The widespread practice of putting babies in prison
Despite routinely imprisoning infants with their mothers, there is a paucity of academic research on this practice in African jurisdictions. As pointed out earlier, Section 30 of the African Charter on the rights of the child specifically addresses the incarceration of mothers with dependent children. Yet despite the incorporation of the Charter in Kenyan law, there is almost no literature focusing on this category of children, which itself may reflect the long-held patriarchal conceptualisation of women and children in Kenyan society (as will be explored in Chapter Four). This next section will therefore again borrow heavily from the scholarship and policy development in Western jurisdictions. Nevertheless, as pertains to the limits of generalisation, it is important to point out that the purpose here is to explore the experience of other countries in order to inform a Kenyan audience. Indeed, Nelken notes that ‘it is impossible to make sense of things except against some background of previous expectations’. He cautions that ‘it would be unusual for researchers to include discussions of the way they are themselves part of the context they are describing’ and goes on to state that ‘for reform purposes comparative researchers deliberately use accounts of practices elsewhere as
David Nelken, Comparative Criminal Justice: Making Sense of Difference, Los Angeles, California (2010) 12 available at https://www.law.berkeley.edu/files/Nelken_-_ch_l-4 _-_Comparative_Criminal_Iustice(l).pdfaccessed 30 December 2018.
a foil’. The following account therefore advances cautiously as it analyses the existing literature and considers domestic reforms in the light of prevailing social and political values and resources in Kenya.101
Studies from most Western jurisdictions on women’s imprisonment indicate that there has been a steady rise in the number of women being incarcerated, some with babies, while others are pregnant at the time of imprisonment. In England and Wales, the Prison Service Order 4801 and in Kenya, section 30 of the Prison Act, provide that the decision to allow the baby into prison is made by the head of the particular prison, unless the child’s place of residence is an issue before the court, in which case competent authorities subject to judicial review make the determination.
This section defines a baby or a young child as a child below four years of age, which is the upper age limit for children in Kenyan prisons, with England and Wales setting the limit at 18 months. Such young children are incapable of expressing their views clearly and may not be aware that they are living in prison. Nonetheless, these children are innocent of the crimes committed by their mothers and are also equal holders of human rights which are enforceable against the state.
Among the progressive arguments reviewed in support of the rights of the child is the debate on whether allowing babies to remain in prison with their mothers amounts to detaining them. The Penal Reform International organisation points out that ‘human rights are not left behind at the prison gate: they apply to any individual arrested or incarcerated’. Holding babies in a custodial institution arguably amounts to incarcerating them, while leaving them behind in the community is also likely to subject them to undeserved harsh treatment.
Regionally, the challenges facing Kenya are replicated in the other jurisdictions with the exception of South Africa where, in the advent of post-colonialism, jurisprudence with significant recognition of the rights of children of imprisoned parents is progressively emerging. In South Africa, the best interests of the child are provided for under Section 28(2) of the Constitution, with the Centre for Child Law at Pretoria University offering courses in this field up to Master’s and Doctorate levels. In the South African case of S v M, three dependent boys were left on their own after their mother was convicted of fraud and sentenced to four years’ imprisonment. Granting the appeal, Justice Albie Sachs observed that the child is an autonomous individual and pointed out that:
Every child has his own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them ... The sins and the traumas of the fathers and mothers should not be visited on their children.
Supporting this view, Article 53(2) of the Kenyan Constitution states that ‘a child’s best interests are of paramount importance in every’ matter concerning a child’, which provides a higher level of protection than that envisaged in the ‘best interests’ primacy principle provided for under Article 3 of the UNCRC. Although the UNCRC forms part of the Kenyan law by virtue of ratification and incorporation vide Article 2(6) of the 2010 Kenyan Constitution, Article 41 of the UNCRC provides that ‘where a state provides better protection of children’s rights than the articles in the Convention, then those laws should apply’. Regrettably, issues of policy and the practice on the ground are not always in tandem.
The individuality of the child is further underscored in a 2015 meeting in Cape Town, South Africa, wherein the preamble to the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRs), the General Assembly stated:
Inspired by’ the determination to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, without distinction of any’ kind, and in the equal rights of men and women and of nations large and small, [we are resolved] to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained and to promote social progress and better standards of life in larger freedom.
