Raising awareness of children’s predicament in Kenya as a way forward
The Ministry of Education in Kenya is making spirited attempts to address and raise awareness of the predicament visited on children by parental imprisonment. It is important to recognise that since Independence, there is evidence of goodwill and commitment from a range of different state actors to enhance children’s rights in Kenya. This is demonstrated by growing efforts to enhance networking between the children’s sector, led by the Children Department under the Ministry of East African Community, Labour and Social Protection, and practitioners in the justice system.
In August 2016, Kenya hosted an international conference on the best interests of children in the criminal justice system. One of the participants, Judy Krysik, observed that ‘the most rapid and significant period of growth in terms of unique health, emotional needs and development in the human life span, occur in early childhood’. She observes that the trauma young children undergo as a result of being separated from their parents remains ‘unrecognised and unaddressed’. She argues that their needs ‘are often overshadowed by the visible legal and mental health issues of their parents and their older children’ and calls for judicial leadership in interrupting ‘the intergenerational cycle of trauma and abuse’. Reform to remove children from prison with their mothers should therefore become an integral part of this broader movement in recognising children’s rights.
Practical challenges in implementing the proposals made herein
The absence of an accountability mechanism for the children accompanying their mothers in court poses a major challenge to the reforms discussed in the current study. During an impromptu discussion with seven of my fellow sentencers at Makadara law courts in Kenya, a consensus emerged amongst them that, as their legal duty is to the accused before them, they felt accountable for the decisions affecting that person, rather than for the effect of those decisions on the legal rights of any child dependent on the accused. However, asked hypothetically whether, as a young child, they would personally have wanted to accompany their mother into custody, none said they would have wanted to do so; yet, at the same time, none would have wanted to have been left behind by the caregiver either. Nonetheless, despite their personal aversion, they all admitted to putting babies in prison ‘once in a while’. Later, one of them revisited the issue and observed that, had he been born in prison, he could have used this as a measure of personal progress, exemplifying how far he had risen professionally. But notwithstanding this potential for positive acclamation, he still maintained that he would not have wanted to have spent his early years in prison, nor would he have wanted that information disclosed to his peers in adulthood or to his own children. From the perspective of a mother, one of the sentencers was quick to point out that she shuddered to imagine what she could have done about fresh air and space to walk about if what she had gone through before, during and after the delivery [of her own baby] had happened while in prison.
The reason I chose to pose these questions for discussion in what was an informal setting was because, amongst sentencers, as with most other professional groups, an awareness of being observed, assessed, or recorded may produce tempered responses that provide an idealised image of professional conduct. Indeed, all the sentencers later agreed that their responses would have been ‘more considered and carefully worded’ if I had explained in advance my reasons for seeking their views. At the end of our discussion, we agreed to hold each other accountable in respecting the autonomy and best interests of the child in future cases and to advocate the same to the other sentencers whenever the opportunity arose. One year later, there were anecdotal claims by these sentencers that they had imprisoned significantly fewer women with children, although their claims were not tested objectively. Nonetheless, it is significant that raising awareness amongst this small group of sentencers, by asking them to empathise with the experience of mothers and young children in prison, led to a unanimous view taking shape that this is a sentencing practice best avoided.
Arguably, sentencers have been offered little academic or professional insight into the imprisonment of mothers with dependent children. Correcting this alone may help to reduce the imprisonment of women and raise awareness of more suitable non-custodial sentences that do not impact negatively on children’s life chances. But a major stumbling block to changed sentencing practice is the lack of awareness amongst the judiciary of the responsibility they owe to the children of mothers appearing in their courts. There is a lack of judicial training on the range of issues that need to be considered when sentencing expectant mothers and women with dependent children. The in-house training offered during the induction of newly appointed judges and magistrates is focused on ensuring that the facts, issues and circumstances of the offence are clearly captured in writing during the hearing, so as to properly guide the court in making the proper judgement. The production of a procedurally correct judgement, therefore, assumes priority in the fresh minds of new sentencers leaving on the periphery’ such extraneous matters as the offender’s caregiving responsibilities and consequential harms to her dependent children. These are issues that hardly ever arise for consideration during the hearing, and may not be aired even in mitigation, unless the offender is legally' represented. Consequently, the child is eclipsed by the impetus to punish the offender appropriately, in accordance with the law, as per the offence admitted or proved in court. The need to train sentencers, and other players in the pre-trial process, on how not only' to acknowledge but also protect, and be held accountable for, the rights and interests of offenders’ dependent children is of primary' importance as a basis for building other reforms. One way' of framing the significance of these considerations is to argue that the criminal courts have no explicit legal authority to ignore the legal rights of children enshrined in the UNCR.C and embodied in domestic law.
