic struggle Ben Nyaumbe stepped on the serpent in the Malindi area of Kenya's Indian Ocean Coast when it was apparently hunting for livestock.
Mr Nyaumbe said: "I stepped on a spongy thing on the ground and suddenly my leg was entangled with the body of a huge python."
It dragged the farm manager up a tree, but when it eased its grip, Mr Nyaumbe said he was able to take a mobile phone out of his pocket and phone for help.
When his supervisor came with a policeman, Mr Nyaumbe smothered the snake's head with his shirt to prevent it from swallowing him, while the rescuers tied it with a rope and pulled.
"We both came down, landing with a thud," said Mr Nyaumbe, who survived with damaged lips and bruising after being forced to bite the snake on the tip of its sharp tail.
The snake was later taken to an animal sanctuary but escaped.
Tuesday, April 14, 2009
DHAMIRA BAYANA YA KUJIENZI PAMOJA NA UMASIKINI WETU
TUMVULIE KOFIA JAJI MZALENDO HUYU KWA MAAMUZI HAYA YA BUSARA NA HEKIMA! HEKOOOOO JAJI CHOMBO, MALAWI !
IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
ADOPTION CASE NO. 1 OF 2009
IN THE MATTER OF THE ADOPTION OF CHILDREN ACT CAP. 26:01
AND
IN THE MATTER OF CJ (A FEMALE INFANT) OF C/O MR. PETER BANETI, ZOMBA (for the purposes of protecting the identity of the infant in these public records I will refer to the infant by the initials CJ)
COROM: HON. JUSTICE E.J. CHOMBO
Mr. A Chinula, Counsel for the Petitioner
Mrs. Munyenyembe, Court Interpreter
IN ATTENDANCE: The Petitioner, Ms. Madonna Louise Cicoone
Mr.S.w. Chisale – Guardian ad-Litem
Mr.Peter Baneti and Mr.Chekechiwa–Family Representatives of the Infant CJ
RULING
CHOMBO, J
On 30 March 2009 the Petitioner, Ms Madonna Loiuse Ciccone (hereinafter called the Petitioner) presented her petition to the Court desiring to adopt a female infant CJ. The said petition is supported by affidavits and skeletal arguments.
Background
The said infant CJ is presently three years old whose 14 year old mother died shortly after the birth of CJ in Zomba. The Probation Officer and Guardian ad-litem, Mr. S.W. Chisale submitted comprehensive reports on the circumstances that have led to the said infant being the subject of this application. A full and comprehensive report of
the Petitioner disclosing all the necessary information for the purpose of an adoption was also submitted.
The Court had opportunity to find out from the family representatives if they had been properly counseled on the implications of an adoption. They both confirmed to the Court their understanding of the implications of adoption and their family’s decision to have the said infant adopted; which facts confirm the affidavits of the Petitioner and I find the same to be true.
The Law
I will restrict the discussion in this section to two provisions of the law under the Adoption of Children Act,
Section 3(5) of the Act provides that:
An adoption order shall not be made in favour of any applicant who is not resident in Malawi or in respect of any infant (child) who is not so resident.
Notably the word resident is not defined in the Act. Much discussion dwelt on the issue of residence in the previous adoption case by the same Petitioner before Court. At the close of the day Nyirenda J, (as he then was) came to the conclusion that:
It might well be that the definition of ‘residence’ is at large and might be equated, in the circumstances of the case, to mere physical presence in the country at the time of the petition so that the court can make its own assessment of the Applicants and how committed they are in the undertaking. The requirement as to residence, in my view is also intended to enable the system in Malawi to verify the standing and disposition of the applicants with some degree of certainty. But all these considerations in my judgment are intended to establish that the infant child will be in safe and secure hands
There is a wealth of authorities from different jurisdictions that has dealt with the interpretation of the word ‘residence’ in a comprehensive way that I have found to be instructive and I would like to borrow from. This may, of necessity, involve lengthy quotations to buttress the point being raised. The National Court of Justice in Papua New Guinea in GN and RN, an Application {1985} PNGLR 121 (17 May 1985) quoted with approval the words of Ashworth J, in the case of Brokelmann v Barr {1971} 3 All ER 29 at 36 that:
In the judgment of this court, there has gradually been developed and established a rule of construction that prima facie at least residence involves some degree of permanence. As was said by Lord Justice Wdgery in Fox v Stirk
(9 supra) ‘It is imperative to remember in this context that residence implies a degree of permanence, In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time. Consequently, a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit, some expectation of continuity, is a vital factor, which turns simple occupation into residence. (underlining supplied)
Section 6(4) of the Adoption of Infants Act of Fiji is almost word for word with that of Malawi. In November 1997, Byrne J in re S (an infant) 1997 FJHC 183 quoted with approval the holding of Harman J in RE Adoption Application No. 52/1951 {1952} 1 Ch. 16 as follows:
His Lordship then quoted the remark of Lord Cave L.C. in Levene v IRC {1928} A.C 217 at 222 who cited the Oxford English Dictionary saying:
the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settle or usual abode, to live in or at a particular place…Again I quote from Mr. Justice Harman in Adoption Application No. 52/1951 at p.23 referring to an argument by counsel for the Applicants that while the Applicants were on leave in England, they were for the time being ‘resident’ there. His Lordship said “I should say they were for the time being staying here”, and I do not think that is the same as being resident.