Without delving too deeply into the debate about when life starts, taking it that a baby fits into the definition of‘the human person, without distinction of any kind’ as envisaged above, then it is reasonable to say that children’s dignity and worth are not in question, and neither is their entitlement as human rights holders. So, despite their tender age and lack of awareness, the state has a duty to safeguard these child’s rights. Echoing similar sentiments in support of the infant and the unborn child during the marking of the gains made by the UNCR.C at its 25th anniversary’, the former president of Uruguay observed that the state has an obligation to support not only nursing mothers but pregnant ones as well:
Today we know, from scientific findings, that the underlying problem begins in the mother’s womb, and we would have to begin by talking about the rights of women giving birth, in function of the phenomenon they are engendering, because we know that what is lost in the 2 or 3 first years of life is practically unrecoverable later on ... If today we understand the importance of feeding, we also know the importance of affection in the first stage of life. This matter can’t be fixed with material goods. In the best of cases, the State can provide food, shelter, medicines - but it can’t give love, it can’t give affection. This is up to the family.
This view is underscored in a British study conducted on behalf of the children’s charity Barnardo’s, which examines the major developmental significance of pregnancy in prison for the ensuing babies’ healthy and safe start in life. The writers observe that the mother’s mental and physical health during pregnancy is critically important for the baby’s health and development and that this may be seriously compromised within the prison context. They point to evidence suggesting that the level of perinatal health care offered in prison is not of the same level as that available within the community. The authors emphasise the need for support for the caregiver in order to be able to offer reliable, focused care to the child and to properly bond with them in a safe environment that enables the baby to explore and learn, facilitating their overall wellbeing. They point out that living in prison ‘may mean living in an environment that is detrimental to child development’. Looking at how incarceration affects the entire family of the convicted offender, including the new caregiver, Joyce A. Arditti gives reflections, examples, and anecdotes to bring to the reader the reality of the human suffering bedevilling these families, and the disadvantages visited on their children in terms of predisposition to a high likelihood of imprisonment, social exclusion, and low academic performance. She observes that the forced separation ‘cuts off the incarcerated parent from their child’s development, and calls for ‘real reforms that respond to the collective vulnerabilities of the incarcerated and their kin’. The separation is also underscored by Marie Hutton and Dominique Moran in their book on prison and family life. They observe that the decision to sentence separates and disconnects the individual from mainstream society and family, thereby disrupting their life and reducing it to supervised prison visits. They opine that this occasions immense ‘financial and emotional hardship’, among other negative aspects of separation. Supporting this view, Peter Scharff Smith observes that imprisonment subjects the children dependent on the convicted caregiver to immense suffering that may negatively impact their future productivity due to factors such as stigmatisation. It is also observed that the children may become hostile towards the governing bodies. Peter Scharff Smith calls for representation of children’s needs by highly trained children officers deployed in all police stations in Denmark. Commenting on the USA experience, Dwyer observes that compared to the neighbourhoods in which many incarcerated mothers live, the prison environment may provide a healthier environment due to decreased drug abuse and violence.
However, in a general statement about women’s imprisonment, David Cameron, the then British prime minister, expressed shock after visiting some mothers with babies in prison. He observed that some of the women being held were themselves born in custody. Calling for a new approach to dealing with women’s imprisonment, he stated that:
It is absolutely terrible to think of infants spending time behind bars ... There are actually women in these prisons who were born in the same prison 20 years earlier, and then have ended up there later as criminals themselves. Think of the damage done to the life chances of these children ... It’s time to think seriously about whether this is the right approach. We’ve got to break this cycle.
Although it may be argued that in England and Wales, mothers are not forced to take their children into prison, this study argues that the choice is effectively no choice because there is a lack of meaningful alternative care options for their babies. The punishment of being in custody is an experience that goes beyond the loss of liberty. According to Marlene Alejos, children accompanying incarcerated mothers may be viewed as victims of the caregiver’s circumstances. Alejos’ work mainly focuses on the situation of babies and small children accompanying their mothers in prison in Australia, Canada, Cambodia, and France. She observes that ‘for the children accompanying incarcerated mothers into prison, the change of residence results in more than a change of address’. In her view, children residing in prison are victims of the often overcrowded, deficient, harsh prison system, and she wonders how adults decide whether keeping their child in prison is the best option, even in cases where the child indicates a desire to remain with the mother. Expressing views that strongly resonate with the core foundation of the current research, Alejos reflects on the dilemma between the rights of these mothers and those of their dependent children and notes that the judicial system’s focus is invariably on the mother rather than the child. She observes that the child is mostly invisible to the legal and prison systems, in that no systematic records are kept on these children. She further notes that there are no internationally adopted guidelines to protect the rights of young children accompanying their incarcerated mothers.
