Une conversation avec Dr. Aminata Toure - Politics, women's rights, intercountry adoptions and Thiéboudienne

Sûrement, Dr. Aminata Touré n’est plus à presenter.[1] With an unapologetic track record of dedication to human rights, especially women’s rights, economic injustice and opposing corruption; she now stands in the running to become the next President of Senegal. Dr Touré was the country’s Justice Minister (2012-2013), Prime Minister (2013-2014), and President of the Economic, Social and Environmental Council (2019-2020). She has led UN initiatives including as Senior Adviser and subsequently Director for Gender and Human Rights World at the United Nations Population Funds (UNPF), as well as missions and projects with an expertise in economics, good governance, and gender.

In conversation with Dr Touré in her home in Dakar in March, it now feels like a very different time following President Macky Sall’s long overdue announcement that he will not seek a third term in the 2024 presidential elections. This declaration was made in a speech he gave on 3^rd July 2023. For many Senegalese, a welcomed announcement this year, but no doubt measured scepticism remains. Nevertheless, a celebratory mood that extends to another important milestone on an almost opposite end of the spectrum: the 20^th anniversary of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the ‘Maputo Protocol’)[2].

Admittedly, for the meeting I had one agenda in mind, as former Justice Minister, I wanted to talk about Senegal’s accession to the Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of Intercountry Adoption (‘the 1993 Hague Convention’ or ‘the 1993 Hague Intercountry Adoption Convention’) and the impact on the cross border protection of children within and outside Africa. That said, the breadth of conversation meant my trusted black leather cladded laptop could not save me now, and barely opened, it turned out that I did not need it. Her presence is a rare juncture where wisdom marries wit.

To begin with, we explored the disconnect between statistics that show that Senegal has the highest proportion of female MPs in West Africa[3] versus the persisting challenges and obstacles for women’s progression. These difficulties are often shrouded in institutional patriarchy. The statistics should not become a rhetoric, it must be contextualised within the realities of lived experiences across all socioeconomic standing. And thus, as Dr Touré expressed in her article published in The Guardian[4] last year, the feeling of being ‘wronged’, being passed over will no doubt resonate with women, whatever their professional or personal path. The seemingly simple yet heavy words set the tone: “I have every right to air my feelings without shame or fear of being labelled emotional. Women need to express their anger more. Silence is the friend of injustice”. More than anything, there is a real need to consistently un-blend the chronicling of equality based on statistics as opposed to the quantitative and qualitative aspect that the terminology gender equality truly demands.[5] Ensuring that mainstream narratives about equality and diversity are held side by side with sincere and meaningful content. The UN Women’s 2022 research on the progress of SDGs reports that we may have another 286 years[6] to go before discriminatory laws are removed and the gaps in legal protection for women and girls closed. As has been emphasised so many times, gender equality should concern both men and women, and equitable justice will require more than the quantitative aspects; looking at equal rights, opportunities, responsibilities, perceptions, priorities and needs.

There is a battle to advance equal representation by going beyond the glaze of the pyramid success. When women make it to the top, or rather survive to the top, the blanket narrative where it is hailed as a stamp of progress often distracts from the many women and girls who continue to be met with inequalities. This includes inequalities in resources, access to education, training, land, credit, [7] and other fundamental gender based discriminations, often stemming from patriarchal traditions. Dr Touré reiterates that Senegal’s women and its youth are the greatest assets for economic and social development. Senegal has ratified many treaties, including those directly or indirectly related to women and children’s rights: for example, but not limited to the 1966 International Covenant on Civil and Political rights, the 1966 International Covenant on Economic, Social And Cultural Rights (ICESCR) the 1979 Elimination of All Forms of Discrimination against Women (CEDAW), the 1976 International Covenant on Economic, Social and Cultural Rights, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the 1989 Convention on the Rights of the Child (UNCRC), and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1990 African Charter on the Rights and Welfare of a Child (ACRWC), and the Maputo Protocol on the Rights of Women. Where the Hague Conference on Private International Law[8] is concerned, although not a member, Senegal’s relationship with the HCCH includes accession to two Conventions; the 1993 Hague Intercountry Adoption Convention and the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (also referred to as the Apostille Convention)[9] and hosting the Francophone workshop on the 1993 Hague Convention in November 2012.[10]