It was further observed by His Lordship that “residence denotes some degree of permanence. It does not necessarily mean the applicant has a settled headquarters in this country. It seems dangerous to try to define what is meant by residence. It is unfortunate that it is not possible to do so, but in my judgment, the question before the court is in every such case whether the applicant is a person who resides in the country. In the present case I can only answer that question in the case of the wife by holding that she is not resident in this country; she is merely a sojourner here during a period of leave. (underlining supplied)
And Byrne,J. went on to say that:
The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. (underlining supplied)
According to information from the global media the Petitioner jetted into the country during the weekend just days prior to the hearing of this application. I take judicial
notice of the reports in the media that the last time that the Petitioner was in the country was in 2008 at the time of the final adoption order for David Banda. In my considered opinion this would completely remove the Petitioner from the definition of a ‘resident’ as defined by the Oxford English Dictionary and adopted in the celebrated cases sited herein.
Due to brevity of time it has not been possible to consult the Hansard at Parliament and investigate the spirit of the law at the time the Adoption of Children Act came into being. That notwithstanding I wish to hazard a rationale that this was primarily for the protection of the child, who has to adjust to her/his new family in the local jurisdiction under the supervision of the probation officer with a possibility of discontinuance of the adoption should adverse traits be observed in the infant. Section 7 provides that where the court decides to postpone the determination of an application for adoption the court may make an interim order which shall not exceed the period of two years. My convictions are further fortified by the proposal of the Malawi Law Commission in a Bill that is still before Parliament which, among other things, provides that a new Section 3(5) be enacted to include that:
(d) The applicants or one of the applicants if not a relative of the child, has, while in Malawi, fostered the child for a period of one year.
Whilst there is a felt need to open a window for inter-country adoptions there is caution and clearly some felt tension between the rights of the child to adequate welfare and the need to protect the subject of the adoption.
Put simply courts do make law by the process of precedents, and Ms Madonna may not be the only international person interested in adopting the so-called poor children of Malawi. By removing the very safeguard that is supposed to protect our children the courts by their pronouncements could actually facilitate trafficking of children by some unscrupulous individuals who would take advantage of the weakness of the law of the land. It is necessary that we look beyond a particular petitioner, and maybe even a particular benefactor but go beyond them, and consider the consequences of opening the doors too wide. Anyone could come to Malawi and quickly arrange for an adoption that might have grave consequences on the very children that the law seeks to protect.
Records at the High Court Registry will actually show that the adoption of David Banda is not the first inter-country adoption. The sole sore-thumb difference is that the residence of the applicants therein was never an issue. To date there has only been one case that has departed from the mandatory requirement of the period of residence prior to the making of an application for adoption. The issue of residence, I find, is the key upon which the question of adoption rests and it is the very bedrock of protection that our children need; it must therefore not be tampered with. As wisely
put by G. K. Chesterton, “Don’t ever take a fence down until you know the reason why it was put up”.
The Adoption of Children Act Section 4(b)
The second issue to be considered is the issue of the welfare of the child. In my attempts to make sense of this requirement under Section 4 of the Act I referred to two international instruments; the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACHPR) to which Malawi is a signatory. Section 4 provides as follows:
The court before making an adoption order shall be satisfied-
(b) that the order if made will be for the welfare of the infant, due consideration being for the purpose given to the wishes of the infant, having regard to the age and understanding of the infant.