Alejos also notes that deprivation of the caregiver’s liberty may adversely affect their children’s enjoyment of basic human rights relating to their health, their survival, and the development of their psychological and emotional wellbeing. However, despite pointing out these harms, decrying prison living conditions, and acknowledging that children in prison with their incarcerated mothers are entitled to their rights, Alejos does not question the legality of the practice. Instead, she observes the challenges posed by the incompatible objectives and the difficulties faced in balancing competing rights. Jean Zermatten, in his foreword to Alejos’ work, similarly notes that the study is a bold trial aimed at making states respect the concerned parties’ human rights and points out the lack of legal clarity on the issue:
It therefore seems astonishing that the special situation of children of imprisoned mothers has not been examined more by the international community, and has not been addressed by a special recommendation from one of the UN bodies, from a regional institution or from NGO’s involved in the examination of detention.
The Quaker United Nations Office report also comments on this fundamental dilemma, observing that many countries have not worked out how to punish the mother and honour the importance of keeping babies or young children with their mothers without simultaneously punishing the child:
Whilst there is a wealth of international law and Guidelines concerning imprisonment, there are almost no specific standards regarding the treatment of children in prison with their mothers ... With few exceptions, states and the United Nations human rights mechanisms have given little consideration to the rights and needs of children in prison with their mothers.
Although the children at issue remain innocent of the caregiver’s crime, as explored later, some offences may be too serious to justify a non-custodial sentence. However, Laurel Townhead observes that the complexity of the dilemma caused by the decision to imprison a mother with caregiving responsibilities ‘cannot be an excuse in failing to protect the rights’ of dependent children. She states that imprisonment can lead to the violation of not only the mother’s rights but also the rights of her children, who may be put at risk by the incarceration. She raises the important question of what rights a child has when a mother is incarcerated. Without elaborating on the specific harms suffered by these children, she points out that despite the severity and lifelong risks the mother’s imprisonment imposes on the children, the state gives scant support to, or guidance on, the issue, and fails to consider the views of the children as envisioned under Article 12 of the UNCR.C. Article 12 provides that a child who is capable of forming their own views has a right to express these views freely and that these views should be given due weight according to the age and maturity of the child.
-  David Nelken, Comparative Criminal Justice: Making Sense of Difference, Los Angeles, Calif (2010) 12 available at https://www.law.berkeley.edu/files/Nelken_-_ch_l-4_-_Co mparative_Criminal_Justice(l).pdf accessed 30 December 2018. 2 It is important to point out that as a sentencer, I am a State Officer as per the 2010 Kenyan Constitution and therefore part of the problem I am seeking to remedy through this study. However, putting into consideration the financial challenges obtaining in most developing countries, there is undeniable goodwill and commitment to improving Kenyan children’s lives. The Government of Kenya through the Judiciary appreciates the magnitude of the predicament of the children of incarcerated mothers, and hence it granted me study leave on the face of the heavy caseload at Makadara Law Courts with the hope of coming up with a launching pad for policy formulation in this regard. 3 ‘Report of a Review of Principles, Policies and Procedures on Mothers and Babies/Chil-dren in Prison’, (1999), HM Prison Service, 12; See also Section 30(4) of the Kenyan Prisons Act, which provides that, subject to such conditions as may be prescribed, the infant child of a female prisoner may be received into prison with the mother and may be supplied with clothing and necessaries at public expense, provided that such child shall only be permitted to remain in prison until it attains the age of four years or until arrangements for the child’s proper care outside prison are concluded, whichever shall be the earlier. 4 ‘Prison Practice, Good Use of the International Prison Rules’, Penal Reform International, 2nd edition (2005); See Children of Imprisoned Parents Europe Perspective On Good Practice, page 10, available at https://www.penalreform.org/wp-content/uploads/2014/12/ Resources-e-course-updated-12-14.pdf.
