Rights of the Child, Mothers and Sentencing: The Case of Kenya 9780367698010, 9781003143291

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
Foreword
Abstract
Acknowledgements
Acronyms
Table of cases
Chapter 1 Introduction: The rights of the child, women and sentencing: The case of Kenya
1.1 Chapter abstract
1.2 Introduction
1.3 Theoretical framework
1.4 Methodology
1.5 Conclusion
Chapter 2 Exploring the United Nations Convention on the Rights of the Child from the lens of children dependent on incarcerated mothers
2.1 Chapter abstract
2.2 Introduction
2.3 Background to the study
2.4 The four guiding principles
2.5 The three clusters of rights under the UNICEF model
2.6 Conclusion
Chapter 3 Literature review on the rights of the child, mothers and sentencing
3.1 Chapter abstract
3.2 Introduction
3.3 Literature review on the imprisonment of women
3.4 Problems experienced by children left outside prison as the mother serves the sentence
3.5 The widespread practice of putting babies in prison
3.6 Debate in support of Mother and Baby Units (MBUs)
3.7 Conclusion
Chapter 4 Evolution of women imprisonment in Kenya and the effects of incarceration on their dependent children
4.1 Chapter abstract
4.2 Introduction
4.3 Justice before and after the advent of colonialism in Kenya
4.4 Women’s imprisonment in Kenya
4.5 Children accompanying their incarcerated mothers in Kenya
4.6 Children left outside as the mother serves custodial sentences in Kenya
4.7 Society’s patriarchal mindset working against women internationally
4.8 Conclusion
Chapter 5 Exploring the Kenyan Sentencing Guidelines in view of the children dependent on incarcerated mothers
5.1 Chapter abstract
5.2 Introduction
5.3 Background to the study
5.4 Key principles underpinning sentencing
5.5 The general objectives of sentencing
5.6 How courts approach sentencing and use of penal sanctions in Kenya
5.7 Non-custodial measures recognised in Kenya
5.8 The process of using Sentencing Guidelines in determining the appropriate sentence
5.9 Special consideration for specific groups of offenders
5.10 Exploring the court’s discretion
5.11 Implications of the Sentencing Guidelines for the sentencing of mothers and elements therein that may support the removal of their children from prison
5.12 Conclusion
Chapter 6 Recommendations: The rights of the child, women, and sentencing
6.1 Chapter abstract
6.2 Introduction
6.3 Enhancing some non-custodial orders and practices to avert the flow of children into prison
6.4 Penalties and practices available in other jurisdictions that may be implemented in developing countries
6.5 Examining the application of precedence set by case law in view of child-related mitigation
6.6 Exploring the Power of Mercy Act in securing release for the children accompanying incarcerated mothers
6.7 Raising awareness of children’s predicament in Kenya as a way forward
6.8 Practical challenges in implementing the proposals made herein
6.9 Conclusion
Chapter 7 Conclusion: The rights of the child, women, and sentencing
Bibliography
Index

Citation preview

Routledge Research in Human Rights Law

RIGHTS OF THE CHILD, MOTHERS AND SENTENCING THE CASE OF KENYA Alice Wambui Macharia

Rights of the Child, Mothers and Sentencing

This book draws international attention to the autonomy of children accompanying incarcerated mothers, and those they leave behind in the community, despite being dependent on the convicted caregiver. Adopting a child rights perspective, the study explores how courts could go about sentencing mothers of young children for the commission of criminal offences, whilst protecting the rights of the child as envisaged under the United Nations Convention on the Rights of the Child (UNCRC). Drawing on the author’s experience as a sentencer in the Kenyan court and with reference to domestic, regional, and international law, the book argues that children’s rights are presently left in abeyance when their mothers are sentenced to imprisonment and that greater efforts should be made to recognise and give effect to the child’s existence as an autonomous equal holder of human rights, despite being dependent on the convicted caregiver. It explores the application of precedence as well as the court’s discretion in view of the dependent child and concludes that policy reform in this respect calls for change in attitude and approach to women’s and children’s issues. Observing that internationally, most women imprisoned with their children fall beneath the custodial threshold set by law, the research examines how current sentencing practices could be reformed, and suggests harnessing the Power of Mercy Committee, the Sentencing Guidelines and progressive practices from developed countries in protecting the child’s rights by imposing noncustodial sentences for offending mothers. It is concluded that in all jurisdictions, strict accountability for the dependent child should be situated with the judiciary and that the same should be pronounced as a mandatory legal requirement. The book will be a valuable resource for academic, researchers, and policy makers working in the area of international children’s rights law and criminal law. Alice Macharia has extensive knowledge of the criminal justice system, having worked with the police, the Probation Department, and State Law and as a sentencer in the Kenyan Judiciary. She holds a PhD in Law from King’s College London, a Master of Laws degree from the University of Nairobi, a Post-graduate Diploma in Law from the Kenya School of Law, and a Bachelor of Laws degree from Moi University. Dr Macharia is an active member of the Kenya Magistrates and Judges Association and a registered member of the International Women Judges Association (Kenyan Chapter). Currently, she is based at the Kenya Judiciary Training Institute in the Judicial Education and Curriculum Development portfolio.

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Rights of the Child, Mothers and Sentencing The Case of Kenya

Alice Wambui Macharia

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Alice Wambui Macharia The right of Alice Wambui Macharia to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Macharia, Alice Wambui, author. Title: Rights of the child, mothers, and sentencing : the case of Kenya / Alice Wambui Macharia. Other titles: Routledge research in human rights law. Description: Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2021. | Series: Routledge research in human rights law | Includes bibliographical references and index. Identifiers: LCCN 2020041666 (print) | LCCN 2020041667 (ebook) | ISBN 9780367698010 (hardback) | ISBN 9781003143291 (ebook) Subjects: LCSH: Children of women prisoners--Legal status, laws, etc.--Kenya. | Children’s rights--Kenya. | Maternal deprivation-Kenya. | Women prisoners--Legal status, laws, etc.--Kenya. | Women prisoners--Family relationship--Kenya. | Sentences (Criminal procedure)--Kenya. | Convention on the Rights of the Child (1989 November 20) Classification: LCC KSK4798 .M33 2021 (print) | LCC KSK4798 (ebook) | DDC 345.67620772--dc23 LC record available at https://lccn.loc.gov/2020041666 LC ebook record available at https://lccn.loc.gov/2020041667 ISBN: 978-0-367-69801-0 (hbk) ISBN: 978-1-003-14329-1 (ebk) Typeset in Galliard by Deanta Global Publishing Services, Chennai, India

This book is dedicated to all the babies accompanying their incarcerated mothers globally, as well as the dependent children left behind by caregivers as they serve custodial sentences.

Contents

Foreword Abstract Acknowledgements Acronyms Table of cases 1 Introduction: The rights of the child, women and sentencing: The case of Kenya 1.1 Chapter abstract 1 1.2 Introduction 1 1.3 Theoretical framework 5 1.4 Methodology 6 1.5 Conclusion 9

x xii xiii xv xvi 1

2 Exploring the United Nations Convention on the Rights of the Child from the lens of children dependent on incarcerated mothers 10 2.1 Chapter abstract 10 2.2 Introduction 10 2.3 Background to the study 11 2.4 The four guiding principles 13 2.5 The three clusters of rights under the UNICEF model 19 2.6 Conclusion 26 3 Literature review on the rights of the child, mothers and sentencing 30 3.1 Chapter abstract 30 3.2 Introduction 30 3.3 Literature review on the imprisonment of women 31 3.4 Problems experienced by children left outside prison as the mother serves the sentence 41 3.5 The widespread practice of putting babies in prison 51

viii

Contents

3.6 3.7

Debate in support of Mother and Baby Units (MBUs) 58 Conclusion 63

4 Evolution of women imprisonment in Kenya and the effects of incarceration on their dependent children 4.1 Chapter abstract 65 4.2 Introduction 65 4.3 Justice before and after the advent of colonialism in Kenya 66 4.4 Women’s imprisonment in Kenya 68 4.5 Children accompanying their incarcerated mothers in Kenya 71 4.6 Children left outside as the mother serves custodial sentences in Kenya 76 4.7 Society’s patriarchal mindset working against women internationally 76 4.8 Conclusion 78 5 Exploring the Kenyan Sentencing Guidelines in view of the children dependent on incarcerated mothers 5.1 Chapter abstract 81 5.2 Introduction 81 5.3 Background to the study 82 5.4 Key principles underpinning sentencing 84 5.5 The general objectives of sentencing 85 5.6 How courts approach sentencing and use of penal sanctions in Kenya 98 5.7 Non-custodial measures recognised in Kenya 102 5.8 The process of using Sentencing Guidelines in determining the appropriate sentence 107 5.9 Special consideration for specifc groups of offenders 115 5.10 Exploring the court’s discretion 121 5.11 Implications of the Sentencing Guidelines for the sentencing of mothers and elements therein that may support the removal of their children from prison 127 5.12 Conclusion 131 6 Recommendations: The rights of the child, women, and sentencing 6.1 Chapter abstract 133 6.2 Introduction 133

65

81

133

Contents ix

6.3 6.4 6.5 6.6 6.7 6.8 6.9

Enhancing some non-custodial orders and practices to avert the fow of children into prison 135 Penalties and practices available in other jurisdictions that may be implemented in developing countries 139 Examining the application of precedence set by case law in view of child-related mitigation 142 Exploring the Power of Mercy Act in securing release for the children accompanying incarcerated mothers 146 Raising awareness of children’s predicament in Kenya as a way forward 147 Practical challenges in implementing the proposals made herein 147 Conclusion 152

7 Conclusion: The rights of the child, women, and sentencing

Bibliography Index

153

159 170

Foreword

As a magistrate, I often fnd myself trying to execute my sentencing responsibility and at the same time to protect the rights of children accompanying their mothers in court, as well as those of the unborn child where the offender is clearly pregnant. Before joining the Kenyan judiciary in 2012, I worked under the Attorney General as a state counsel seconded to the Ministry of Home Affairs, in the capacity of the ministry’s legal offcer. Prison and correctional services comprised one of the departments of the ministry, and in the course of offcial prison visits, I was confronted with the predicament of children accompanying their mothers in prison. This experience made me extremely cautious about sending pregnant women and mothers accompanied by dependent children into custody. During regular high-level meetings in the ministry involving the heads of the prison department, children’s department, and probation department, I often raised the issue of the children’s plight from a legal perspective. Before moving to the ministry headquarters in 2009, I worked for two years in the probation department as the probation offcer responsible for the assessment of women offenders for non-custodial sentences in Thika district. My interviews with most of the offenders took place inside the prison. Some of these women were pregnant or had their children with them therein. During one of the interviews, I had carried some boiled eggs and other foodstuff for a mother accompanied by her three-year-old son. Upon giving the boy one of the eggs, I asked him what it was, and he excitedly told me that it was the moon. Puzzled, I looked at the mother, and she explained that the boy, who was born in prison, had never stepped outside the prison gate, and must have confused the egg with the moon which he often saw through the overhead ventilation openings in the cell before falling asleep at night. In addition to assessment of the referred offenders, the assessment process included home visits to interview the relatives, neighbours, and authority fgures in her home area and her former schoolteachers and faith leaders where possible. It also entailed undertaking victim assessment in pursuit of possible out-of-court settlement of the dispute, whereby the parties resolve the matter between them amicably. It was in the course of these home visits that I witnessed the suffering that affects the children left behind when the mother is taken into custody, with some ending up as street children. In some instances, mostly in the urban areas

Foreword xi where there are no relatives living nearby, the children were left with no adult to care or provide for them. Indeed, in some cases, no one else knew that the children had been left on their own.1 Prior to joining the probation department, I had worked in the police department in various capacities and often witnessed how arrested mothers with young children were handled by the police. There is a dearth of published research on Kenyan penology, but my professional experience and varied academic research in the criminal justice system has provided frst-hand knowledge of matters relating to women’s imprisonment and the rights and interests of their children. It is against this background that I have developed my study. It may be important to point out that as a Commonwealth country that gained its independence from Britain in 1963, most Kenyan laws borrow from English common law. This research is therefore heavily informed by the best practices in England and Wales in regard to the treatment of convicted mothers with young children.

1 In one of the cases I interviewed on a Friday, a mother with a baby in custody gave me a small piece of paper with directions on how to reach her other children all aged below fve years, claiming that no one knew they were on their own. Instinctively, I felt she was being truthful and genuinely scared for their lives and upon getting there, the pathetic state I found them in remains etched in my mind as they had eaten everything edible in the room including uncooked maize four. I was able to rescue the situation and to secure a non-custodial sentence for the mother.

Abstract

In most jurisdictions globally, the imprisonment of pregnant women and mothers with babies is not prohibited by law. Yet, the circumstances in which these children are held challenge the legal provisions on the protection of children. The wellbeing of dependent children left behind as caregivers serve custodial sentences is also not given much consideration. Adopting a child rights perspective, this study explores how courts could go about imposing non-custodial measures to convicted mothers of young children, whilst protecting the rights of the child as envisaged under the United Nations Convention on the Rights of the Child (UNCRC). Drawing on the author’s experience as a magistrate and with reference to domestic, regional, and international law, the study argues that children’s rights are presently left in abeyance when their mothers are sentenced to imprisonment and that greater efforts should be made to recognise and give effect to the child’s existence as an autonomous individual and an equal holder of human rights, despite being dependent on the convicted caregiver. It explores the application of precedence as well as the court’s discretion in view of the dependent child and concludes that policy reform in this respect calls for a change in attitude and approach to women’s and children’s issues. Observing that internationally, most women imprisoned with their children fall beneath the custodial threshold set by law, the research examines how current sentencing practices could be reformed, and suggests harnessing the Power of Mercy Committee, the Sentencing Guidelines, and progressive practices from various jurisdictions in pursuit of the child’s rights and protection. It is concluded that strict accountability for the dependent child ought to be situated with the judiciary, and that the same should be pronounced as a mandatory legal requirement internationally.

