MADONNA's lawyers argued yesterday that not being a resident of Malawi should not prevent her adopting a girl from the country.
Heading the pop star's legal team, Modechai Msiska said that although residence was usually a factor in adoptions of Malawian children by foreigners, it was not a requirement.
"If it is, then it is unconstitutional because it negates certain ri
ghts of the child," he said.
The barrister told the nation's highest court that the residence issue should be read with the country's bill of rights and international conventions on the rights of children.
Madonna's adoption bid is now hanging in the balance after the court was adjourned while the chief justice considered the final decision.
A date for the chief justice and two other judges to return to court and give their decision will be announced within the next two weeks.
A judge ruled against Madonna adopting the toddler at a hearing on 3 April on the grounds that prospective parents must usually stay in Malawi for at least 18 months to be assessed before being allowed to adopt. Mr Msiska pointed out that Madonna's charity supported many children within Malawi and so there were other reasons for treating her as if she were a resident.
However, John Gulumba, a lawyer for Eye of the Child, a children's rights organisation that is opposing the adoption, argued that anybody seeking to adopt Malawian children must be resident in the country to avoid opening "the doors for child abusers".
He said: "Inter-country adoptions should be used as the last resort when all other options, such as foster parenting in the country of residence, have failed."
Mr Gulumba added that Mercy was being cared for well at the Kondanani Children's Village and should stay within her own country and own culture.
There was further hope for Madonna after another activist group, the Malawi Human Rights Commission, appointed a lawyer, Ulemu Kammayani, to speak out in favour of the adoption.
Mr Kammayani said that though the issue of residence was part of Malawi's adoption laws, they should only be interpreted in such a way as to consider the child's best interests.
Madonna, who last year adopted another Malawian toddler, David Banda, also three, has visited Malawi three times and funds several orphanages and other charity projects.
Her Malawian lawyer, Alan Chinula, launched the appeal on the grounds that the earlier ruling was "erroneous" since the previous judge, Esme Chombo, relied on an "archaic law of more than 50 years ago".
Speaking after yesterday's appeal, he said: "We are hopeful the Supreme Court of Appeal will overturn Justice Chombo's ruling."
Meanwhile, Mercy's father, James Kambewa, is seeking to stop the adoption.
He has several days to appoint a lawyer and bring a case before the court calling for an injunction to halt Madonna's proceedings.
Mr Kambewa, 24, a security guard, argues that now he is aware of his daughter's existence he wants to reclaim her and bring her up in his own home.