-  S V M (2007). (CCT 35/06)  ZACC 18; (2008) (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007) -saflii. Available at www.saflii.org>databases accessed 21 April 2017; see also https://www.crim.org accessed 28 March 2017. 2 S VM (2007). (CCT 35/06)  ZACC 18; (2008) (3) SA232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007) para 18, -saflii, available at www.saflii.org>databases accessed 21 April 2017; see also https://www.crim.org accessed 28 March 2017.
-  Resolution adopted by the General Assembly on 17 December 2015 [on the report of the Third Committee (A/70/490)] 70/175. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). 2 Neither the 1924 Geneva Declaration nor the 1959 Declaration of the Rights of the Child define when childhood starts and ends, mainly to avoid taking a stand on abortion, but the Preamble to the Declaration of the Rights of the Child highlights children’s need tor special care and protection, ‘including appropriate legal protection, before as well as after birth’. See Report of the Working Group on a Draft Convention on the Rights of the Child, Е/ CN.4/1988/28, para.18. Article 62(2) of the Kenyan constitution provides that the life of a person begins at conception. 3 In a 2016 immigration case in Canada, Judge Michael Shore of the Federal court ruled that the Immigration Appeal Decision (IAD) erred in concluding it had no ‘best interests’ to consider for the unborn child of Fangyun Li when it rejected his appeal to remain in Canada on humanitarian and compassionate grounds and in the ‘best interests’ of his unborn child. The (IAD) had ruled that ‘until there is a live birth per se there is no best interest to take into consideration and the fact of the pregnancy is just that and the panel cannot give it much thought’. By the time of that decision, Li’s Canadian wife was five months pregnant with their child. The judge found that the court erred, as the ‘best interests of the child’ test in immigration cases applies equally to born and unborn children without distinction. He stated that the court has an ‘obligation to identify, define and examine with a great deal of attention, in the light of the evidence, the unborn child’s interests’ and ordered a revisit of the matter according to the terms of his judgement available at https://www.lifesitenews.com/news/judge-slaps-down-immigration-boards-claim-that-unborn-children-have -no-best accessed 30 September 2018. 4 Jose Mujica, 2010-2015 president of Uruguay, commenting on the progress made by the UNCRC Convention on its 25th anniversary. 2015. https://www.unicef.org accessed 30 March 2017.
-  Susan Galloway, Alice Haynes, and Chris Cuthbert, An Unfair Sentence, All Babies Count: Spotlight on the Criminal Justice System, Barnardo’s (November 2014). 2 Susan Galloway, Alice Haynes, and Chris Cuthbert, An Unfair Sentence, All Babies Count: Spotlight on the Criminal Justice System, Barnardo’s (November 2014) 5. 3 Joyce A. Arditti, Parental Incarceration and Family: Psychological and Social Effects of Imprisonment on Children, Parents, and Caregivers, NYU Press (2012). 4 Joyce A. Arditti, Parental Incarceration and Family: Psychological and Social Effects of Imprisonment on Children, Parents, and Caregivers, NYU Press, (2012). 5 Maria Hutton, Dominique Moran, The Palgrave Handbook of Prison and the Family, Palgrave Studies in Prisons and Penology' 1st cd, (2019). 6 Maria Hutton, Dominique Moran, The Palgrave Handbook of Prison and the Family, Palgrave Studies in Prisons and Penology' 1st cd, (2019). 7 Peter Scharff Smith, When the Innocent Are Punished: The Children of Imprisoned Parents, Sage, (2015)
-  James Dwyer, 'Jailing Black Babies’, Faculty Publication. Paper 1715. (2014) 494, available at https://www.bbc.co.uk/news/uk-35515003 accessed 30 September 2018. 2 David Cameron, British prime minister, BBC News, 7 February 2016, https://www.bbc .co.uk/news/uk-35515003 accessed 30 September 2018. 3 Prison Reform Trust, (2011) 2. 4 Marlene Alejos, Babies and Small Children Residing in Prison, (2005) 10. 5 Marlene Alejos, Babies and Small Children Residing in Prison, (2005) 10.
-  Judge Zermatten, a juvenile court judge and a member of the Committee on the Rights of the Child and the director of the Institute international des droits de I’enfant, 2005. 2 Quaker United Nations, Violence Against Babies and Small Children Living in Prison with Their Mothers, 10 September 2008 report. 3 Laurel Townhead, Women in Prison And Children of Imprisoned Mothers: Recent Development in the United Nations Human Rights System, Quaker United Nations Office, April 2006 report.