High Court Puts Off Madonna Appeal

Malawi Supreme Court at center of adoption debate on child's best interest.

May 4, 2009, 1:50 PM

NAIROBI, Kenya, May 4, 2009— -- The Malawi Supreme Court has adjourned indefinitely the case to decide whether super-star pop singer Madonna will be allowed to adopt a 3-year-old girl named Chifundo "Mercy" James.

Madonna's first attempt to adopt Mercy was rejected last month after a judge said she failed to meet the southern African nation's residency requirements for international adoption. All foreigners are required to reside in Malawi for 18 to 24 months with the child prior to being granted an adoption, something the entertainer did not do.

"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," Justice E.J. Chombo wrote in the lower court ruling. "But removing the very safeguard that is supposed to protect our children ... could actually facilitate trafficking of children by some unscrupulous individuals."

Meanwhile, a man claiming to be the girl's father has since surfaced. James Kambewa, a 24-year-old security guard who reportedly earns about $80 a month, told the Associated Press that he wants custody of her, although he has never seen the child.

"I may be poor but I think I have what it takes to raise a daughter," he said. "I will fight the adoption."

After the girl's mother died during childbirth, her surviving family placed the child in an orphanage weeks after she was born, according to court documents. Mercy's family has called Kambewa an opportunist and denies knowing him. They are on record as supporting the adoption, as is the Malawian government.

But Mavuto Bamusi, national coordinator for the Human Rights Consultative Committee, a network of Malawian civil society organizations opposed to the adoption, said that his organization still believes the lower court decision was the correct one and should be upheld, although Kambewa's claims have yet to be proven.

"We are not against Madonna and neither are we against efforts to lift Mercy James out of poverty," Bamusi told ABC News. "What we are concerned about is the precedence that may be set. If we have an environment where social workers don't have adequate time to scrutinize families, there will be chaos."

Will Madonna Adopt Again?

Madonna's Malawian lawyer Alan Chinula is arguing that the lower court's ruling is based on archaic adoption laws. Many child protection laws have not changed since the country gained independence in 1964.

During Madonna's adoption of her son David Banda last year, the lower court waived the residency requirement. David's father also came forward, but he has since said he supported the adoption. Madonna even brought the boy back to greet his father.

There are an estimated 2 million orphans in Malawi, a country that has been devastated by the AIDS crisis. Bamusi of the Human Rights Consultative Committee said that human rights groups realize some of Malawi's adoption laws are outdated, but that the proper process to change the law must be followed, as any Western country would.

He said there are many Malawian citizens who have adhered to the legal process to adopt, sometimes taking years to get a child; Madonna's money and fame should not make her an exception.

"The risk that we run is that everybody looks at the financial capacity Madonna has, but there are more aspects besides money which are important to raising children," Bamusi said. "We sympathize with the poverty situation of Mercy James, but we believe our own local capacities must be strengthened, instead of looking to foreign elements to provide for the welfare needs of children in Malawi, which is unsustainable."