Acknowledgements

This work would not have been possible without the enormous support I received from my main supervisor, Professor Elaine Player, who read my drafts meticulously, and my second supervisor, Professor Stephen Gilmore, as well as Dr Nicola Palmer and Dr Eva Pil, who were there for me all through the PhD academic journey at King’s College London, and the examiners, Professor Paul Rocks and Dr. Jessica Jacobson. It was a steep learning curve, and I would not have managed it without your kind guidance. I am also grateful to the UK government for fnancial support during my entire PhD studies through the Commonwealth Scholarship Commission, and to my employer, the Kenyan judiciary, for granting me the study leave. I will forever be grateful for the support. I also received enormous support from my husband, Mr John Macharia Ndegwa (Kariithi), a long-serving Chemistry lecturer at the University of Eldoret. John, thank you for the guidance and for frmly standing in at the home front as I chased my PhD dream in the UK. To our wonderful and supportive children Fridah, Janice, and Steve, thank you very much for your unwavering support and encouragement. You not only convinced me to leave you despite your pain at our

xiv

Acknowledgements

separation but also stood by to cheer and steer me on when I felt discouraged, which was often the case. I can fnally tell you: you made me push on to the fnishing line. The thought of failing you after sacrifcing so much for my goal kept me working late into the night. You are excellent team mates in this walk of life, and I deeply appreciate the company. To my housemate in London, Agnes Mukami Thiong’o, and the retired Senior Deputy Commissioner of Prisons, Mr John Kimani Matheri, who provided the information I required on Kenyan prison during the study, I say thank you very much for your generous support. Special mention goes to my loving mother, Mrs Patricia Wanjiku Muiruri. Your prayers and words, that you ‘will not turn God’s blessing into sadness over my being away’, comforted me every single day. My sisters, Susannah, Maria, and Pauline, who encouraged me all along, and my brothers, Peter, John, Francis, and Lucas: thank you for being in my life ever since I was little. You have contributed enormously to who and what I am today and I will forever be thankful. To my mother-in-law, Mrs Margret Wambui Ndegwa, I indeed ‘did not forget the children and my home’. To my brothers-in-law Peter and George, as well as my sisters-in-law Veronica and Mary, Ann, Jane, Julia, Terecia, and Jesinta, thank you for being an integral part of my life. Last but by no means the least, to the three departed great men who planted the academic dream in me: my dear loving father Mr Joseph Muiruri Gitaka (Ndirite), who convinced me that I would become a judge long before I went to school; my father-in-law Mr Stephen Ndegwa Macharia, who, as my head teacher in primary school, made me believe that with clear goals and commitment, I could be who and what I dreamed of being; and my Master in Laws degree supervisor, the Honourable Erick Ong’wang, a former magistrate who passionately shared my conviction that the rights and interests of the children accompanying their incarcerated mothers in prison should be acknowledged by the state. Your last words to me were not to deviate from my conviction so as to make the world aware of these children’s predicament and therefore to ‘do something about it’. I am still on course, mwalimu (teacher). The three of you are my heroes, and the power of your words still propels me forward to becoming ‘the judge for the voiceless’ in pursuit of my childhood call, Proverbs 31.8, to ‘speak up for those who cannot speak for themselves.’ Thank you for believing in me and for challenging me to forge ahead and measure up to your trust and high academic expectations of me. It is an arduous journey but, with God’s help, I am still on course.

Acronyms

ACRWC AU CLE CPC CSC CSO EHRC ISP JTI KSL LSK MBU MoJ KNBS NDR NCAJ NGOs NICEF OSCOLA PEV PNU RJC SRC SEU TJRC UNCRC

African Charter on the Rights and the Welfare of the Child African Union Continuous Legal Education Criminal Procedure Code Commonwealth Scholarship Commission Community Service Order The Human Rights Committee Intensive supervision probation Judicial Training Institute Kenya School of Law Law Society of Kenya Mother and Baby Unit Ministry of Justice National Bureau of Statistics Standards National Dialogue and Reconciliation National Council on the Administration of Justice Non-governmental organisations United Nations International Children’s Fund Oxford University Standard for Citation of Legal Authorities Post-election violence Party of National Unity Restorative Justice Conferencing Salaries and Remuneration Commission Social Exclusion Unit Truth, Justice and Reconciliation Commission United Nations Convention on the Rights and the Welfare of the Child UNHCR United Nations Human Rights Council UNSMR United Nations Standard Minimum Rules for the Treatment of Prisoners

Table of cases

AOG v SAJ & Another (2011) Eklr at Nairobi EB (Kosovo v Secretary of State for the Home Department) (2008) UKHL 41 [2009] AC 1159 Fatuma Hassan Salo v Republic, criminal appeal No.429 of 2006 [2006] EkLR Kennedy Munga v Republic [2011] EkLR Mill, R V [2002] EWCA Crim 26 (14 January 2002). N & Another v Health Services Executive and others [2006] IESC 60. R v Bishop (Wayne Steven), [2011] EWCA Crim 14146 NO 201102123/ A3. R v Inwood (Roland Joseph) (1974) 60 CR APP R 70 at 73. R v Rosie Lee Petherick [2012] EWCA Crim 2214. S V M (2007). (CCT 35/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312. (CC) (26 September 2007) – SAFLII. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4

1

Introduction: The rights of the child, women and sentencing The case of Kenya

1.1 Chapter abstract Incontrovertibly, all babies are dependent on the care of others for their survival and development, but babies born to women during their imprisonment or those who accompany their convicted mothers into prison, are particularly vulnerable. Nevertheless, governing bodies across the globe often fail to provide clear legal guidelines on whether the child should be separated from the incarcerated caregiver or allowed to accompany her into prison. Of particular relevance to the current study is the fact that states fail to specifcally task the judiciary with upholding the autonomy of the child and protecting their rights and interests when sentencing the mother to a custodial penalty. From a child’s rights perspective, it will be argued that the child’s rights and interests are routinely left in abeyance as the criminal justice system gives priority to punishing the accused before the court and that the focus on the convicted mother should be widened to include the needs and the welfare of her dependent children as a mandatory legal requirement.

1.2 Introduction Depending on the character of the offender, the seriousness of the crime committed, and the length of the sentence, a woman who gives birth in custody may be allowed to serve her term and take care of her baby in prison. On the other hand, a convicted mother with a young child may be allowed into prison with her baby, or opt to be separated from the child before proceeding into custody. In developed countries, after careful assessment and depending on the availability of space, a mother may be allowed to stay with her baby in a Mother and Baby Unit (MBU)1 within the prison until the child is 18 months old. After this, the

1 Mother and Baby Units (MBUs) are holdings within some prisons in the developed world which are specifcally built with the baby accompanying the incarcerated caregiver in mind, in an attempt to separate the baby from the rest of the prisoners. However, this study strongly suggests renaming these units Mother with Baby Units (MBUs), since the use of the word and criminalises the baby, as it arguably suggests that the baby has been tried through the due process of the law and is therefore a convict too.

2

Introduction

baby is moved into the care of the mother’s family where possible, or into the care of the state and a foster family. However, in most African prisons, the mother may live with the baby in the women’s prison until the child reaches the age of four, after which the offender’s family may take over the upbringing of the child. Alternatively, the Children Department may be called upon to oversee the process of placing the child in a children’s home. It is important to note that prisons in Africa are very congested, and provision of basic necessities is a challenge. In England and Wales, Ministry of Justice statistics reveal that at least 100 babies spent time living with their mothers in prisons in 2015.2 By 13 June 2017, the number of women in prison in England and Wales stood at 3,994, representing around 5% of the overall prison population.3 A study conducted in the UK by Caddle and Crisp found that 61% of female prisoners were mothers with dependent children below 18 years or were pregnant.4 In a 2012 study by Rona Epstein, it was noted that 71% of female prisoners’ children were living with their mothers prior to imprisonment, and 81% of the children were experiencing prolonged separation from their mothers for the frst time.5 According to the Kenya prison department, on the other hand, in 2015 there was an average of 4,254 women held in custody, with at least 380 children accompanying their incarcerated mothers into prison.6 The overarching law governing these children’s rights and interests is the Kenyan Constitution 2010, which fully domesticates and incorporates the United Nations Convention on the Rights of the Child (UNCRC).7 Regionally, Kenya has also ratifed the African Charter on the Rights and Welfare of the Child (ACRWC), which provides the main human rights protection established by the countries of the African Union (AU).8 The

2 The joint NSCPCC/Barnados report ‘All Babies Count’, (2014). The Prison Service Order (PSO) 4800:297.08 states that 120 babies are estimated to be born to mothers in prison each year; see also David Cameron, former British prime minister, ‘It’s time to think seriously about whether this is the right approach, we’ve got to break this cycle’, available at https:// www.bbc.co.uk/news/uk-35515003 accessed 7 February 2016. 3 Prison Reform Trust, ‘Prison: The Facts’, Bromley Briefngs Summer 2017, accessed 27 July 2018; see also Shona Minson, Rebecca Nadin, and Jenny Earle, ‘Sentencing of Mothers: Improving the Sentencing Process and Outcome for Women with Dependent Children’, a discussion paper, Prison Reform Trust, (November 2015). 4 Diane Caddle and Debbie Crisp (1997) Research fndings No. 38, Mothers in Prison, Home Offce Research and Statistics Directorate. 5 Rona Epstein (2012) ‘Mothers in prison: The Sentencing of Mothers and the Right of the Child’, Coventry Law Journal. 6 Faraja Trust, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’, available at https://www.faraja.net/index_en.php accessed 30 September 2018. The research, which was conducted at Lang’ata Women Prison, indicated that there were 370 babies in Kenyan prisons in 2012, with Lang’ata Women, the largest women’s prison in Kenya holding a total of 80; see also Macharia, Alice, ‘Analysis of the Rights of Children Accompanying Their Incarcerated Mothers in Kenyan Prison’, Master of Laws study submitted to Nairobi University in November 2013. 7 Article 2(5) of the Kenyan Constitution 2010. 8 African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, (1986).

Introduction 3 ACRWC recognises the unique challenges facing an African mother who may have many children and who may also be the sole breadwinner. Putting her in prison necessarily exposes her children to dire need, with some turning to the streets for survival. The ACRWC reaffrms the adherence of African States to international human rights norms, making particular reference to the Convention on the Rights of the Child. However, unlike any other legal instrument, the ACRWC recognises the challenges specifc to an African context and includes an additional provision on issues pertaining to dependent children of imprisoned mothers. Article 30 requires States Parties to the Charter to provide special treatment for pregnant mothers and for mothers of infants and young children who have been accused or found guilty of criminal offences, and to, in particular: a) Ensure that a non-custodial sentence will always be frst considered when sentencing such mothers; b) Establish and promote measures alternative to institutional confnement for the treatment of such mothers; c) Establish special alternative institutions for holding such mothers; d) Ensure that a mother shall not be imprisoned with her child; e) Ensure that the essential aim of the penitentiary system is reformation, the integration of the mother to the family, and social rehabilitation.9 The current Kenyan Constitution provides that life begins at conception.10 Additionally, Section 211 of the Kenyan Penal Code states that ‘where a woman convicted of an offence punishable by death is found to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment for life instead of the death penalty’.11 The Children Act 2001, which derives from the Kenyan Constitution, is the main domestic statute applied in court on matters relating to children.12 It was revised in 2012 to ‘give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and the Welfare of the Child’, among other purposes. Under Article 4(1), the Act recognises every child’s right to life and tasks the government and the family with ensuring the survival and development of the child. Article 4 (2) echoes the primacy of the child’s best interests as provided under the UNCRC, all of which will be explored further in Chapter Two. But despite these legal protections, the economic challenges of a

9 Article 30 (ACRWC). 10 Kenyan Constitution (2010) Article 26 (2) provides that the life of a person begins at conception. 11 Penal Code (Chapter 63) 1948 [Rev. 2014]. 12 Children Act (Chapter 141) 2001 [Rev2012] deals with care and protection of children, parental responsibility, maintenance, guardianship, administration of children’s institutions, adoption, fostering, and custody as well as giving effects to the principles of the UNCRC and the ACRWC and for connected purposes.