As pointed out earlier, the law mostly sets the maximum and the minimum parameters of the sentence to be imposed but leaves the exact nature and duration of the punishment to the discretion of sentencers. Clearly, the proposed training of judges in relation to their responsibilities to uphold children’s rights will help to structure judicial discretion when sentencing mothers with dependent children. However, it would be naive to assume that sentencers will all respond with an equal degree of conformity and enthusiasm. Their individual backgrounds and lived experiences are likely to inform how they' conceptualise and prioritise the autonomous interests of the child, the purposes of punishing offenders, and the effectiveness of different sentencing options in delivering the desired outcomes. Without imposing unwelcome restraint upon judicial discretion, certain presumptions in sentencing could be given institutional backing by, for example, requiring written justification in the event of individual departures and even an automatic right of appeal. Such measures would signal the legal significance of the harms imposed and would aid the exercise of consistency in discretionary’ judgements without undermining the necessary' flexibility' to respond to the facts of individual cases.
Internationally, the development of robust systems of accountability' are not just required at the sentencing stage but are also necessary' in relation to decisions that affect how mothers and babies are treated in prison and when serving noncustodial sentences. As mentioned earlier, children accompanying their mothers into prison remain officially' invisible and unregistered on the committal warrant from the court. The absence of recorded information on children born inside the prison or entering with their convicted mother is an administrative flaw that requires immediate correction and is fundamental to any safekeeping of the child.
Most acutely, collection of these data would enable a degree of scrutiny over the children’s right to life, holding the prison authorities accountable for those babies who die whilst under their care. Indeed, the implementation of any remedial measures necessarily begins by assessing the numbers of children affected and potentially able to benefit from the proposed reforms. Such recording practices are now feasible under the open-door policies in place in most prisons globally, which allows civil societies and other interested parties to get the information they need directly from prisoners.
Another resource-related obstacle to the reforms proposed in this study is that most judges and magistrates have a very' heavy' case load, and in some of the busy stations such as Makadara and Milimani in Nairobi, the capital city' of Kenya, a sentencer may sit for very' long hours and still not get to hear all matters listed on the cause list for the day. As pointed out earlier, acquiring more detailed information on the circumstances of mothers with dependent children necessarily' requires additional input from other stakeholders, most notably' the children’s department and the probation department, who have the mandate to conduct home visits. This, in turn, increases the workload of the courts by' generating larger case files, and also reduces the speed at which cases are disposed of, whilst the court awaits reports. There is, therefore, a dire need to increase the number of sentencers in order to lessen the case load on existing sentencers, enabling them to review all relevant materials and reach a decision that is consistent with the wellbeing of the child.
Arguably, the scale of any' new investment could be offset by prosecuting fewer cases and making greater use of reparative and restorative means of justice. Diversion from prosecution to mediation services is not without cost implications. But these costs are significantly' lower than the present scale of expenditure on women’s prisons, and they' hold out the prospect of longer-term savings by' reducing the risk of reoffending. Ultimately, however, the reduction of state expenditure hinges on reducing the prison estate and abolishing entire institutions as the sentencing of most women is directed to non-custodial penalties. But prison closures in a country like Kenya require political support from both the Senate and Parliament, which may' not always be forthcoming, as politicians are generally' wary' of losing votes and the confidence of their electorate by' appearing to be ‘soft’ on crime. Developing a political narrative that emphasises the rights of children, rather than the rights of offenders, is likely' to be critical to the furtherance of the reform agenda proposed in this book. However, this is no easy' task, as the sociopolitical environment in which law makers operate continues to display' deep-rooted patriarchal attitudes towards women. In Kenya, this is exemplified in the failure to implement the constitutionally' grounded 2/3 gender rule since 2010.