In examining Senegal’s engagement with the protection of women’s and children’s rights, Ngombe[11] has argued that since the causes of ineffective implementation of human rights principles are more sociological and cultural than legal, a sociological approach is needed to establish ‘a genuine culture of human rights’ in Senegal. Article 7 of the Constitution of Senegal states that ‘the human person is sacred. It is inviolable. The State has the obligation to respect it and to protect it…. All human beings are equal before the law. Men and women are equal in right…. The law promotes [favorise] the equal access of women and men to the mandates and functions.’ Arguably, a sociolegal approach that engages the legal tools with a social and cultural approach should coexists as norm.

Delving into aspects of the rights of youth generally, the conversation with Dr Touré highlighted the importance of following that golden thread back to grassroots. Let me explain. In exploring intercountry adoption and Senegal’s journey since acceding to the 1993 Hague Convention, Dr Touré recalled the importance of examining issues that may impede on implementation. Quite frankly, international family law only functions because domestic laws exists to foster its importance. And so, in this context, it should not seem unnatural to have conversations that go deeper. For example, to prop up the implementation of international family law, such as the adoptability of a child in intercountry adoption, grassroot issues around birth registration need to be addressed. In Senegal, the legal framework for birth registration is found within the Law No. 72-61 of 12 June 1972 on the Family Code, with Article 30 providing the legal obligation to register the birth of a child (see also Article 50). In Senegal, as of 2019, 77%[12] of children under age 5 are registered. This is an improvement from 55% in 2005[13]. Noteworthy are efforts such as a coalition[14] between the UN and local organisations organising mobile courts to travel to rural areas,[15] targeting in particular, children enrolled in Koranic schools (‘Daaras’) where documentation is usually not required. Given that data indicates that more than 50% of the world’s unregistered children under 5 are in Africa,[16] it remains a key priority in line with the UN Sustainable Development Goal 16.9. It is not difficult to see the importance and benefits, not least from a basic fundamental human rights perspective, for a child to have access to identification, protection, resources, and to avoid the risk of statelessness, trafficking, and exploitation; of some of these issues, intercountry adoption instruments are no stranger to tackling. These are not just collateral matters in the peripheral of international family law, they are part of key considerations when examining the satisfactory implementation of international instruments.

Intercountry adoption

Research by the African Child Policy Forum suggests that Africa had become the new frontier for intercountry adoption.[17] The growth in intercountry adoptions from Africa has seen available statistics reveal figures rising from 7% in 2004 to 28% in 2013.[18] Of note, in 2020, Nigeria replaced Ethiopia for the first time as the largest source of children from an African country involving intercountry adoption to a Hague Receiving State. Nigeria is currently the only African country on the top ten world list.[19]

Turning then to the interaction between Senegal and the 1993 Hague Convention, Senegal acceded to the Convention on 1^st December 2011. Although Senegal joined the Apostille Convention[20] in most recent times, the 1993 Hague Convention, a ‘children’ convention, continues to gain popularity worldwide[21] including amongst African countries.[22] Given the numbers, it might well be regarded as the ‘priority’ Convention for African Contracting States. Indeed, the United Nations Committee on the Rights of the Child regularly recommends that States join the HCCH Conventions. With this in mind, it was an honour to seat with Dr. Touré and explore the workings of the Convention from the perspective of Francophone West Africa.[23] Dr Touré presided over the implementation of the 1993 Hague Convention in its early years. As noted, Senegal has ratified a number of key international treaties, and in the context of cross border child protection, these are in particular the UNCRC and the ACRWC.  Where national laws are concerned, the Law No. 72-61 of 12 June 1972 on the Family Code is the primary instrument. Articles 223 to 253 cover the law on adoption and includes limited but important provisions on the approach in intercountry adoption cases; cases where the prospective adopter is domicile abroad (see Article 236).[24] In addition to the 1972 Act, the Senegalese Central Authority[25] cites a number of instruments that assists with implementation and/or the effective operation of the 1993 Hague Convention, these are: the Constitution, the Law No. 2005-06 of 10 May 2005 on Combating Trafficking in Persons and, Decree No.2018-1070 of 30 May 2018 on the Organization of the Ministry of Justice Guide to Intercountry Adoption. Absent intervening legislation required for the 1993 Hague Convention to become law, it would appear that Senegal adopts the Monist approach where under constitutional provisions, the Convention’s entry into force in 2011 was automatic.