4

Introduction

developing country like Kenya leads to a reality where innocent children are living with their imprisoned mothers. Although the specifc protection against imprisoning a mother with her child provided by Article 30 of the ACRWC is yet to be incorporated into domestic law, the Kenyan Constitution fully domesticates the UNCRC, as pointed out earlier. Yet despite this protection, Section 30 of the Kenya Prison Act (Cap 90) continues to allow children to be incarcerated alongside their mothers.13 It provides that ‘An infant of a female prisoner may be received into prison with the mother and may be supplied with clothing and necessities at public expense’.14 However, the provision is silent on the specifc situation of pregnant women, who are held under the same conditions as other imprisoned women, including those with children. Consequently, it may be argued that the use of the word ‘may’ allows the prison authority to avoid proper provision for children in custody. Arguably, Section 30 is one of the major stumbling blocks to state provision of comprehensive legal protection and respect for the rights and interests of the child, as the prison is solely concerned with the convicted mother. In addition, there is no legal provision for the prison authorities to send the mother and her baby back to the court in the event that prison accommodation is thought inappropriate for the child. Arguably, the lacuna created by the lack of regulation, accountability, consultation, and harmonisation of procedures in the legal systems has contributed to the rising number of babies being born and raised in prison. These innocent children are being held in punitive conditions for crimes committed by their mothers, even though, as will be argued in subsequent chapters, most of these mothers are eligible for non-custodial sentences. This is the challenge that this study attempts to address. Globally, there is a growing general concern, especially from the prisons department and non-governmental organisations (NGOs), about punishing children for crimes committed by their mothers, and the consequences this has for the future wellbeing of these children. In most jurisdictions that respect the rule of law, criminal law applies to everyone, with few distinctions drawn on grounds of gender. Yet when the state chooses to punish a convicted mother with caregiving responsibilities, a tension arises that typically does not arise when punishing the criminal behaviour of men. This tension relates specifcally to the debatable conficting obligations owed by the state to both sanction offending and, at the same time, upholding the rights owed to children to protect their best interests. Since child protection laws are already in place in most jurisdictions globally, as evidenced by the Kenyan constitutional incorporation of the UNCRC, and sentencing practices regulated through her generic Sentencing Guidelines, the aim of this study is to consider how courts could practically and accountably apply the law in protecting the wellbeing of children who are dependent on convicted caregivers, whilst ensuring that the principles of gender equality and just deserts in sentencing are upheld. The interest in protecting the children’s rights

13 Section 30 of the Kenya Prisons Act (Cap 63) (2010). 14 Section 30 of the Kenya Prisons Act (Cap 63) (2010).

Introduction 5 herein largely aims at the policy dimension of the research question. Its primary purpose is to develop practical strategies that can be globally adopted by courts when sentencing mothers with dependent children, such as the court formally and procedurally addressing itself to the plight of the dependent child as opposed to leaving the resolution of the child’s uncertain position to the discretion of the sentencer and the prison authority when the mother and her child arrive at the prison without prior notice from the sentencing court.15 The study adopts the theoretical principles that inform a right-based approach to child protection, including examination of normative considerations that explore how children should be treated, and what policy implications fow from this in relation to the punishment of their mothers for criminal offences.

1.3 Theoretical framework This study is premised on the natural law theory, which holds that human rights are inalienable and therefore the eternal law of God, who created all human beings as equal.16 Any violation of the natural rights of children who lack the ability to enforce their rights for themselves is therefore argued to be against the law of the creator. John Locke argues that in the state of nature, whilst all human beings are equal and free, they are also insecure, hence the need to surrender certain individual rights to the state in order to achieve their common good and security in society. In all other respects, individuals retain their personal integrity and natural rights which are non-derogable as they fow from natural law.17 These general rights, which apply equally to adults and children, include the right to life, the right to be free from torture and retroactive application of penal laws, and the right to be free from servitude. Holding the children of imprisoned mothers in custody among convicted offenders infringes their rights to freedom of movement and liberty, subjecting them to overcrowded penal conditions and the risk of contracting potentially fatal communicable diseases, and consequently undermines their security and healthy development, all of which is arguably undeserved and against natural justice jurisprudence. According to Thomas Aquinas, the law ‘obliges in conscience’ only in as far as it is within the natural law, since a law that ‘departs from the law of nature … is no longer law’.18 Although Aquinas does not deduce that an unjust law is not a law and should therefore be disobeyed, he posits that such a law has more the

15 In the case of Kenya, Section 30 of the Prison’s Act states that the head of the particular prison may allow the infant child of a convicted mother to accompany her into prison. 16 John Locke, Two Treatises of Government (1698), available at http://oll.libertyfund.org/ pages/john-locke-two-treatises-1689; See also Michael D. A. Freeman (2001) 97, Lloyd’s Introduction to Jurisprudence, London, Sweet & Maxwell. 17 John Locke, Two Treatises of Government (1698), available at http://oll.libertyfund.org/ pages/john-locke-two-treatises-1689; See also Michael D.A. Freeman (2001) 97, Lloyd’s Introduction to Jurisprudence, London, Sweet & Maxwell. 18 Pius XI, Studiorum Ducem 11 (29 June 1923), Thomas Aquinas (1225–7 March 1274) was the father of Thomism, and the foremost classical opponent of natural law theory, available at http://www.ewtn.com/library/encyc/p11studi.htm accessed 18 December 2018.

6

Introduction

character of violence than of the law, and that the universal morality of law is directly refected by just laws.19 A theoretical framework based on a natural rights approach as envisaged by John Lock and Thomas Aquinas will therefore enable consideration of the dependent child as an autonomous rights holder, and lay the foundation for the development of appropriate, effective, and effcient policies for the protection of children when punishing the offending behaviour of their mothers.

1.4 Methodology This book has been motivated by the demonstrable lack of care for the children of incarcerated mothers. Research shows that this is the practice in most jurisdictions globally, with the child remaining invisible and unheard, irrespective of the country’s level of development. From the outset, however, it must be noted that my experience as a practitioner in the criminal justice system could have led to the formation of assumptions and values that may affect my objectivity as a researcher. One possible consequence that might fow from this is the risk of producing a biased review of the existing literature, which may challenge strict adherence to the demarcation expected of a rigorous academic evaluation.20 The realisation of such a risk would be to arrive at propositional conclusions, thereby failing to project the reality of the true scenario being examined. In order to move this work from polemic to academic, therefore, the research has purposely set out to examine and be informed by a range of competing perspectives that expose views contrary to my own. Bohm correctly states that The object of a dialogue is not to analyse things, or to win an argument or to exchange opinions. Rather, it is to suspend your opinions and look at opinions, to listen to everybody’s opinions, to suspend them, and to see what all that means. We can just simply share the appreciation of the meaning and out of this whole thing, the truth emerges unannounced-not that we have chosen it.21 He argues that although it is possible for an individual to have an internal dialogue within their inner self, where others are involved, it is the ‘collective way of opening up judgements and assumptions’: a stream of meaning fowing among and through us and between us. This will make possible a fow of meaning in the whole group, out of which will emerge some new understanding. It’s something new, which may not have

19 Pius XI, Studiorum Ducem 11 (29 June 1923), Thomas Aquinas (1225–7 March 1274) was the father of Thomism, and the foremost classical opponent of natural law theory, available at http://www.ewtn.com/library/encyc/p11studi.htm accessed 18 December 2018. 20 Alan Bryman (2015) xiv, Social Research Methods, 2nd edition, Oxford University Press. 21 David Bohm (1996) 2, 26, On Dialogue, Routledge Classics.

Introduction 7 been at the starting point at all. It’s something creative. And this shared meaning is the ‘glue’ or cement that holds people and societies together.22 Ultimately, therefore, the goal of the literature review herein is to ensure that existing knowledge is fully uncovered and critically understood. It is only from this basis that sound and defensible recommendations can be made, in order to provide lasting resolutions to the problems that prevail in the treatment of mothers and babies in the judicial systems globally. The main purpose of this study is therefore to explore ways and means of bridging the various gaps between the law and practice, which have led to the continued disregard of the rights and interests of children of convicted mothers internationally. The research aims to explore ways in which penal policy can be developed and sentencing reforms introduced to relieve the human rights abuses experienced by the children of imprisoned women. To this end, it examines existing legal protections for children and the regulatory instruments that guide sentencing. It also draws upon international literature that has critically explored the imprisonment of women, raising questions about the gendered experience of custodial sentences and the challenges faced by prison systems globally to adapt penal systems for women that have been designed to respond to the criminal behaviour of men. Throughout this study, the scrutiny is intended to highlight examples of good practice from other jurisdictions that could facilitate the development of practical reforms and strategies that advance the rights of children when their mothers are sanctioned for criminal behaviour. As pertains to referencing, the current study adopts the Oxford University Standard for Citation of Legal Authorities (OSCOLA), which is based on the common law practice in England and Wales.23 As in many other common law countries, the OSCOLA citation is in use among law scholars in Kenya, with most of the legal journals and publishers adhering to the OSCOLA citation guide. In order to cover the length and the breadth of the intended scope of the current study, the next chapters develop a number of themes, with Chapter Two examining the United Nations Convention on the Rights of the Child (UNCRC), which Kenya domesticated in her 2010 Constitution. The chapter examines in detail the legal framework provided by the UNCRC, which is the main international treaty ratifed by all member states to the United Nations, except the USA. The UNCRC frames the arguments for reform advanced in this research as it theoretically sets out the global standards that all state parties are expected to uphold. The chapter examines all the 42 Articles of the UNCRC to enable a doctrinal analysis of the legal provisions and their implications for children in secure facilities. The study adopts the UNICEF model in categorising children’s rights into four guiding principles and three clusters of rights. Particular emphasis

22 David Bohm (1996) 2 and 26, On Dialogue, Routledge Classics. 23 OSCOLA, Oxford University Standard for Legal Citation, fourth edition, available at https://www.law.ox.ac.uk/sites/fles/oxlaw/oscola_4th_edn_hart_2012.pdf accessed 25 December 2018.

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Introduction

is given to the principle of the best interests of the child embodied under Article 3 of the UNCRC, upon which this study is anchored. Chapter Three explores the literature on mothers and babies in prison, which is mostly drawn from developed countries. It comprises a review of academic literature that addresses the practice of incarcerating mothers with young children, as well as the effect of a mother’s incarceration on children who are left outside the prison as she serves her sentence. Much of this literature consists of empirical studies conducted in social science and criminal justice disciplines in countries such as England and Wales, Australia, and North America. Caution will be exercised in extrapolating from this experience to the realities that prevail in a developing country such as Kenya. Chapter Four explores the evolution of women’s imprisonment in Kenya. It opens with a brief background on justice before and after the advent of colonialism before discussing women in prison in Kenya and the particular problems faced in caring for women prisoners generally and the reality of child rearing behind bars, as well as the challenges faced by the children these caregivers leave behind in the community as they serve custodial sentences. Whereas the chapter examines the practice in Kenya as a case study, it may be important to point out that the comparative aspect in this section draws from the international scope, and is therefore applicable globally. It is argued that the prevailing patriarchal attitude has largely contributed to the challenges bedevilling women and children globally and that this could be cured by a greater representation of women in government. Chapter Five follows a similar methodological approach to that laid out in Chapter Two. It provides an overview of the sentencing framework in Kenya, the guidance and regulations of the decision-making process, and the sanctions that are available to the court. It starts by examining the content of the 2016 Sentencing Guidelines before critically assessing the Guidelines’ awareness of gendered considerations relating to the sentencing of women who are pregnant or who have dependent children. It explores how the provisions might be applied in determining an appropriate sentence in the light of the key principles underpinning sentencing and the objectives of sentencing. The custodial and non-custodial sanctions available, as well as how the courts approach sentencing, are also explored. In addition, the court’s discretion is critically examined, considering how this could be structured to best protect the rights of affected children when imposing sanction upon their convicted mothers. The implications of the guidelines for the sentencing of mothers, and elements therein that may support the removal of children from prisons internationally, are examined, before getting to the conclusion. The penultimate chapter explores how courts may protect the children whose rights are affected by the imprisonment of their mothers. It identifes the gap between the legal framework and the practical application of the law by the courts globally. It examines alternative approaches to sentencing that favour children’s rights over the impetus to punish the mother, rigorously testing the ethical claim that the rights of the child should be prioritised. It further explores how the

Introduction 9 best interests of the child are defned and assessed in actual cases in settled dicta internationally. The jurisprudence thus established is examined with a view to amending policy and practice on the ground. Further, the chapter considers the role that the presidential power to pardon, under the Power of Mercy, might play in delivering immediate relief to children suffering signifcant, but unintended, harms as a result of their mother’s imprisonment.24 Specifcally, consideration will be given to how the legal requirements that uphold the rights of the child can be given practical effect. Various challenges that are likely to be encountered in effecting the recommendations made herein will also be explored. The concluding chapter summarises the study and makes observations and recommendations for practical changes that could globally make prisoners’ dependent children institutionally visible during the court process, and increase protection of their legal rights and interests despite the absence of their voice and, for some, their present obliviousness to the predicament they face.

1.5 Conclusion In most jurisdictions globally, courts’ general lack of concern for children’s rights has resulted in hundreds of children spending their formative years behind prison bars. At the launching of the judicial Sentencing Guidelines in Kenya, former chief justice Dr Willy Mutunga stated: ‘It is my hope that judicial offcers and courts will use and rely on these policy guidelines when sentencing’.25 However, viewed through the lens of the children currently in prison with their mothers, and considering the long-term negative effects this may have on the children’s life chances, the black-letter law and the goodwill of sentencers is not enough to protect the rights and interests of children who are incapable of speaking up for themselves. Although the state may arguably have a duty to protect all its citizens, most mothers in prison pose no danger of serious harm to other members of society, and research shows that globally, the crimes they commit typically fall below the custodial threshold. Arguably, the starting point in respecting the child’s rights is by the trial court acknowledging the presence of an innocent autonomous person before it during the hearing of the caregiver’s case and proceeding to seek available sentencing options that prioritise holistic protection of the dependent child’s rights and interests. It will be argued that sentencers should be held legally accountable for the rights and interests of children whose mothers are brought before them in court. This will ensure the exercise of due diligence in making the necessary inquiries into the mother’s caregiving responsibilities before sentencing and will facilitate a wider consideration of social impact to form part of the sentencing process.