The Act does not however offer any definition or interpretation as to the meaning or what constitutes ‘the welfare of the infant’, especially where the infant has no capacity to make any decision of its own as in the present case; thus my referencing the two international instruments. The welfare of the child has occupied many a minds culminating in the birth of these two instruments. Article 3(1) of the CRC and Article 4 (1) of the ACHPR provide that the ‘best interest of the child shall be the primary consideration’. In qualifying the term ‘the best interest of the child’ as provided for in the two instruments above I want to rely on some profound pronouncements of Bhagwati J in the case of Lakshmi Kant Pandey vs Union of India of 6 February 1984 found in AIR 1984 SC 469
It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well being of its children. Children are a ‘supremely important national asset’ and the future well being of the nation depends on how its children grow and develop…. Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves.
It is commonplace knowledge that there are irreconcilable differences between the western world and, specifically, Malawi and what the Petitioner can provide for the infant CJ. The point need not be overemphasized that material needs of a child in America and the West in general are better provided for than in Malawi. And, I must confess that there is a gripping temptation to throw caution to the wind and grant an adoption in the hope that there will be a difference in the life of even just one child. However in our guest to ensure that the children are well provided for it should be borne in mind that inter-country adoptions may not and are not the only solutions. I
have no doubt that the framers of the international instruments had this in mind when in their wisdom they included Article 24 which provides that States Parties, which recognize the system of adoption shall ensure that the best interest of the child shall be the paramount consideration and they shall:
(b) recognize that inter-country adoption in those States who have ratified or adhered to the International Convention on the Rights of the Child or this Charter may as the last resort, be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin. (underlining supplied)
Clearly inter-country adoption is supposed to be the last resort alternative. In my internal struggle to come to some sane conclusion I asked myself a number of questions. Can CJ be placed in a foster or adoptive family? Incidentally the Act does not define what ‘a foster or adoptive family’ is. The answer therefore is neither here nor there. It is evident however that CJ no longer is subject to the conditions of poverty of her place of birth as described by the Probation Officer since her admission at Kondanani Orphanage. In the circumstances can it be said that CJ cannot in any suitable manner be cared for in her country of origin? The answers to my questions are negative. In my view ‘in any suitable manner’ refers to the style of life of the indigenous or as close a life to the one that the child has been leading since birth. Presently CJ is in the care of Kondanani Orphanage and no evidence to the contrary has been brought as to the inability or unwillingness of Kondanani Orphanage to continue looking after CJ. This situation must be distinguished from the case of David who, according to facts on record, was to be returned to his biological father within a period of six months from the time that Mchinji Orphanage had admitted him. This is the same father that had desperately appealed for help after the death of his wife because of his incapacity to look after David and the unwillingness of wife’s family to care for the child. And, after six months the child was supposed to be returned to him. It is not known how much would have changed within six months.
CONCLUSION
As I make the order I am acutely aware of the high expectations that the family of CJ, and possibly other independent well-wishers, had about the unlimited opportunities that the proposed adoption would avail CJ. I have no doubt that all hope is not lost with the Petitioner’s noble and immediate ideas of investing in the improvement of more children’s lives with her projects in Malawi. It is my prayer that CJ would be among the first children to benefit from that project. Having said all this then, at the end of the day I must decline to grant the application for the adoption of the infant CJ.
MADE in chambers this 3rd day of April 2009.
E.J. CHOMBO
J U D G E
IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
ADOPTION CASE NO. 1 OF 2009
IN THE MATTER OF THE ADOPTION OF CHILDREN ACT CAP. 26:01
AND
IN THE MATTER OF CJ (A FEMALE INFANT) OF C/O MR. PETER BANETI, ZOMBA (for the purposes of protecting the identity of the infant in these public records I will refer to the infant by the initials CJ)
COROM: HON. JUSTICE E.J. CHOMBO
Mr. A Chinula, Counsel for the Petitioner
Mrs. Munyenyembe, Court Interpreter
IN ATTENDANCE: The Petitioner, Ms. Madonna Louise Cicoone
Mr.S.w. Chisale – Guardian ad-Litem
Mr.Peter Baneti and Mr.Chekechiwa–Family Representatives of the Infant CJ
RULING
CHOMBO, J
On 30 March 2009 the Petitioner, Ms Madonna Loiuse Ciccone (hereinafter called the Petitioner) presented her petition to the Court desiring to adopt a female infant CJ. The said petition is supported by affidavits and skeletal arguments.