The 1993 Hague Convention provides the tools in relevant circumstances to give effect to the fundamental principles established by the UNCRC and ACRWC. The implementation of a treaty such as the 1993 Hague Convention is complex and multidimensional. Prior to acceding to the Convention, States are expected to have assessed the current situation and developed an implementation plan[26] that identifies the legal and administrative framework within the country to enable the Convention to operate effectively. For example, who to designate as the Central Authority. For Senegal, that is the Autorité Centrale Compétente en matière d'Adoption Internationale, also referred to as ‘ACCAI’, based in Dakar Peytavin (Senegal). Any such implementation plan would need to take into account; (1) emergency measures such as combating child abduction and child trafficking; (2) interim measures to deal with intercountry adoption cases that are already in proceedings or anticipated new cases; and (3) long-term or multi-year plan as the country settles into the 1993 Hague Convention framework.

ACCAI’s mission includes child protection, the application of the rules and principles that guide intercountry adoption, in particular the principle of subsidiarity, costs regulation (such as preventing undue financial gain), authorization of access to information relating to the child’s origin (by the Personal Data Commission); as well as liaison with other Central Authorities, administrative and judicial authorities in Senegal.  Engaging the 1972 Family Code, the President of the High Court of the child’s place of residence is competent to issue the placement order for adoption (Article 234) and the regional Court of the child’s domicile is competent to issue the final adoption judgment (Article 236). Currently, Senegal does not have any State accredited national adoption agencies but does allow foreign accredited adoption agencies to work with the country. The principle of subsidiarity is facilitated through the establishment of a single register which lists all adoptable children in each part of Senegal. The criteria being that before a child is placed on the register, adoptability is established as follows: - (i) consent from parents or the Family Council or other legal guardian (ii) consent from a child over the age of 15 (iii) for an abandoned child pursuant to Article 294 (a) one year of searching for abandoned children (b) three years of searching for an abandoned newborn. The President of the Tribunal de Grande Instance is responsible for determining that a child is adoptable. The criterion for a prospective adopter is: a married heterosexual couple of 5 years of marriage, a single man, or a single woman; the requisite age difference between the child and prospective parents is 15 years.

Whereas there is no published statistics from ACCAI, it has been useful to explore the statistics of the top 5 receiving states in intercountry adoptions, in no particular order these are: Canada,[27] Spain,[28] Italy,[29] the United States[30] and France.[31] As there is no publicly available statistics documenting the cross border movement of Senegalese children within and outside Africa, this is clearly an incomplete picture. Nevertheless, the below table collates the number of intercountry adoptions from Senegal as the State of Origin over the years, and an interesting trend can be observed.

n/a – (data) not available

Over a period of almost two decades, between 2001 and 2020, at least 110 Senegalese children were adopted into the USA, followed by France (97), Italy (51), Spain (35) and Canada (9).  As this information is solely based on the availability of data from Central Authorities within the 1993 Hague Convention framework, the full picture is unknown. For example, the movement of children into adoptive placements abroad may have followed a domestic adoption route which would not necessarily feature here, nor would non-Convention intercountry adoptions, or alternative placements such as foster care or Kafala that subsequently leads to an adoption.

Another observation is that the figures show a dramatic decline in adoptions following accession. There is evidence to suggest that this decline is demonstrative of implementation issues, but it is reasonable to be concerned about the length of time (ergo delay), after all, an implementation plan is expected at the accession stage. What is known is that where the US is concerned for example, there has been a suspension on intercountry adoptions since February 2012. According to the US Department of States ‘the suspension…remains in place while Senegal continues to work on finalizing the necessary documents required to process intercountry adoption cases under the Hague Adoption Convention’.[32] This suggests that adoptions that took place irrespective of these restrictions would have occurred under special circumstances.  