24 Kenyan Power of Mercy Act (2011). 25 Kenya Law Resource Centre: ‘Sentencing’, available at www.kenyalawresourcecenter.org accessed 12 May 2017.

2

Exploring the United Nations Convention on the Rights of the Child from the lens of children dependent on incarcerated mothers

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.1

2.1 Chapter abstract At the beginning of the 20th century, World War I resulted in the deaths of millions of children, while many others were orphaned. This chapter explores the United Nations Convention on the Rights of the Child (UNCRC). The UNICEF website states that ‘the CRC is the basis of all UNICEF’S work. It is the most complete statement of children’s rights ever produced and is the most widely acknowledged international human rights treaty in history’, and it is ratifed by all the states except the United States of America (USA). UNCRC promises to protect, respect, and fulfl human rights for all children. This chapter will frst explore the background to the UNCRC before examining the Articles and Protocols therein as per the UNICEF model and relevant case law. Particular emphasis will be accorded to Article 3 of the UNCRC, which expounds on the principle of the best interests of the child, which underscores the current study. It will be argued that states party to the UNCRC should acknowledge the autonomy and rights of children who are dependent on convicted caregivers.

2.2 Introduction At the end of World War I, during which millions of children lost their lives, the League of Nations, an inter-governmental organisation, was formed with the aim of protecting basic human rights standards. Eglantyne Jebb, a British teacher, helped in forming the Save the Children Organisation and also in drafting the Declaration on the Rights of the Child, which was designed to put pressure

1 Article 37, UNCRC.

UN Convention on the Rights of the Child 11 on the post-war governments to protect children’s rights. Eglantyne held the view that ‘the world is not ungenerous but unimaginative and very busy’.2. The Declaration was subsequently adopted by the League of Nations. In its 54 Articles and three optional protocols, the UNCRC provides an extensive range of civil, cultural, economic, political and social rights of children. In examining the core elements in the Instrument, the study adopts the UNICEF framework which provides comprehensive coverage of the Convention by categorising Articles 1–42 into three clusters of rights,3 which are further subdivided into four guiding principles applicable to all rights in the Convention.4 The Articles will be explored from the lens of children accompanying incarcerated mothers, and particular emphasis will be given to the second guiding principle providing for the best interests of the child, which forms the basis of the current research. There are three additional protocols to the UNCRC which will be analysed alongside the guiding principles or the clusters they are anchored on. The fnal part of the analysis of the Convention focuses on how implementation of some of the pertinent rights may be challenged by the limitations obtaining within the prison environment. Articles 43–54 dwell on the implementation measures detailing how governments and international organisations like UNICEF should work to ensure that children’s rights are protected, and it will therefore not be examined further in the current research.

2.3 Background to the study The Geneva Declaration on the Rights of the Child was adopted by the League of Nations in 1945 following World War II, when millions of children were again killed, gassed, orphaned, and generally left unprotected. The Universal Declaration of Human Rights, a milestone document in the history of human rights, was adopted by the United Nations in 1945. It set out for the frst time the fundamental human rights to be universally protected. Under Article 7, the Declaration states that all are equal before the law and are entitled without any discrimination to equal protection of the law. It was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 as the UN General Assembly Resolution 217 A. The Declaration implicitly included the rights of the child, but many argued that the special needs of children justifed an additional, separate document. A second Declaration on the Rights of the Child was adopted by the United Nations General Assembly in 1959. The United Nations Human Rights

2 Clare Mulley, ‘Eglantyne Jebb, the woman who saved the children’, available at https:// the-history-girls.blogspot.com/2014/05/eglantyne-jebb-woman-who-saved-children.html accessed 12 January 2019. 3 The three clusters comprise of the right to survival and development to one’s full potential, the participatory rights, and the protection rights. 4 The four guiding principles include Article 2 on the right to non-discrimination; Article 3 on the best interests of the child; Article 6 on the right to life, survival, and development; and lastly Article 12 on the right of the child to have their views given due consideration.

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UN Convention on the Rights of the Child

Commission started to work on the draft of the Convention on the Rights of the Child. But it was nearly 30 years later in 1989 that work on the United Nations Convention on the Rights of the Children (UNCRC) was completed and adopted by the United Nations General Assembly. The Convention is a historic document that recognised and affrmed for the frst time the existence of rights specifc to children and the responsibility of adults towards children. On 20 November 1989, during the 30th anniversary of the Declaration of the Rights of the Child, the UN General Assembly adopted the Convention and opened it for signature. The Convention came into force on 2 September 1990 after being ratifed by the required number of states. So far, 196 governments, among them all the UN member states, with the exception of the United States of America, have ratifed the Convention. Compliance is monitored by the UN Committee on the Rights of the Child, the body of independent experts composed of 18 members from countries around the world to monitor and report on the implementation of the UNCRC.5 The states’ parties make periodical reports on the status of the children in their country to the United Nations Committee on the Rights of the Child (UNCRC), which examines the progress made in the implementation of the Convention by individual states and submits a report to the Third Committee of the United Nations General Assembly. The Committee then develops the general comments and adopts a Resolution giving non-binding guidance on the implementation of the rights of the child in a specifc context for the particular member state. The Committee’s concluding observations are an independent assessment of states’ compliance with their human rights obligations under the treaty. Members of the UNCRC are independent human rights experts drawn from around the world, who serve in their personal capacity and not as representatives of states’ parties. The UNCRC has the status of an international law and is one of the most comprehensive of all the human rights treaties. It is generally regarded and accepted as binding in relations between states and nations as the framework for stable and organised international relations. International law is not self-executing. Many jurisdictions adopt a dualist approach to national and international law in which these laws exist in different planes. International law only becomes part of domestic law if expressly so enacted. It is possible for a state to be held accountable for decision making under a Treaty Convention supranational tribunal such as the European Court of Human Rights (ECHR) or the International Human Rights Court (ICC), even if these instruments are not part of the domestic law in the state at issue. Although

5 Article 43 UNCRC establishes the Committee ‘for the purposes of examining the progress made by state parties in achieving the realisation of the obligations undertaken in the present Convention’. The accountability for the child mandate upon the Committee in fulflling the spirit embodied under the UNCRC articles and principles includes a child-centred scrutiny of the standards, policies, and legal norms as well as their impact on the child’s rights, interests, and holistic life generally.

UN Convention on the Rights of the Child 13 UNCRC does not have such a supranational tribunal, state parties are expected to comply with the provisions of the UNCRC.6

2.4 The four guiding principles Under Article I, a ‘child’ is defned as anyone below the age of 18 unless the law of a particular country sets the legal age for adulthood below this. The Kenyan Constitution also sets the age of maturity at 18. The Committee on the Rights of the Child encourages states where the age of majority is below 18 to increase the level of protection for children. However, in order to narrow down the specifc needs and rights of the category of the children at issue, the working defnition of a child in this study is a child below four years, this being the upper age limit below which children are allowed to live with their caregivers in Kenyan prisons. In comparison, the age limit of children with mothers in UK prisons is 18 months, after which children are separated from their mothers. As pertains to the guiding principles which are a general requirement for all rights provided for under the UNCRC, they include Article 2 on non-discrimination of the child; Article 3 on the principle of the best interests of the child (hereafter the ‘best interests principle’); Article 6 on the right to life, survival, and development; and Article 12 providing for the right to self-expression. The following section explores each of these principles further with particular emphasis on the best interests principle, which is particularly relevant to the current study.

2.4.1 Non-discrimination principle The frst guiding principle is under Article 2, which expounds on non-discrimination. It states that the Convention applies to every child without discrimination, irrespective of the child’s, or his or her parent’s or legal guardian’s, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth, or other status.7 States’ parties are required to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment based on the parent, legal guardian, or family member’s status, activities, expressed opinion, or belief.8 In spite of the challenges that may be posed in the application of this provision in the case of children accompanying incarcerated caregivers, this study argues that putting innocent children in prison owing to the caregiver’s legal status, to wit imprisonment, is a form of discrimination against the child. Shifting the focus from the mother to a child’s rights approach, this research holds the view that this practice punishes the baby for crimes they have not personally committed. In pursuit of

6 The Vienna Convention on the law treaty, Article 26. It provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Tobin, page 320. 2014). The Convention opened for signature on 20th November 1989 and entered into force on 2nd September 1990. 7 Article 2(1). 8 Article 2(2).

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UN Convention on the Rights of the Child

the child’s protection ‘against all forms of discrimination’, the study will explore in a later chapter appropriate legal measures that may be taken.

2.4.2 The ‘best interests of the child’ principle Article 3 of the Convention is the second of the guiding principles. It is the overarching principle of the UNCRC and provides for the best interests of the child. The Article forms the foundation for the present research into children accompanying incarcerated mothers in prison. It states that: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.9 Under Article 3(1), no defnition of ‘best interests’ is given, or indeed what is meant by ‘a primary consideration’, leaving it at the discretion of the court or the body involved to interpret each case as per its individual circumstances. During the 2008 Janusz Korczak lecture given by Emily Logan, who was the Ombudsman for Children in Ireland and the chairperson of the European Network of Ombudsmen for Children (ENOC) at Stockholm, it was observed that ‘there is purpose to this lack of specifcity – it allows for an appropriate balancing of considerations within a well-defned procedural framework’.10 In the case of ZH (Tanzania) v Secretary of State for the Home Department, the UK Supreme Court held that a child’s best interests should be accorded primacy of importance, although this does not imply that the child’s rights supersede all other relevant considerations, but that they ought to rank higher than other factors.11 The facts of the case were that a Tanzanian mother of two had resisted deportation after making several fraudulent asylum applications, one in her own name and two in fake Somali names, and a further failed human rights application, before using the children as a ‘trump card’ to lodge similar claims with the aim of preventing her removal from the UK. The tribunal had ruled that her immigration history was ‘appalling’ and found her to be seriously lacking in credibility. She had the children knowing that her immigration status was precarious. Having her second child was demonstrably

9 Article 3(1). 10 Emily Logan, Ombudsman for Children, Ireland, and chairperson of the European Network of Ombudsmen for Children (ENOC) Stockholm, 2008 Janusz Korczak Lecture, ‘The child’s best interest: A generally applicable principle’, 9 September (2008) available at https://rm.coe.int/16806da904 accessed 30 September 2018. The lecture was given in the framework of the Conference ‘Building a Europe for and with Children, Toward a Strategy for 2009–2011’, organised jointly by the Council of Europe and the Swedish Chairmanship of the Council of Europe in Stockholm. 11 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 available at http://www.bailii.org/uk/cases/UKSC/2011/4.html accessed 10 October 2018.

UN Convention on the Rights of the Child 15 irresponsible. However, the children were innocent of their parents’ shortcomings. The parents now had to choose what would be the best for their children: we do not consider that it can be regarded as unreasonable for the respondent’s decision to have that effect, because the eventual need to take such a decision must have been apparent to them ever since they began their relationship and decided to have children together.12 However, the Supreme Court observed that despite the mother’s lack of credibility, the effects of her removal on the rights of the children, who were British by virtue of being born of a British father, had to be taken into consideration. The children had lived and been educated in Britain all their lives, and the mother had been their primary carer as the father, who was HIV positive, was living with his wife and parents, although he had a good relationship with the children. Lady Hale observed that the Strasbourg Court expected the UK ‘national authorities to apply Article 3(1) of the UNCRC and treat the best interests of a child as a primary consideration’. She further observed that the Article ‘is a binding obligation in international law, and the spirit, if not the precise language, has been translated into our national law’.13 To this end, Lady Hale expounds that Section 11 of the England and Wales Children Act 2004 mandates public bodies to embrace the envisaged protection of the child. She points out that children ‘have little or no choice’ in cases where a parent decides to take them away upon being compulsorily removed from the children’s country of origin as ‘there is no machinery for consulting them or giving independent consideration to their views’.14 Lady Hale, however, points out that in matters touching on the interests of the child, the important thing is to consider their best interests frst. Quoting paragraph 1.1 of the UNHCR Guidelines, she states that: The term ‘best interests’ broadly describes the well-being of a child … The CRC neither offers a precise defnition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: • the best interests must be the determining factor for specifc actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); • the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).15

12 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para 8 available at http://www.bailii.org/uk/cases/UKSC/2011/4.html accessed 10 October 2018. 13 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para 25 available at http://www.bailii.org/uk/cases/UKSC/2011/4.html accessed 10 October 2018. 14 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para 1 available at http://www.bailii.org/uk/cases/UKSC/2011/4.html accessed 10 October 2018. 15 UNHCRC (May 2008) 1.1; See also Articles 21, 3, and 9 UNCRC and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para 25 available at http://www .bailii.org/uk/cases/UKSC/2011/4.html accessed 10 October 2018.