Background
The said infant CJ is presently three years old whose 14 year old mother died shortly after the birth of CJ in Zomba. The Probation Officer and Guardian ad-litem, Mr. S.W. Chisale submitted comprehensive reports on the circumstances that have led to the said infant being the subject of this application. A full and comprehensive report of
the Petitioner disclosing all the necessary information for the purpose of an adoption was also submitted.
The Court had opportunity to find out from the family representatives if they had been properly counseled on the implications of an adoption. They both confirmed to the Court their understanding of the implications of adoption and their family’s decision to have the said infant adopted; which facts confirm the affidavits of the Petitioner and I find the same to be true.
The Law
I will restrict the discussion in this section to two provisions of the law under the Adoption of Children Act,
Section 3(5) of the Act provides that:
An adoption order shall not be made in favour of any applicant who is not resident in Malawi or in respect of any infant (child) who is not so resident.
Notably the word resident is not defined in the Act. Much discussion dwelt on the issue of residence in the previous adoption case by the same Petitioner before Court. At the close of the day Nyirenda J, (as he then was) came to the conclusion that:
It might well be that the definition of ‘residence’ is at large and might be equated, in the circumstances of the case, to mere physical presence in the country at the time of the petition so that the court can make its own assessment of the Applicants and how committed they are in the undertaking. The requirement as to residence, in my view is also intended to enable the system in Malawi to verify the standing and disposition of the applicants with some degree of certainty. But all these considerations in my judgment are intended to establish that the infant child will be in safe and secure hands
There is a wealth of authorities from different jurisdictions that has dealt with the interpretation of the word ‘residence’ in a comprehensive way that I have found to be instructive and I would like to borrow from. This may, of necessity, involve lengthy quotations to buttress the point being raised. The National Court of Justice in Papua New Guinea in GN and RN, an Application {1985} PNGLR 121 (17 May 1985) quoted with approval the words of Ashworth J, in the case of Brokelmann v Barr {1971} 3 All ER 29 at 36 that:
In the judgment of this court, there has gradually been developed and established a rule of construction that prima facie at least residence involves some degree of permanence. As was said by Lord Justice Wdgery in Fox v Stirk
(9 supra) ‘It is imperative to remember in this context that residence implies a degree of permanence, In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time. Consequently, a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit, some expectation of continuity, is a vital factor, which turns simple occupation into residence. (underlining supplied)
Section 6(4) of the Adoption of Infants Act of Fiji is almost word for word with that of Malawi. In November 1997, Byrne J in re S (an infant) 1997 FJHC 183 quoted with approval the holding of Harman J in RE Adoption Application No. 52/1951 {1952} 1 Ch. 16 as follows:
His Lordship then quoted the remark of Lord Cave L.C. in Levene v IRC {1928} A.C 217 at 222 who cited the Oxford English Dictionary saying:
the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settle or usual abode, to live in or at a particular place…Again I quote from Mr. Justice Harman in Adoption Application No. 52/1951 at p.23 referring to an argument by counsel for the Applicants that while the Applicants were on leave in England, they were for the time being ‘resident’ there. His Lordship said “I should say they were for the time being staying here”, and I do not think that is the same as being resident.
It was further observed by His Lordship that “residence denotes some degree of permanence. It does not necessarily mean the applicant has a settled headquarters in this country. It seems dangerous to try to define what is meant by residence. It is unfortunate that it is not possible to do so, but in my judgment, the question before the court is in every such case whether the applicant is a person who resides in the country. In the present case I can only answer that question in the case of the wife by holding that she is not resident in this country; she is merely a sojourner here during a period of leave. (underlining supplied)
And Byrne,J. went on to say that:
The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. (underlining supplied)
According to information from the global media the Petitioner jetted into the country during the weekend just days prior to the hearing of this application. I take judicial
notice of the reports in the media that the last time that the Petitioner was in the country was in 2008 at the time of the final adoption order for David Banda. In my considered opinion this would completely remove the Petitioner from the definition of a ‘resident’ as defined by the Oxford English Dictionary and adopted in the celebrated cases sited herein.