Concluding observations

The implementation of the 1993 Hague Convention will at times require embracing challenges such as delays; however, there may also be a correlative picture with having non-HCCH membership status. This may be because of the lack of familiarity with the workings of the Hague Conference generally, and also being unable to benefit from higher levels of engagement and technical support. Having said that, it must be acknowledged that the HCCH runs an Intercountry Adoption Assistance Programme (ICATAP) which aims to advice and support countries planning ratification or those who have ratified or acceded and require assistance with implementation. In any event, it cannot be emphasised enough that more targeted work for and within the Hague African community[33] is needed, with the coordination and exchange of information on procedure and practice unique to the continent, tapping into assistance from ‘mature’ [34] Hague members. A familiar and consistent network of support. This is of particular importance when dealing with (children) Conventions with multifaceted implementation demands. There is no reason why, even within the ECOWAS community, Anglophone and Francophone countries cannot strengthen their ties in this regard.[35] Better still, promoting UN SDGs in terms of reducing inequalities (10), fostering peace, justice, and strong institutions (16) and curating strong global partnerships (17). Where the 1993 Hague Convention is concerned, in addition to identifying the need for a specialist ICATAP team dedicated to consistent implementation and technical assistance for States of Origin based in the Global South, especially Africa, comprehensive statistics on the movement of children under the auspices of intercountry adoptions within Africa is so desperately needed. It is vital to understand the interactions between neighbouring countries, not least because it is through this knowledge that intercountry adoption practices can be harmonised in a manner that strengthens the fundamental human rights of the African child.

Finally, of course, there is no coming to Dakar without, amongst others, embarking on a very humbling visit to Gorée island, absolving the grandeur of the African Renaissance Monument, walking through the corridors of the remarkable Université Cheikh Anta Diop de Dakar, experiencing the warmth and community of a fisherman village, and trying Thiéboudienne (also referred to as Ceebu jën or jollof). Without seeking to start a jollof war amongst the ECOWAS community (well, Nigeria and Ghana), having tasted Thiéboudienne, Senegal is more than just the UNESCO proclaimed heritage of jollof, it is delicious. The jury is still out. Even so, my mother remains exasperatingly confident.

As they say, Senegal is the Land of Teraanga.

Special thanks to Mr. Alioune Cisse, Conservator, (Chief of Service and Collections Manager) for his research assistance during my visit to the Université Cheikh Anta Diop de Dakar, and to Mr Souyibou Dioum (UCAD Alumni, Faculty of Economics and Management). I am also grateful to the Centre for Private International Law, University of Aberdeen.

Dr Onyoja Momoh on LinkedIn

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* by Onyoja Momoh, Dr., Barrister (Eng. & Wales), University of Aberdeen, United Kingdom

[1] Translation: Surely, Dr. Aminata Touré needs no introduction.

[2] Adopted on 11 July 2003, ratified by Senegal on 27^th December 2004. See report of the African Commission on Human and People’s Rights on the effective implementation of the African Charter and Protocol in respect of Senegal

[3] Thanks to the 2010 Gender Parity Law.

[4] Aminata Touré, Senegal’s women need to express their anger. Silence is the friend of injustice’, (October 2022) The Guardian, Global Development Project (supported by the Bill & Melinda Gates foundation).

[5] https://www.un.org/womenwatch/osagi/pdf/factsheet2.pdf

[6] UN Women, Progress on the Sustainable Development Goals: The Gender Snapshot, September 2022

[7] A Touré, ‘Senegal’s women need to express their anger. Silence is the friend of injustice’, (October 2022) The Guardian

[8] https://www.hcch.net/fr/home

[9] The Apostille came into force on 23 March 2023

[10] Conclusions and recommendations available here

[11] Remy Bernard Ngombe, ‘International legal standards for the protection of women's and children's rights in Africa: the case of Senegal’ Right. Normandy University, 2019

[12] In comparison, in the UK, the figure is 100%. Where continents are concerned, Europe, and Central Asia stands at 100%, sub-Saharan Africa at 51%. UNICEF Birth Registration: Global Databases, June 2023. See also UNHCR coverage

[13] The World bank, Data, Completeness of birth registration (%) – Senegal

[14] Amicale des Moniteurs de Daara Modernes du SénégalI, UNHCR and UNICEF. Mobile courts were reported to have taken place in the second half of 2018, allowing for more than 900 children to been documented, receiving birth certificates that were registered in the civil registry.