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Interpreting the implication of this guidance, Lady Hale states that decisions such as who the child is going to live with, which therefore directly affect the child’s upbringing, ought to be distinguished from those that have no direct impact on the child, such as where either of the parents is going to be living after the separation. She observes that Article 9 draws a distinction between situations where the compulsory separation is necessary for the child’s best interests pursuant to Article 9(1), and, separation of the parent from the child necessitated by factors such as the death of the parent or the parent being exiled, detained, imprisoned, or deported, as provided for under Article 9(4).16 There appears to be a general consensus among the higher courts on the need to avert separation that may rupture family life. In the case of EB (Kosovo v Secretary of State for the Home Department), Lord Bingham of Cornhill observed that ‘there is no bright-edge or bright-line rule’ since ‘cases would not raise such stark choices ordinarily’.17 He opines that the circumstances of the effect of a parent’s removal on the family unit, where family life is enjoyed as a whole, and on each of the individual members separately, call for a ‘careful and informed evaluation of the facts of the particular case’.18 In search of the meaning of ‘a primary consideration’ for its decision in the above ZH case, the Supreme Court of the UK drew on the Australian High Court decision in Minister for Immigration and Ethnic Affairs v Teoh, in which Mason CJ and Deane J observe that a decision maker with an eye to the principles enshrined in the Convention would be looking for the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.19 The best interests framework is also expressly applied in other areas of law. Borrowing from the Mental Capacity Act, notwithstanding its adult focus, the ‘best interests’ principle is given much weight in the Mental Capacity Act 2005 on matters touching on those who may lack the capacity to make individual decisions.20 In her 2007 report to the British Psychological Society, Theresa Joyce points out that ‘when we make a decision for someone, we have to make sure that it’s the best and the less restrictive alternative of the person’s rights’.21 Under the UK Mental Capacity Act, the ‘best interests’ principle is similar to the psychologist’s ‘substituted judgement method’ whereby the decision maker tries to make the choice that the person themselves would have made, if they have the capacity

16 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para 25. 17 EB (Kosovo v Secretary of State for the Home Department (2008) UKHL 41 [2009] AC 1159. 18 EB (Kosovo v Secretary of State for the Home Department (2008) UKHL 41 [2009] AC 1159 para 12. 19 Mason CJ and Deane J in an Australian High Court decision in Minister for Immigration and Ethnic Affairs v Teoh available at https://www.crin.org/en/library/legal-database/min ister-state-immigration-and-ethnic-affairs-v-teoh accessed 20 October 2018. 20 Mental Capacity Act 2005 available at http://www.legislation.gov.uk/ukpga/2005/9/co ntents accessed 10 October 2018. 21 The British Psychological Society Report by Dr Theresa Joyce Professional Practice Board of the British Psychologists Society, England and Wales, Rep 67/12/2007.

UN Convention on the Rights of the Child 17 to do so. As a part of the decision making, the Act requires the decision maker to consider the views and preferences of the person who lacks the capacity, with the overall framework being the best interests of that person, not the personal views of the decision maker.22 The outcome should therefore consider both the current and the future interests of the person, weigh them up, and decide which course of action is, on balance, the best for them. Although like the UNCRC, the Mental Capacity Act 2005 gives no clear defnition of the ‘best interests’ principle, under Section 4 the Act outlines factors to be considered in reaching the critical decision, which are referred to as ‘the statutory checklist’ in mental health circles. Of particular importance to this study is the frst factor, which calls for age consideration and the ‘appearance, condition and aspects of behaviour that might lead others to make unjustifed assumptions of what might be in his best interest’.23 Relating this requirement to this study, babies in custody are said to be in prison with their mothers arguably in their best interests. Consideration is not given to whether this is indeed in their present and future best interests, including its impact on them when they become parents themselves years later. They may not wish their families to fnd out that they were in prison during their formative years. Allowing them into prison due to their age and dependency on the convicted caregiver may arguably be found to be an unjustifed assumption. The dilemma posed by the inherent indeterminacy of the ‘best interests’ principle was not lost on Mnookin.24 In his seminal article, he observed that ‘deciding what is best for the child poses a question no less ultimate than the purpose and value of life’. Pondering on the complexity of current best interests, which are experiential considerations as opposed to future interests, which focus on developmental considerations, Mnookin observes that the conditions that make a person happy at age 7–10 may have adverse consequences at age 30.25 He wonders: Should the judge ask himself what decision will make the child happier in the next year? Or at thirty? Or at seventy? Should the judge decide by thinking about what decision the child as an adult looking back would have wanted made? In this case the preference problem is formidable, for how is the judge to compare happiness at one age with happiness at another age?26

22 Mental Capacity Act Section 4(6) (a). 23 Section 4(1)(b), Mental Capacity Act available at http://www.legislation.gov.uk/ukpga /2005/9/section/4 accessed 10 October 2019. 24 Van Bueren G, The International Law of the Rights of the Child, The Hague, Martinus Nijhoff Publishers 1995 page 45. 25 Robert Mnookin, ‘Child custody adjudication: Judicial functions in the face of indeterminacy’, Law and Contemporary Problems, 1975, 226–93, available at https://scholarship.law .duke.edu/lcp/vol39/iss3/8/ accessed 10 October 2018. 26 Robert Mnookin, ‘Child custody adjudication: Judicial functions in the face of indeterminacy’, Law and Contemporary Problems, 1975, 39, 3, 226–293, 75.

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2.4.3 ‘Right to life, survival, and development’ principle The third guiding principle is found in Article 6.27 It relates to the right to life, survival, and development. The Convention states that state parties recognise that every child has the inherent right to life, and shall ensure to the maximum extent possible the survival and healthy development of every child. In the preamble, the Convention recognises the fragile nature of the baby and states that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’. The children in the current study are therefore comprehensively covered under the provision. However, their survival and healthy development may be challenged by the circumstances obtaining in prison. The caregivers are not in a position to provide the diet, warm clothing, and medical care as well as the family setup conducive for the baby’s wellbeing, as will be explored in Chapter Four. In the preamble, the Convention observes that it is ‘convinced that the family, as the fundamental group of societies and the natural environment for growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that they can fully assume full responsibilities within the community’.

2.4.4 Right to self-expression Finally, Article 12 forms the last of the guiding principles. It provides for the child capable of forming their own opinions an opportunity to be heard and to have their views respected and taken into account by adults making decisions which affect the children.28 To achieve self-expression, the child has the right to freely express their views, feelings and wishes and to have them considered and taken seriously.29 The children in the current study are of tender age and therefore not able to articulate their grievances. However, the provision states that this can be done by the individual child directly, through a group of the children themselves, a representative or even an appropriate body. An interested party who is aware of a grave or systematic violation of children’s rights can also provide the information to the Committee on the Rights of the Child.30 This provision can be harnessed in ensuring that the voices of children accompanying incarcerated

27 Article 6 provides that state parties recognise that every child has the inherent right to life, and that they shall ensure, to the maximum extent possible, the survival and development of the child. 28 Article 6 provides that state parties recognise that every child has the inherent right to life, and that they shall ensure, to the maximum extent possible, the survival and development of the child. 29 Article 12(1). 30 Report titled ‘Optional Protocol 3 to the UNCRC’ by Together, Scottish Alliance for Children’s Rights, accessed 25 May 2016; See also United Nations Treaty Collection database report titled ‘A Communications Procedure; Third Optional Protocol to the UNCRC’ available at www.ohchr.org>OHCRHR>English>professional interest accessed 23 May 2016.

UN Convention on the Rights of the Child 19 caregivers are heard through representation and that their rights and interests are therefore not trampled upon. Article 12 applies in all matters affecting the child, for example, during immigration proceedings, housing decisions, or the child’s day-to-day home life.31 The third optional protocol is on communication rights and is anchored on this provision.32 It provides that after exhausting all domestic remedies to seek justice and failing to have their grievances addressed, children can make complaints about violation of their rights by their state to the UN Committee on the Rights of the Child.

2.5 The three clusters of rights under the UNICEF model UNICEF categorises the UNCRC Rights under three main clusters: the Right to Survival and Development; Participatory Rights; and the Protection Rights as analysed below.

2.5.1 The right to survival and development to one’s full potential The cluster on the basic Right to Survival and Development to one’s full potential is provided for under Article 6 and cuts across to the Protection Rights cluster as well. It tasks the governments with the responsibility to take all available measures to make sure children’s rights are respected, protected, and fulflled. Where necessary, this may be undertaken through a review of the domestic laws by assessing individual states’ social services, legal, health and educational systems as well as the levels of funding for these services. Governments are obliged to take all necessary steps to ensure that the minimum standards set by the Convention are being met and that they also help families in protecting children’s rights as well as creating an environment where children can grow and reach their potential. However, the conditions obtaining in prison are not conducive to the proper development of children held in the secure facilities, and governments from the various member states should endeavour to extend the protection envisaged herein to prisoners’ children too. The Convention states that every child has the inherent right to life and that state parties shall do all they can to ensure to the maximum extent possible that children survive and develop to their full potential.33 As pertains to parental guidance, Article 5 articulates that governments should respect the rights and responsibilities of families to direct and guide their children to enable them to use their

31 Article 12(2). 32 It was adopted at the 66th session of the General Assembly of the United Nations by resolution 66/138 of 19 December 2011. It opened for signature in Geneva, Switzerland, on 28 February 2012 and remains at United Nations Headquarters in New York. It came into effect on 14 April 2014. As of 8 February 2016, 25 States have ratifed OP3 CRC while 50 States have signed OP3 CRC, indicating their intention to ratify. 33 Article 6.

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rights properly as they grow. The parents are advised to deal with rights issues ‘in a manner consistent with the evolving capacities of the child’. The Convention places further responsibilities on governments to protect and assist families in their role of nurturing their children. In the preamble, the Convention states that ‘the child, for full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, considering that the child should be fully prepared to live an individual life in society’. They should be brought up in the spirit of the ideals proclaimed in the Charter of the United Nations and in particular in the spirit of peace, dignity, tolerance, freedom, equality, and solidarity.34 However, although the provisions should equally apply to incarcerated mothers, this may be curtailed by a lack of freedom and the constant presence of other inmates who arguably infuence the character of the children living in their midst. Under the Convention, every child has the right to an identity, and governments must respect and protect that right as well as prevent the child’s name, nationality, or family relationships from being changed unlawfully.35 The Convention provides that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.36 In particular, it states that: Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in particular cases such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.37 Despite the legal limitations brought about by the caregiver’s incarceration, the children of prisoners should not be exempted from enjoying these rights. The UNCRC recognises the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral, and social development in accordance with the statutes and relevant instruments of specialised agencies and international organisations concerned with the welfare of children.38 Governments must support parents by creating support services for children and giving parents the help they need to raise their children.39 The Convention observes that gov-

34 35 36 37 38 39

UN Charter Preamble. Article 8. Article 7. Article 9. Article 10. Article 18(2).

UN Convention on the Rights of the Child 21 ernments must also respect the rights and responsibilities of parents and carers to provide guidance and direction to their child as they grow up, so that they fully enjoy their rights.40 This must be done in a way that recognises the child’s increasing capacity to make their own choices. It is observed that both parents share responsibility for bringing up their child and should always consider what is best for the child.41 The Convention provides that where the child is unable to live with their family and cannot be looked after by their immediate family, the government must give them special protection and assistance. Such children have a right to proper care, and should be looked after by people who respect their ethnic group, religion, culture, and language.42 To protect a child who has been placed with a foster family or in hospital for care and protection, Article 25 provides for regular review of the appropriateness of the living arrangement in terms of assessing how the children are being treated and cared for, as well as their holistic circumstances. The care and treatment accorded should always be in the best interests of the child as envisaged by the ‘best interests’ principle under Article 3.43 Refugee children also have all the rights in the Convention, as well as the right to special protection and help if they have been forced to leave their home country and live in another.44 In order to live full and independent lives, children with any kind of disability have a right to special care and support, the best possible health that their governments can provide, clean water, nutritious food, and a clean environment, as well as education on health and wellbeing so that they can stay healthy. In recognition of the need for further support, the Convention provides that every child has the right to beneft from social security. Governments must also provide fnancial support and other benefts to families in need of assistance, taking into consideration the resources and the circumstances of the child and the person responsible for them as well as any other relevant consideration.45 The Convention also provides that every child has the right to a standard of living that is good enough to meet their physical and social needs and that supports their development. It is stated that governments must help families who cannot afford to provide for this.46 Whereas these provisions should be extended to children accompanying incarcerated caregivers in prison, in developing countries like Kenya, where the government is not able to offer fnancial support to families or child support, realisation of these provisions is a major challenge. The Convention places a high value on education and provides that every child has the right to an education, and that young people should be encouraged to reach the highest level of education they are capable of. It states that primary

40 41 42 43 44 45 46

Article 14(2). Article 18(1). Article 20. Article 25. Article 22. Article 26(1) and (2). Article 27.