Due to brevity of time it has not been possible to consult the Hansard at Parliament and investigate the spirit of the law at the time the Adoption of Children Act came into being. That notwithstanding I wish to hazard a rationale that this was primarily for the protection of the child, who has to adjust to her/his new family in the local jurisdiction under the supervision of the probation officer with a possibility of discontinuance of the adoption should adverse traits be observed in the infant. Section 7 provides that where the court decides to postpone the determination of an application for adoption the court may make an interim order which shall not exceed the period of two years. My convictions are further fortified by the proposal of the Malawi Law Commission in a Bill that is still before Parliament which, among other things, provides that a new Section 3(5) be enacted to include that:
(d) The applicants or one of the applicants if not a relative of the child, has, while in Malawi, fostered the child for a period of one year.
Whilst there is a felt need to open a window for inter-country adoptions there is caution and clearly some felt tension between the rights of the child to adequate welfare and the need to protect the subject of the adoption.
Put simply courts do make law by the process of precedents, and Ms Madonna may not be the only international person interested in adopting the so-called poor children of Malawi. By removing the very safeguard that is supposed to protect our children the courts by their pronouncements could actually facilitate trafficking of children by some unscrupulous individuals who would take advantage of the weakness of the law of the land. It is necessary that we look beyond a particular petitioner, and maybe even a particular benefactor but go beyond them, and consider the consequences of opening the doors too wide. Anyone could come to Malawi and quickly arrange for an adoption that might have grave consequences on the very children that the law seeks to protect.
Records at the High Court Registry will actually show that the adoption of David Banda is not the first inter-country adoption. The sole sore-thumb difference is that the residence of the applicants therein was never an issue. To date there has only been one case that has departed from the mandatory requirement of the period of residence prior to the making of an application for adoption. The issue of residence, I find, is the key upon which the question of adoption rests and it is the very bedrock of protection that our children need; it must therefore not be tampered with. As wisely
put by G. K. Chesterton, “Don’t ever take a fence down until you know the reason why it was put up”.
The Adoption of Children Act Section 4(b)
The second issue to be considered is the issue of the welfare of the child. In my attempts to make sense of this requirement under Section 4 of the Act I referred to two international instruments; the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACHPR) to which Malawi is a signatory. Section 4 provides as follows:
The court before making an adoption order shall be satisfied-
(b) that the order if made will be for the welfare of the infant, due consideration being for the purpose given to the wishes of the infant, having regard to the age and understanding of the infant.
The Act does not however offer any definition or interpretation as to the meaning or what constitutes ‘the welfare of the infant’, especially where the infant has no capacity to make any decision of its own as in the present case; thus my referencing the two international instruments. The welfare of the child has occupied many a minds culminating in the birth of these two instruments. Article 3(1) of the CRC and Article 4 (1) of the ACHPR provide that the ‘best interest of the child shall be the primary consideration’. In qualifying the term ‘the best interest of the child’ as provided for in the two instruments above I want to rely on some profound pronouncements of Bhagwati J in the case of Lakshmi Kant Pandey vs Union of India of 6 February 1984 found in AIR 1984 SC 469
It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well being of its children. Children are a ‘supremely important national asset’ and the future well being of the nation depends on how its children grow and develop…. Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves.
It is commonplace knowledge that there are irreconcilable differences between the western world and, specifically, Malawi and what the Petitioner can provide for the infant CJ. The point need not be overemphasized that material needs of a child in America and the West in general are better provided for than in Malawi. And, I must confess that there is a gripping temptation to throw caution to the wind and grant an adoption in the hope that there will be a difference in the life of even just one child. However in our guest to ensure that the children are well provided for it should be borne in mind that inter-country adoptions may not and are not the only solutions. I
have no doubt that the framers of the international instruments had this in mind when in their wisdom they included Article 24 which provides that States Parties, which recognize the system of adoption shall ensure that the best interest of the child shall be the paramount consideration and they shall:
(b) recognize that inter-country adoption in those States who have ratified or adhered to the International Convention on the Rights of the Child or this Charter may as the last resort, be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin. (underlining supplied)
Clearly inter-country adoption is supposed to be the last resort alternative. In my internal struggle to come to some sane conclusion I asked myself a number of questions. Can CJ be placed in a foster or adoptive family? Incidentally the Act does not define what ‘a foster or adoptive family’ is. The answer therefore is neither here nor there. It is evident however that CJ no longer is subject to the conditions of poverty of her place of birth as described by the Probation Officer since her admission at Kondanani Orphanage. In the circumstances can it be said that CJ cannot in any suitable manner be cared for in her country of origin? The answers to my questions are negative. In my view ‘in any suitable manner’ refers to the style of life of the indigenous or as close a life to the one that the child has been leading since birth. Presently CJ is in the care of Kondanani Orphanage and no evidence to the contrary has been brought as to the inability or unwillingness of Kondanani Orphanage to continue looking after CJ. This situation must be distinguished from the case of David who, according to facts on record, was to be returned to his biological father within a period of six months from the time that Mchinji Orphanage had admitted him. This is the same father that had desperately appealed for help after the death of his wife because of his incapacity to look after David and the unwillingness of wife’s family to care for the child. And, after six months the child was supposed to be returned to him. It is not known how much would have changed within six months.