[15] UNHCR, ‘Senegal: Mobile courts deliver birth certificates to children living in rural areas’

[16] UNICEF Birth Registration: Global Databases, June 2023

[17] The African Child Policy Forum, Africa: The New Frontier for Intercountry Adoption. Addis Ababa: The African Child Policy Forum (2012). See also Onyoja Momoh, ‘Intercountry adoption: preventing and addressing illicit practices in intercountry adoption’ in J M Carruthers and B Lindsay (eds) in Research Handbook on International Family Law, (Edward Elgar Publishing, forthcoming 2023)

[18] Peter Selman, ‘Twenty years of the Hague Convention: A Statistical Review (presentation by Peter Selman)’ 2015, p. 26. In 2013, the top 7 African countries of origin were Ethiopia (2,005), Congo DR (587), Uganda (292), Nigeria (243), South Africa (222), Ghana (190) and Mali (13). Note however that the updated Global Statistics for 2020 placed Africa at 17%.

[19] Peter Selman ‘Global Statistics for Intercountry Adoption: Receiving States and States of Origin 2004-2020, (June 2022), p.4

[20] Entry into force on 23 March 2023. There are 125 Contracting States (as of 26 June 2023)

[21] There are 105 contracting States to the 1993 Hague Convention, the most popular of all the HCCH Children Conventions (as of 26 June 2023).

[22] 24 African Countries are Contracting States are party to the 1993 Hague Convention: Benin, Burkina Faso, Botswana, Burundi, Cabo Verde, Congo, Côte d’Ivoire, Eswatini, Ghana, Guinea, Kenya, Lesotho, Madagascar, Mali Mauritius, Morocco, Namibia, Niger, Rwanda, Senegal, Seychelles, South Africa, Togo, Zambia.

[23] 12 Francophone West African Countries are Contracting States to the 1993 Hague Convention: Benin, Burkina Faso, Burundi, Congo, Côte d’Ivoire, Guinea, Madagascar, Mali, Morocco, Niger, Senegal, and Togo.

[24] Translated: Section 236. Filing of the application: The application for adoption is submitted by the person who proposes to adopt to the court of first instance of his domicile or, if domiciled abroad, of the domicile of the adoptee; in the absence of any other court, the Regional Court of Dakar is competent. The application must be accompanied by an extract from the child's birth certificate and a copy of the required consent or consents, except in accordance with the provisions of article 233. Those who have consented to the adoption are notified of the date of the hearing, within the adjournment period plus, if applicable, the distance period.

[25] Senegal (2022), State responses to Country Profiles (HCCH)

[26] HCCH Guide to Good Practice No 1 – The implementation and operation of the 1993 Hague Intercountry Adoption Convention

[27] Canada, (2001-2021) HCCH Annual Adoption Statistics, State Responses

[28] Spain, (1997-2018) HCCH Annual Adoption Statistics, State Responses

[29] Italy, (2001-2019) HCCH Annual Adoption Statistics, State Responses

[30] United States, Receiving State (2001-2021) HCCH Annual Adoption Statistics, State Responses

[31] France, (2001-2020) HCCH Annual Adoption Statistics, State Responses

[32] https://travel.state.gov/content/travel/en/News/Intercountry-Adoption-News/reminder--senegals-suspension-on-intercountry-adoption-continues.html

[33] See HCCH efforts such as Francophone workshops on the 1993 Hague Convention taking place in [2009 (The Hague), 2012 (Dakar), 2017 (Ouagadougou) and 2019 (Abidjan) cf the recent first meeting of the Working Group on the Financial Aspects of Intercountry Adoption (June 2023) with only 3 African countries represented of the 20 in attendance, all three were the only Non HCCH members: Cabo Verde, Côte d’Ivoire, and the Republic of Guinea.

[34] African countries that have ratified or acceded to Conventions for a considerable period of time and are actively involved in the work of the Hague Conference, for example, South Africa. With this in mind, I acknowledge efforts by colleagues such as my dear friend Justice B C Mocumie, Justice of the Supreme Court of South Africa, a member of the South African Chapter of the International Association of Women Judges and former President of the Chapter (2010-2014), Primary Liaison Judge of The Hague Conference on Private International Law, representing South Africa and an expert in Family Law.

[35] Currently, Anglophone and Francophone workshops and conferences appear to take place separately.