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education must be free and that different forms of secondary education must be available to every child. The schools should be run in an orderly way without the use of violence, taking into account human dignity. To this end, governments should ensure that discipline policies are reviewed by the school’s administrators in order to eliminate discipline practices involving any mental or physical violence, abuse, or neglect. The Convention further states that the aim of education should be to develop every child’s personality, talents, and mental and physical abilities to the fullest potential. It should help them to respect human rights, their parents, and other people as well as to live peacefully with others. They should also be encouraged to respect the environment and their own culture as well as other cultures.47

2.5.2 Participatory rights Next is the cluster of participatory rights. Under this cluster, the Convention provides for respect for the views of the child as well as the freedom to express their opinion. It states that children have a right to obtain and share information so long as the information is not damaging to them or others. This right is to be exercised with due respect to the rights, freedoms, and reputations of others. The children shall be entitled to share the information they acquire in any way they choose, such as talking, drawing, or writing. The third optional protocol is anchored on the communication rights.48 It provides that after exhausting all domestic remedies to seek justice and failing to have their grievances addressed, children can make complaints about violation of their rights by their state to the UN Committee on the Rights of the Child. This can be done individually or as a group by the children themselves or by their representatives. An interested party who is aware of a grave or systematic violation of children’s rights can also provide the information to the Committee.49 Additionally, the Convention provides for freedom of thought, conscience, and religion, granting children the right to think and believe what they want and to practice their religion as long as they are not stopping others from enjoying their rights. The rights and duties of the parents in providing religious and

47 Article 29. 48 It was adopted at the 66th session of the General Assembly of the United Nations by resolution 66/138 of 19 December 2011. It opened for signature in Geneva, Switzerland, on 28 February 2012 and remains at United Nations Headquarters in New York. It came into effect on 14 April 2014. As of 8 February 2016, 25 States have ratifed OP3 CRC while 50 States have signed OP3 CRC, indicating their intention to ratify. 49 Report titled ‘Optional Protocol 3 to the UNCRC’ by Together, Scottish Alliance for Children’s Rights, accessed 25 May 2016, available at https://www.togetherscotland.org.uk/ about-childrens-rights/optional-protocol-3-to-the-uncrc/ accessed 30 September 2018; See also United Nations Treaty Collection database report. titled ‘A Communications Procedure; Third Optional Protocol to the UNCRC’ available at https://treaties.un.org/ accessed 30 September 2018.

UN Convention on the Rights of the Child 23 moral guidance to their children are also protected. The parents are free to bring the children up within a religious tradition, but the children may question these religious beliefs as they mature and are able to form their own views. However, although the Convention supports children’s right to examine their beliefs, it states that their right to express their beliefs must also respect the rights and freedoms of others.50 In matters concerning freedom of association, the Convention provides that children have the right to meet and join groups and organisations. However, they must ensure that they also uphold the responsibility to respect and not interfere with other people’s enjoyment of their rights, freedoms, and reputations.51 The Convention states that every child has the right to privacy. The law should protect the child’s private, family, and home life, including protecting children from unlawful attacks that harm their reputation.52 Under the Convention, children should have access to children’s books as well as the right to access information that is important to their health and wellbeing. Governments should encourage mass media, radio, television, newspapers, and internet content sources to provide information that children can understand. The material thus promoted should not harm children, and the information supplied should be in languages that minority and indigenous children can understand.

2.5.3 Protection rights The last of the UNICEF cluster is the Protection Rights. Under this cluster, the Convention provides that governments must protect children from being abducted, sold, or moved illegally to a different place in or outside their country for purposes of exploitation.53 The Convention further protects children from all forms of violence.54 It states that children have a right to be protected from being hurt or mistreated, Where a child is under the care of the state, the government must ensure that he or she is properly cared for and protected from abuse and neglect or any form of exploitation including sexual exploitation and abuse while under any form of care.55 Further to this provision, the second optional protocol provides against the sale of children, child prostitution, and child pornography. It was adopted by the United General Assembly in 2000, entering into force on 18 January 2000. Article 1 of the protocol requires state parties to protect the rights and interests of the children who are victims. It obliges state parties to pass

50 51 52 53 54 55

Article14. Article 15. Article 16. Article 11. Article 19. Article 34; See also the second optional protocol on the sale of children, child prostitution, and child pornography available at https://www.unicef-irc.org/publications/pdf/optional _protocol_eng.pdf accessed 30 September 2018.

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laws against these practices with penalties commensurate to the seriousness of the crime.56 The Convention further provides for protective measures which are effective for the establishment of social programmes to provide the necessary support for the child and to those who have the care of the child, as well as for other forms of prevention and for identifcation, reporting, referral, investigation, treatment, and follow-up of instances of child abuse.57 Without specifying the form of punishment that parents should use, the Convention explicitly prohibits any form of discipline involving violence. The disciplinary measure should be effective, appropriate to the child’s level of development and aimed at helping the children learn about family and social expectations for their behaviour. It should take the best interests of the child into consideration, and the government should review laws in light of the Convention. Article 20 on children deprived of a family environment and Article 22 on refugee children also fall in the protection category under the survival and development cluster.58 In cases where adoption becomes necessary, the Convention provides that governments must oversee the process to make sure it is safe and lawful and that it prioritises children’s best interests. Children should only be adopted outside of their country if they cannot be placed with a family in their own country.59 On child labour, the Convention provides that the government should protect children from work that is dangerous or might harm their health, education, or right to relaxation and play. There is no prohibition of children assisting parents at home in family farms or businesses in ways that are safe and appropriate to their level of development, and which comply with national labour laws.60 Governments should use all means possible to protect children from the use of harmful drugs and from being used in the drug trade. The Convention further tasks the government with taking all measures possible to protect children from abduction, sale, and traffcking.61 Governments must protect children from all other forms of exploitation, for example, the exploitation of children for political activities, by the media or for medical research.62 The Convention provides that children must not be tortured, be sentenced to the death penalty, or suffer other cruel or degrading treatment or punishment. Further, no child shall be deprived of his or her liberty unlawfully

56 The protocol was adopted by the United Nations General Assembly in 2000and entered into force on 18 January 2002. As of May 2016, 173 states are party to the protocol and another 9 states have signed but not ratifed it. 57 Article 19(2). 58 Available at https://www.unicef.org.uk/what-we-do/un-convention-child-rights/ accessed 30 September 2018. 59 Article 21. 60 Article 32. 61 Article 35. 62 Article 36.

UN Convention on the Rights of the Child 25 or arbitrarily. The arrest, detention, or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.63 Detained children shall be treated with humanity, care, and respect for the inherent dignity of the human person and in a manner that takes into account the needs of persons of his or her age. This includes being able to keep in contact with their family through correspondence and visits, save in exceptional circumstances. In addition, children must not be put in prison with adults pursuant to Article 37, which provides that ‘every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.’64 In support of representation for the child, the Convention provides for prompt access to legal and other appropriate assistance and the right to challenge the deprivation of liberty. As pertains to other forms of exploitation, the Convention requires that the government should do everything it can to protect and care for the children affected by war, in which children under 15 should not be forced or recruited to take part.65 Restricting the involvement of children in armed confict, the frst optional protocol states that the age of direct participation should be raised to 18, and it bans compulsory recruitment of children under 18. It provides that children under 18 should not take part in hostilities. It was adopted by UNCRC on 25 May 2000 and entered into force on 12 July 2002.66 In addition, the Convention recognises the need to support children who have been neglected, abused, or exploited as a result of armed confict. It provides that they should receive special help to physically and psychologically recover and reintegrate into society. Particular attention should be paid to restoring the health, self-respect, and dignity of the child.67 Article 40 seeks to establish effective systems of juvenile justice. It provides that children accused of breaking criminal law have a right to legal help in the justice system. Governments are required to set a minimum age below which children cannot be held criminally responsible. Further, the government is to guarantee that the matter is determined without delay in a fair hearing according to law or alternative proceedings and unless it is not in the best interests of the child, in the presence of the parents or the legal guardian.68 Under Article 42, state parties are obliged to take all possible measures to ensure that the principles and provisions of the UNCRC are widely known to both children and adults. Further to this requirement, the member states should

63 64 65 66

Article 37(b). Article 37; See also Article 18. Article 3. The frst optional protocol entered into force on 12 July 2002. It calls on governments to do everything feasible to ensure that members of their armed forces who are under 18 years do not take part in hostilities. As of 12 May 2016, 162 states are party to the protocol and another 14 states have signed but not ratifed it. 67 Article 39. 68 Article 40(3).

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pursue the implementation of the UNCRC as well as legislative and administrative requirements to ensure that the rights provided for under the Convention are achievable. As pertains to the economic, social, and cultural rights, state parties are obliged to do all within their reach as well as seeking international cooperation from the richer states to facilitate the passing of laws and the creation of systems that protect and promote children’s rights.69 However, it is important to point out that the UNCRC outlines its respect for superior national standards.70 It states that where a state provides better protection of children’s rights than the articles in the Convention, then those laws should apply. As such, a state with more comprehensively encompassing provisions for the realisation of children’s rights, either in its statutes or in international law in force in that state, shall not be affected by the Convention.

2.6 Conclusion This chapter has explored the provisions of the UNCRC from the lens of children of incarcerated mothers. Although some of these rights may not currently apply to the children under the study, it is to be appreciated that the chapter aimed for analysis of all the UNCRC rights which will be progressively relevant as the children mature, hence the need to analyse the provisions holistically. The majority of children falling under the category examined in this study are those accompanying incarcerated caregivers in prison, thereby making the realisation of most of the rights as envisioned under the UNCRC a challenge. For instance, under Article 30, the Convention provides that every child has the right to learn and use the language, customs, and religion of their family, whether or not these are shared by the majority of the people in the country where they live.71 However, the children whose mothers are on long-term imprisonment and whose relatives fail to come forward upon their birth in order to take over the caregiving responsibilities are often taken under the care of the state. Preservation of their identity, customs, and the language as provided for under the UNCRC may then become complicated. Article 3 of the UNCRC provides an overarching principle that the best interests of children must be a primary consideration. As we have seen, this does not mean that the child’s interests will always predominate in decision making in the sense of being the paramount consideration. Rather, it means that the child’s welfare is of great importance, which will customarily dictate the outcome and will require substantial consideration to permit a different result. This approach ought to be applied to every decision where the incarceration of a mother affects her baby. There may be cases where considerations require that the child’s welfare as a primary consideration should not dictate the outcome, but there are likely to be

69 Article 4. 70 Article 41. 71 Article 30.

UN Convention on the Rights of the Child 27 other cases where such considerations do not outweigh the importance given to the best interests of the child by Article 3. There are other Articles in the UNCRC which consider the best interests of the child specifcally in the context of the child’s separation from a parent. On matters touching on a child’s adoption or foster care placement, Article 9(4) specifcally provides that the separation for reasons other than the best interests of the child as provided for under Section 9(1) is subject to the primacy of the child’s welfare test as set out under Article 3. Article 9(1) provides protection against the removal of the child from their family unless it is for his or her own good. This may be read together with Article 20(1) providing for deprivation of family environment for the child’s best interests in cases of child abuse, neglect, or cruelty from the parent(s) or legal guardian(s). Additionally, Article 9(3) provides for the custody of the child and the need to maintain contact with both parents unless it is not in their best interests to do so. Article 21 provides that the best interests of the child should come frst and that the child capable of forming their own opinion should be listened to and their views taken into account in deciding where they live. Arguably, family reunion should be pursued as far as possible through non-custodial measures, with adoption being sought as the very last resort. In a resolution by the 8th UN Congress, imprisonment of pregnant women and mothers with small children is discouraged.72 Articles 5 and 18(1) grant the parents primary decision-making responsibilities for their children in pursuit of the overall spirit of the UNCRC. The focus by the parents should be in ensuring that in all decisions they make in matters touching on the child, the best interests of the child are the basic concern as opposed to their own wishes. Where the parents fail to ensure this, Article 9(1) provides that the state may intervene to protect the child’s interests. The Convention envisions that the welfare of every child should be accorded primary consideration in all matters touching on children owing to their dependence on the society for initial survival. But as stated earlier, the complexity of the issue of children accompanying an imprisoned caregiver is not specifcally addressed, leaving it to individual member states to determine how to go about the issue. Marlene Alejos observes that the practices are manifold and that there are many tensions in the area, with the research data being fragmented. She further points out that national legislation is normally very circumspect if not silent on issues touching on deprivation of liberty of pregnant women and mothers with babies or young children.73 On the divergent interests of the child and the mother, Alejos observes that babies are invisible to the legal system as well as the prison system and points out that prison is not a positive environment for a baby.

72 The Resolution stated that ‘the use of imprisonment of certain categories of offenders such as pregnant women or mothers with infants or small children should be restricted and a special effort made to avoid the extended use of imprisonment as a sanction for these categories’. 73 Alejos Marlene, ‘Babies and small children residing in prison’, Geneva Switzerland Quaker United Nations Offce available at http://www.quono.org/geneva/pdf/humanrights/w omen-in-prison/200503 accessed 15 September 2016.