As pertains to women’s imprisonment, this study has argued that most of the crimes committed stem from conditions of poverty' and typically reflect women’s
Lawrence Sherman and Heather Strang (2007) Restorative Justice: The Evidence, London, The Smith Institute.
efforts to support the wellbeing of their children. Jago Russel observes that responses to crime depend not only on the perceived seriousness of the alleged offence and the part of the world in which the offence is committed but also on the identity of the accused person. Russel opines that ‘one of the best ways to understand a nation is to understand who it decides to put in jail and why’. He posits that
Understanding this matters because the unrelenting growth in imprisonment globally cannot and should not be sustained. The weight of evidence is growing that prison is not the best ways to meet many of the putative goals of imprisonment. Today’s addiction to imprisonment is also contributing to the chronic overcrowding, making prisons dangerous, inhumane places for inmates and staff. But think, too, of the enormous financial and social costs of today’s gigantic global prison population and the wasted human potential resulting from over 10 million lives being lived behind bars.
In the Kenyan context, this view is supported by the sentiments of the current chief justice in his foreword to the audit report on the criminal justice system in Kenya by the National Council on the Administration Justice. The Honourable Chief Justice correctly observes that
A few challenges persist that predispose the Criminal Justice System against the weak and the indigent in our society ... Key findings of the Audit confirm that Kenyan’s Criminal Justice System is largely skewed against the poor. It is an indictment of a system that is expected to guarantee justice to people of all walks of life, including all forms of vulnerabilities. The Audit found that more poor people are arrested, charged and sent to prison as compared to the well to do. It was an interesting finding that economic driven and social disturbance offences which are rated as petty; such as offences relating to lack of business licences, drunk and disorderly and creating disturbance form 70% of cases processed through the justice system. A major concern as per the findings was that, serious offences such as organised crime, capital offences and sexual offences were found to have the highest rate of acquittal or withdrawals.
This chapter has attempted to explore how the sentencing court could protect the rights and interests of children dependent on convicted mothers, while at the same time living up to the state’s duty to punish offenders as per the law provided. The role of the Kenyan Sentencing Guidelines in reducing women’s imprisonment has been explored and their potential for reducing the use of custody for women with dependent children has been explained. Additional sentencing options in use in other jurisdictions have been examined with a view to their introduction in Kenya. A critique of the application of precedence, which can currently operate against the rights and interests of the child, has been undertaken, and selected examples of court decisions in other jurisdictions have shown how the jurisprudence in Kenya can draw upon progressive developments elsewhere to protect the rights of innocent third parties. As a short-term expedient measure, it is proposed that the Kenyan Power of Mercy Act could be harnessed to provide for the immediate removal of the children currently held in secure facilities with their mothers. Finally, the chapter has examined the fiscal and political factors that may hinder the implementation of the recommendations made herein, whilst also considering how such risks can be ameliorated.
-  Linda Kosgey was a resident magistrate at Makadara Law Courts in Nairobi, Kenya, in 2014. 2 This discussion took place in October 2014 and the reassessment was a year later, just before I left the country for UK on PhD study leave.
-  Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and Over-Use From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 2 Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and Over-Use From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 3 Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and Over-Use From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 4 The National Council on the Administration Justice, ‘Report on the Criminal Justice System in Kenya: An Audit’ (2016). 5 David Kenani Maraga, E.G.H, Chief Justice and President of the Supreme Court of Kenya and Chairman, National Council on the Administration of Justice (2016). Nelson Mandela, Lon/) Walk to Freedom (1995) 187 available at https://www.azquotes.com/quote/363682 accessed 20 October 2018.