CONCLUSION
As I make the order I am acutely aware of the high expectations that the family of CJ, and possibly other independent well-wishers, had about the unlimited opportunities that the proposed adoption would avail CJ. I have no doubt that all hope is not lost with the Petitioner’s noble and immediate ideas of investing in the improvement of more children’s lives with her projects in Malawi. It is my prayer that CJ would be among the first children to benefit from that project. Having said all this then, at the end of the day I must decline to grant the application for the adoption of the infant CJ.
MADE in chambers this 3rd day of April 2009.
E.J. CHOMBO
J U D G E
MAPAMBANO YA TEKINOLOJIA YA HABARI
From BBC News.
EU takes legal action against UK over Web privacy
12 mins ago
The European Commission said on Tuesday it was launching legal action against Britain over concerns about the government's failure to protect Internet users' privacy.
The European Union's executive arm gave London two months to reply to the formal warning, after which Brussels could sue the Brown government before an EU court if it is not satisfied by the answer.
The commission took the action after receving complaints about behavioural advertising technology known as Phorm -- after the US company that pioneered it -- which tracks Internet users surfing to target them with ads.
The commission said it has identified "structrual problems" after following up complaints over British authorities handling of communications company BT's testing of Phorm without letting customers know.
Under EU law, a person's personal information cannot be used without their consent.
In addition to concern about Britain's interpretation of the scope of the law, the commission was also concerned that Britain does not have an independent supervisory authority to deal with intercepted information cases.
More generally, the European Commission wants to clamp down rules on the use of such behavioural advertising technology.
EU takes legal action against UK over Web privacy
12 mins ago
The European Commission said on Tuesday it was launching legal action against Britain over concerns about the government's failure to protect Internet users' privacy.
The European Union's executive arm gave London two months to reply to the formal warning, after which Brussels could sue the Brown government before an EU court if it is not satisfied by the answer.
The commission took the action after receving complaints about behavioural advertising technology known as Phorm -- after the US company that pioneered it -- which tracks Internet users surfing to target them with ads.
The commission said it has identified "structrual problems" after following up complaints over British authorities handling of communications company BT's testing of Phorm without letting customers know.
Under EU law, a person's personal information cannot be used without their consent.
In addition to concern about Britain's interpretation of the scope of the law, the commission was also concerned that Britain does not have an independent supervisory authority to deal with intercepted information cases.
More generally, the European Commission wants to clamp down rules on the use of such behavioural advertising technology.
Monday, April 13, 2009
NAMNA YA JITIHADA ZA KUZUIYA SARATANI YA MATITI
FROM Dr. Weil.com
6 Ways to Prevent Breast Cancer
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Each Monday in April the Daily Tip will cover ways to reduce risks of common cancers. We encourage you to pass the information along to loved ones.
According to the American Cancer Society, every three minutes on average, another woman learns she has breast cancer. The good news is that there are several strategies that can help reduce risk. Try incorporating the following lifestyle changes into your daily routine:
- Get active. Regular physical activity (at least 30 minutes on most days) has been shown to be protective against breast cancer.
- Maintain your health care. Early detection is key: in addition to monthly self examinations, women between ages 20 and 39 should have a clinical breast exam performed by a health care professional at least every three years; women 40 years of age or older should have annual breast exams and talk with their doctor about mammograms.
- Supplement wisely. Folic acid, vitamin D and antioxidants all may help decrease risk.
- Reduce exposure to xenoestrogens. These chemicals with estrogen-like activity are found in common pesticides and industrial pollutants and as hormone residues in meat, poultry and dairy products.
- Avoid exposure to radiation. Limiting the number of chest x-rays you receive, especially at a young age, may decrease the risk of breast cancer.
- Talk with your doctor. If you have close relatives with breast cancer, your personal risk is increased. Let your doctor know your family history, and discuss other ways you can help to prevent breast cancer.
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