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UN Convention on the Rights of the Child

This study will argue that there is a fundamental confict between the rights legally guaranteed to children in Kenya and their realisation in practice. In itself, this is not a novel or disputed observation. In 2016, when examining Kenya’s compliance with the Convention, the UNCRC Committee observed that, despite the development of a legal institutional framework and supporting policy statements, the lack of effective implementation continued to curtail the realisation of children’s rights.74 The Committee’s report identifed a number of factors that inhibited progress. These highlighted the lack of fnancial investment in services for children, the low rate of school enrolment and the poor standard of education provided, and the prevalence of traditional values that attach a low status to children within the family and undermine their consequent level of entitlement to scarce resources. It also drew attention to Kenya’s failure to implement the third optional protocol that set out the means by which children’s communication rights under the UNCRC could be enforced. But this study focuses on the specifc circumstances that infringe the rights of a relatively small but severely disadvantaged group of young children, those whose mothers are imprisoned for criminal offences. The rights and interests of these children are not just inhibited by the systemic challenges identifed by the UNCRC Committee, but are effectively rendered irrelevant to the criminal process and thereby become invisible to those engaged in sentencing their mothers. This arises from a confict between two competing duties of care owed by the state to its citizens: the duty to protect the public from criminal harm and the duty to uphold the rights of children guaranteed under the UNCRC. The latter is an emerging discipline and refects a more recent addition to the functions performed by the state. As a consequence, its authority and power to shape and infuence established practices, such as state punishment, is arguably ambiguous and lacking guidance. It is not, however, the ambition of this research to develop a jurisprudential study that examines the competing moral claims of citizens and their resolution in state practices. Rather, the aim is more pragmatic, and the scope is limited to sentencing caregivers. As noted in Chapter One, more than 350 children accompany their mothers into Kenyan prisons, and unknown numbers are affected by being left in the community without family support.75 The next chapter will report on a body of literature drawn from various jurisdictions that show how such sentences can undermine the rights of the child, including the right to life. In light of this powerful evidence, it will be argued that in jurisdictions that are signatories to the UNCRC, the criminal process cannot assume that it has the moral authority to ignore the devastating impact its decisions have on innocent children. Adopting this

74 The combined Third and Fifth periodical report of Kenya’s compliance with UNCRC, Geneva 21 January 2016, available at https://www.ohchr.org/EN/newsEvents/Pages/Dis playNews.aspx?NewsID=16980&LangID=E accessed 20 January 2019. 75 A research study titled ‘Hundreds of children under four live in prison with their mothers’ conducted in Kenya by Faraja Trust at Lang’ata Prison in February 2012 available at www .nation.go.ke>news accessed 8 September 2018.

UN Convention on the Rights of the Child 29 perspective alongside the principle of parsimony in sentencing, which provides that the punishment must be the minimum necessary to achieve the purpose of sentencing, the remaining chapters will explore and develop sentencing practices that reduce the obiter harms to children. Some recent decisions from the Supreme Court demonstrate a clear willingness to accord due consideration to children’s rights, as per the spirit of the UNCRC, and this is evidenced internationally by the almost global ratifcation of the UNCRC. Only the USA is yet to ratify it. Guided by the UNCRC monitoring committee’s comments, the expectation that state parties will report sustained progress is likely to impose international pressure that will help to counter and bridge the chasm between the existence of international, regional, and domestic safeguards and their rigorous and effective use in practice. As Professor Jane Fortin correctly observes in the preface to her book,76 despite a full commitment to the notion that children have rights, ‘many of those working with legal principles affecting children may be unclear how to promote such a notion in a way that enhances children’s lives at the practical level, rather than allowing it to remain a theoretical ideal’.77 If extensively disseminated to the trial courts as a mandatory legal requirement, the emerging jurisprudence from the higher courts, coupled with a positive change of attitude and the monitoring mechanism by UNCRC, will continue to gather encouraging momentum as no state wishes to be marked out for not effecting the aforementioned recommendations aimed at evolving human rights achievements globally. This study is concerned, however, that the UNCRC lacks any provision specifcally focusing on dependent children whose sole caregivers are imprisoned, thereby compelling the children to either accompany the incarcerated mothers or risk being left behind in the community. Lucy Nduta, the head social worker at The Nest Children’s Home in Limuru, Kenya observes that: Women thrown into confict with the law often abandon their children in the middle of nowhere and they end up being street urchins due to lack of care…The home, started by German expatriate Irene Baumgartner in 1994, was initially aimed at rehabilitating street families, but upon interrogating the children, she discovered that most ended up homeless after their mothers fell afoul of the law…’78 The study argues that the rights and interests of these children, in both the developed and developing countries, need explicit protection as they are especially vulnerable to escalating harms.

76 Jane Fortin, Children’s Rights and the Developing Law (Law in Context), 3rd Edition (2009) ix. 77 Jane Fortin, Children’s Rights and the Developing Law (Law in Context), 3rd Edition (2009) ix. 78 Saturday Nation Newspaper October 17, 2020, 3 in the article by Anita Chepkoech titled ‘children with mothers in jail fnd refuge at charity.’

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Literature review on the rights of the child, mothers and sentencing

3.1 Chapter abstract In spite of domestic, regional, and international laws protecting children’s rights and interests, thousands of children worldwide spend their formative years in prison with their mothers, with many others left behind as the caregivers serve custodial sentences. The focus on the convicted mothers shifts the lens from the core of this study: the welfare of the child in a secure facility whose rights and interests continue to be infringed. It is imperative, therefore, that the reviewed literature herein engages with children of incarcerated mothers both in and outside prison. To this end, the study explores three main focal points within the literature: the sentencing of women generally and the limited rehabilitative impacts of imprisonment; the consequences of separation on the children the mother leaves outside prison as she serves the custodial sentence; and the practice of imprisoning children with their convicted mothers, including the use of Mother and Baby Units, which the current study suggests renaming to Mother with Baby Units to avert criminalising the baby too, among other proposed solutions to the predicament of prisoners’ children. The last section situates the current research within existing knowledge in the feld.

3.2 Introduction While there is a paucity of literature focusing on the rights of the child held in custody, there is relevant research from the larger body of literature focusing on imprisoned women and also on juvenile justice. Internationally, most states are arguably aware of the innocence of the children of convicted mothers and the unsuitability of a prison regime for a child’s proper growth and development. However, they lack clear guidelines on whether the child should be separated from the convicted caregiver or should accompany her into prison. In addition, governments fail to specifcally task the judiciary with the responsibility to protect the child’s rights when sentencing the mother for an offence attracting a custodial penalty, leaving the matter to the discretion of the sentencer, who may opt not to inquire about the offender’s dependent children. More often than not, the state focuses on punishing the accused, leaving dependent children’s wellbeing to be

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sorted out by prison authorities. As previously stated, the prison is only required to concern itself with the convicted mother and the service of her pronounced sentence as opposed to the child’s rights and interests, which has resulted in many babies spending their formative years behind prison bars. As will be explored later, in an African context and specifcally in Kenya, a mother may be the sole caregiver to her several children. Additionally, unlike many developed countries, the Kenyan government does not provide child support to parents, largely due to economic diffculties. Incarcerating the mother therefore necessarily subjects the children she leaves behind to extreme hardship and exposes the child she may take into prison with her to the congestion and hardship therein, as explored in Chapter Four. Whilst some of the recommended alternative practices may be desirable in a developing country like Kenya, these practices may not be feasible due to the economic challenges the country faces. Nevertheless, although the same should be progressively pursued, there is a need to devise practices and solutions that fall within the limits of the country’s current social and political dispensation and economic resources in an attempt to remedy the hardship and disadvantage to which these children are subjected.

3.3 Literature review on the imprisonment of women The geographical scope of the literature explored in this chapter focuses principally on incarcerated mothers with caregiving responsibilities to dependent children. Much of the work in this area in both developed countries and in developing countries like Kenya suggests that incarcerating a mother rarely achieves a rehabilitative purpose but rather predisposes her and her children to future offending. There is a paucity of documented work in the specifc feld of study in Africa, which means that much of the accumulated knowledge in this feld is drawn from Western jurisdictions. In his work on comparative criminal justice, David Nelken questions whether a society can successfully borrow or copy reforms from another jurisdiction, and how practices embedded in different cultures can be transferable on the face of ‘real differences worldwide on the proper role of criminal justice’.1 However, being a developing country that attained its independence in 1963 and borrowed all its written laws from Britain mutatis mutandis, Kenya’s criminal justice system must seek to learn from progressive practices elsewhere in the world, not to copy but to apply and tailor them to enable them to ft into the cultural and social realities of the country. It is important to point out that the main yardstick against which policies and practices will be assessed in this study is the United Nations Convention on the Rights of the Child (UNCRC), which is in force in Kenya and in the developed countries from where most of the themes explored herein originate.

1 David Nelken, Comparative Criminal Justice: Making Sense of Differences, Los Angeles, California (2010) 1 available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4_-_Co mparative_Criminal_Justice(1).pdf accessed 30 December 2018.

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Consequently, the standards that pertain to the treatment of prisoners’ children are comparable despite differences in the economic and social standing of the individual country. Borrowing from the words of David Nelken, the current study may therefore be said to be concerned to ‘cooperate and collaborate in the face of common threat’.2 Although David Nelken argues against a ‘global or world view’, he underscores the need to appreciate and understand the diversity of views and perceptions from different jurisdictions, and to understand how and why these variations prevail. However, he cautions that ‘even if there is no view from nowhere, this does not prove that all starting points are of equal value. And seeing only what is useful for us is a poor way of acknowledging and engaging with the other’.3 The socio-cultural features of Kenyan society, explored in Chapter Four, set out the context in which developments from elsewhere must be carefully situated. The present study thus facilitates a comparative exploration across cultures in order to ‘borrow criminal justice innovation’4 whilst being aware of the differences, as well as the commonalities, that exist. Nelken observes that ‘the obsession with crime and punishment, in which a large part of the news media is increasingly taken up, not only worries us with criminality next door, but also (selectively) with that taking place in the global village’.5 Across Western jurisdictions, there is a body of literature on the lack of attention paid to the gendered needs of convicted women. A routine observation has been that penal systems are developed with the male offender in mind and that the minority status of women typically leads to limited opportunities and harsher treatment.6 One area in which this is well documented concerns the imprisonment of women where a series of disadvantages are repeatedly observed. For example, the relatively small number of women serving custodial sentences has resulted in the provision of relatively few women’s prisons that are widely dispersed geographically.7 In England and Wales, women serve their sentences in establishments located a long distance from their home. This has detrimental consequences for visits from their families and makes resettlement in the community

2 David Nelken, Comparative Criminal Justice: Making Sense of Differences, Los Angeles, California (2010) 12 available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4_-_Co mparative_Criminal_Justice(1).pdf accessed 30 December 2018. 3 David Nelken, Comparative Criminal Justice: Making Sense of Differences, Los Angeles, California (2010) 12 available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4_-_Co mparative_Criminal_Justice(1).pdf accessed 30 December 2018. 4 David Nelken, Comparative Criminal Justice: Making Sense of Differences, Los Angeles, California (2010) 12 available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4_-_Co mparative_Criminal_Justice(1).pdf accessed 30 December 2018. 5 David Nelken, Comparative Criminal Justice: Making Sense of Differences, Los Angeles, California (2010) available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4_-_Compara tive_Criminal_Justice(1).pdf accessed 30 December 2018. 6 Pat Carlen, (2012), ‘Women Imprisonment: An Introduction to the Bangkok Rules’, The British Journal of Criminology, Vol 3 166. 7 Diane Caddle and Debbie Crisp (1997) ‘Research Findings No. 38, Mothers in Prison’, Home Offce Research and Statistics Directorate.

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more problematic.8 In addition, the small numbers of women in prison result in fewer educational and other rehabilitative opportunities as compared with those for men.9 Aside from their minority status, women’s experience of imprisonment has also been shown to be qualitatively different from that of men. The lived experiences of women prisoners refect high levels of social disadvantage and abuse. In England and Wales, it is estimated that one in three prisoners will have suffered violent or sexual abuse as adults or as children.10 The population of women in prison also refects high levels of mental and physical health problems and persistent drug misuse.11 Their levels of self-harm are fve times the levels reported in male prisons.12 The pain of women’s experiences in prison refects their social experiences prior to custody.13 In their study of long-term imprisonment, Benjamin Crewe, Susannah Hulley, and Serena Wright found that although the sampled men and women experienced some common problems, such as ‘missing someone, worrying about people outside and having to follow other people’s rules and orders’, lack of emotional and physical privacy affected women more than men. The study concluded that women experienced much more pain from having been betrayed by those they trusted and loved, and also blamed themselves more for their predicament. The women were therefore found to have experienced more ‘inward facing violence, such as self-harm and suicidal ideation’ than their male counterparts. The loss of contact was also found to be more severe for women, especially the inability to play their mothering role. One of the participants pointed out that the hardest thing for me when I came to jail was nobody told me how to not be a mum – I had spent so many years being a mum, I didn’t know how to

8 Jean Corston (2007), The Corston Report: A Review of Women with Particular Vulnerabilities in the Criminal Justice System, London: Home Offce. f 9 Elaine Player, (2014) ‘Women in the Criminal Justice System: The Triumph of Inertia’, Criminology and Criminal Justice 14(3) 276–297. 10 Stephanie Covington (2014), ‘Creating Gender-Responsive and Trauma-Informed Services for Women in the Justice System’, Magistrate 70 (5): 2–3. Prison Reform Trust (2017). ‘“There’s a reason we’re in trouble”: Domestic Abuse as a Driver to Women’s Offending’ at http:// www.prisonreformtrust.org.uk/Portals/0/Documents/Domestic_abuse_report_fnal_lo.pdf 11 Emma Plugge, Nicola Douglas, and Ray Fitzpatrick (2006) The Health of Women in Prison: Study Findings, Oxford: Department of Public Health, University of Oxford available at: http://www.publichealth.ox.ac.uk/research/prison/2007-02-13.6702780065 accessed 4 April 2019; Nicola Singleton, Howard Meltzer, and Rebecca Gatward (1998), Psychiatric Morbidity among Prisoners in England and Wales, London: Offce for National Statistics. 12 Ministry of Justice (2018) ‘Safety in Custody: Quarterly Update to March 2018’, available at https://www.gov.uk/government/statistics/safety-in-custody-quarterly-update-to-m arch-2018 accessed 10 April 2019. 13 Benjamin Crewe, Susannah Hulley, and Serena Wright (2017) ‘The Gendered Pains of Life Experience’, British Journal of Criminology 9 January https://doi.org/10.1093/bjc/ azw088; E. Genders and E. Player (1987), ‘Women in Prison: The Treatment, the Control and the Experience’, in Gender, Crime and Justice, eds Pat Carlen and Ann Worrall, Open University 161–75.

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Literature review on the rights of the child switch that off […] And like it never goes away; that missing them, and that kind of ache.

Whilst the research presented here refects evidence drawn from England and Wales, the patterns of disadvantage have been documented in other Western countries such as the United States, Canada, and Australia.14 Similar patterns are also refected in Kenya, as will be explored in Chapter Four. Most women prisoners across different jurisdictions serve relatively short custodial sentences. For example, in England and Wales, around seven out of ten women sentenced to custody receive prison terms of less than 12 months.15 Short sentences are increasingly recognised as being counterproductive in relation to the obiter and collateral punishment they generate.16 Women typically serve too short a time to undertake any rehabilitative programmes but long enough to lose tenancies on their homes or to face accrued rent arrears on their release. Short custodial sentences are also the least effective of all sentencing options in preventing reoffending.17 A dominant focus in the development of reform for women’s treatment in the criminal justice system is the demand for fewer short custodial sentences.18 As these women do not represent a risk of serious harm to the public, a more proportionate response is provided by a range of fexible community penalties. For the small population of women serving longer periods in custody for more serious offences, reform has tended to focus on developing prison regimes that are women-centred or gender responsive. It marks a shift away from penal policy devised for the male majority and then superimposed upon the female population. Instead, it emphasises the need to acknowledge and respond to the distinctive pathways that women follow into crime and, in particular, the common experience of trauma that has shaped their life histories. In England and Wales, the Corston Report set out a clear plan for reform that argued for a much reduced

14 Task Force on Federally Sentenced Women (1990) ‘Creating Choices: Task Force on Federally Sentenced Women’, Correctional Services Canada. M. Chesney-Lind and J. Pollock J (1995), ‘Women’s Prisons: Equality with a Vengeance’, in Alida V. Merlo and Joyceln M. Pollock (eds). Women, Law, and Social Control, Boston, MA: Allyn and Bacon. 15 Ministry of Justice (2018b) ‘Prison Population Figures 2018’, London: Ministry of Justice https://www.gov.uk/government/statistics/prison-population-fgures-2018. 16 Ministry of Justice (2013) ‘A Distinct Approach: A Guide to Working with Women Offenders’, London: Ministry of Justice, available at: https://www.justice.gov.uk/downloads/pub lications/noms/2012/guide-working-with-women-offenders.pdf. 17 Ministry of Justice (2018) ‘Proven Re-offending Statistics’, available at https://www.gov .uk/government/statistics/proven-reoffending-statistics-july-2016-to-september-2016 accessed 4 April 2019. 18 Ministry of Justice (2018a) ‘Female Offender Strategy’, London, Ministry of Justice Cm 9642 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/fle/719819/female-offender-strategy.pdf accessed 4 April 2019; Player, E. (2014) ‘Women in the Criminal Justice System: The Triumph of Inertia’, Criminology and Criminal Justice 14(3) 276–297.

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population of women in custody and a reconfgured penal estate that comprised small custodial units, located closer to the women’s home communities and children, rather than large-scale institutions that mimicked the model designed for men.19 Although many of Jean Corston’s recommendations were infuential in shaping subsequent developments, the major restructuring of women’s prisons was not implemented. Nonetheless, the importance of treating women differently to men in prison has remained an axiom of good practice and reinforces the principle that equal treatment is built on the recognition of difference and is not achieved by so-called gender-blind strategies that treat men and women identically. Undoubtedly, feminist criminologists and practitioners have been infuential in promoting this ideology and initiating change not only in the UK but across a number of predominantly English-speaking countries, notably Canada, Australia, and the United States. However, across all of these jurisdictions, progress has been slow and faltering. Rehabilitative initiatives that have attempted to address women’s needs in ways that empower their independence have faced conficting pressures from dominant penal narratives that promote populist constructions of crime and punishment. Arguably the most ambitious project to transform women’s imprisonment, embarked upon by Canada’s Correctional Service in the 1990s, suffered the most dramatic reversal.20 This was mainly as a result of defning women prisoners almost solely as victims and neglecting the fact that they might also be law breakers. But far smaller programmes also face more mundane resistance that can undermine their functional integrity.21 Systemic problems can also arise when rehabilitative initiatives widen the appeal of imprisonment to sentencers and unwittingly become a justifcation to extend the reach of penal control. The potential to mask the fundamentally harmful and destructive consequences of custody is fraught with dangers, and it is not surprising that for some feminist criminologists, rehabilitation in prison is a contradiction in terms and consequently doomed to failure.22 Commenting on both the high levels of

19 Jean Corston (2007) The Corston Report: A Review of Women with Particular Vulnerabilities in the Criminal Justice System, London: Home Offce available at http://www.justice.gov.uk /publications/docs/corston-report-march-2007.pdf accessed 4 April 2019. 20 Correctional Services of Canada, Task Force on Federally Sentenced Women (1990) Creating Choices: The Report of the Task Force on Federally Sentenced Women, Correctional Services of Canada, Ottawa, Ontario; Stephanie Hayman (2006) Imprisoning Our Sisters: The New Federal Women’s Prisons in Canada, Montreal, Canada: McGill-Queen’s University Press. 21 Elaine Player (2016), ‘Offender Personality Disorder (OPD) Pathway and its Implications for Women in Prison in England and Wales’, Sage Journals Vol 91 issue 5 (2016) 568–589 available at https://journals.sagepub.com/doi/abs/10.1177/1462474516672883 accessed 29 December 2018; K. Hannah-Moffat (2004), ‘Criminogenic Need and the Transformative Risk Subject: Hybridizations of Risk/Need’, Penality, Punishment and Society, 7(1): 2951. 22 Pat Carlen and Jacqueline Tombs (2006), ‘Reconfgurations of Penality: The Ongoing Case of the Women's Imprisonment and Reintegration Industries’, Theoretical Criminology 10(3) 337-360; S. Hayman (2006), Imprisoning Our Sisters: The New Federal Women’s Prisons in Canada, Montreal, Canada: McGill-Queen’s University Press.

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recidivism and the high levels of disadvantage that characterise the backgrounds of women prisoners in Australia, Eileen Baldry casts doubt on the legitimacy and viability of tasking the prison with so many conficting purposes, namely ‘punitive, deterrent, protective and rehabilitative’.23 She observes that ‘many thousands of these releases are back in prison in less than two years: on the prison conveyor belt cycling in and out’.24 She notes that ‘the majority of prisoners are from severely disadvantaged backgrounds, with serious health problems’. The wider penological literature, principally rooted in the study of male prisoners, also refects this tension. Prisons are designed to impose a punitive experience that extends well beyond the loss of physical liberty. And yet there coexists a stream of scholarly research that identifes examples of prisoners gaining benefts from their time in custody. Shadd Maruna’s work gives various accounts of offenders who have desisted from criminal activities and even helped others still caught up in criminality to believe in the possibility of change.25 However, he recognises the diffculties individuals face in making this happen: ‘those who have reformed have had to relinquish an old self and invent a new’, a process he refers to as achieving ‘generative goals’. In his foreword to Maruna’s work, Hans Toch observes that ‘the individual is only truly reformed when he or she acquire new purpose, a new set of meaning and a satisfying role … When we support any of these developments, we buttress change’.26 But Maruna also recognises that doubts expressed by the wider community can play a signifcant role in inhibiting the process of change and argues that there is a need to ‘understand the stories they [those trying to reform] tell … the story making process has the capacity to transform lives’. However, inmates’ stories may arguably be motivated in bad faith, as exemplifed by John McVicar’s autobiography, which was written solely to secure his release on parole;27 and the case of Jack Henry Abbott, the American criminal author sent back to prison after stabbing a waiter to death just two weeks after being paroled from prison due to high-ranking lobbying.28 Biographical

23 Eileen Baldry (2007) 2, ‘The Booming Industry: Australian Prisons’ available at https:/ /www.researchgate.net/publication/242569049_The_Booming_Industry_Australian_Pr isons accessed 17 April 2019. 24 Eileen Baldry (2007) 2, ‘The Booming Industry: Australian Prisons’ available at https:/ /www.researchgate.net/publication/242569049_The_Booming_Industry_Australian_Pr isons accessed 17 April 2019. 25 Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild their Lives, Washington D.C., American Psychology Association c2001 available at https://www.amazon.com/Ma king-Good-Ex-Convicts-Reform-Rebuild/dp/1557987319 accessed 30 December 2018. 26 Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild their Lives, Washington D.C., American Psychology Association c2001 available at https://www.amazon.com/Ma king-Good-Ex-Convicts-Reform-Rebuild/dp/1557987319 accessed 30 December 2018. 27 John McVicar (1974), McVicar by Himself, Artnik. 28 Jack Henry Abbott (1991), In the Belly of the Beast: Letters from Prison, Vintage. Abbott, who considered himself a state-raised convict, was initially convicted of bank robbery, forgery, and manslaughter, but his memoirs, In the Belly of the Beast, received very positive reviews, leading to his release from prison in 1981. After being convicted again for the fatal

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accounts can also testify to the transformative impact that imprisonment can produce. From the wretchedness of his prison cell, Aleksandr Solzhenitsyn expresses gratitude for his enlightenment: ‘bless you prison, bless you for being in my life. For there, lying upon the rotting straw, I came to realize that the object of life is not prosperity as we are made to believe, but the maturity of human soul’.29 But leaving aside the possibility that benefcial insights can be gained from harsh punishment, specialist regimes that offer therapeutic opportunities have been shown to be capable of improving the psychological wellbeing of prisoners and reducing their risk of reoffending.30 In Kenya, investment in rehabilitative programs in prisons falls a long way short of the examples discussed here. However, there is a degree of congruence between the experience of women prisoners in Kenya and the themes explored in the wider literature on women’s imprisonment. Custodial sentences, as a form of state punishment in Kenya, have evolved in relation to the problem of male offending, and little consideration has been given to the ways in which custodial penalties affect women and their children. Similarly, the gender-specifc pathways that women follow into prison, and the fact that most women prisoners have committed non-violent offences and are sentenced to short sentences, resonates with the realities of sentencing in Kenyan courts. Research exploring the appropriateness of non-custodial sentences for women offenders in Kenya observed that crimes committed by women arise from social and economic disadvantage, which leads them to struggle to support their families, although the same could be said of many of the men who offend.31 Although it may be argued that committing crime for income should not negate the illegality, one of the probation offcers interviewed for this study stated that ‘many female offenders commit crimes when looking for a source of income and not as a result of criminal tendencies’.32 The study noted that a ‘majority of female offenders pose no risk to the society’ and states that: Non-custodial measures and sanctions which take account of women’s distinctive needs enable women to meet their caretaking obligations at the same time as serving their sentence and can be far more effective at addressing

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stabbing, he committed suicide in 2002. Available at https://criminalminds.fandom.com/ wiki/Jack_Henry_Abbott accessed 22 May 2019. Zolzhenitsyn, ‘Suffering and the Meaning of Life’, available at https://www.intellectualt akeout.org/blog/solzhenitsyn-suffering-and-meaning-life. Elaine Genders and Elaine Player (1994), Grendon: A Study of a Therapeutic Prison, Oxford, Clarendon Press. Penal Reform International, ‘Community Service for Women: Lessons and Recommendations Based on a Kenyan Study’, available at https://s16889.pcdn.co/wp-content/uploads /2016/12/PRI-Kenya-report-summary-briefng_WEB_rev.pdfhttps:/accessed 28 September 2016. Penal Reform International, ‘Community Service For Women: Lessons and Recommendations Based on a Kenyan Study’, available at community-service-women-WEB.pdf accessed 19 November 2016.

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Literature review on the rights of the child the root causes of their offending than time spent in prison. It is worth emphasizing that treating female offenders differently from their male counterparts is not unfair or discriminatory. In fact, the reverse is true. Women offenders have distinctive needs that must be identifed and addressed so that they can receive equitable treatment.33

Nevertheless, a different school of thought argues that the assessment of harm should be undertaken with caution since it may not be physically eminent, for example, in violent crimes, but emotionally devastating. For example, in victimless crimes or sexual offences, the harm caused by some offenders may not be obvious. However, Mike Maguire points out that if the offence in issue is a property crime that took place in a dwelling house, then the effect of the trauma experienced may have far-reaching psychological repercussions on those affected. In a study he conducted on 322 victims of residential burglary in their homes at Thames Valley police force area between 1977 and 1979, soon after the burglary was reported to the police, it was found that the event destabilised the lifestyle of those attacked. In addition, a third of them reported being affected to a point whereby they required intervention to enable them to regain their usual ability to cope.34 The impact of burglary is argued to be much more psychological than fnancial according to a similar 2014 survey on 545 victims of burglary commissioned by the UK victim support and direct line. Whereas 40% of the victims viewed their fnancial loss as most impactful, 60% were found to be more affected emotionally with 57% of them fnding diffculties falling asleep out of feelings such as worry, shock, anger and fear of falling victims again. 21% of those sampled had children under 16 in the house at the time of the attack and 10% of them feared for their children.35 In yet another 1996 study involving 68 victims in America, half of the victims likened the attack to a personal violation, with one of them cleaning their clothes three times, while one frst grader hid their favourite toy before leaving for school. The researcher, a victim of burglary himself stated that ‘the majority of the victims say they will never have the same feeling of security and inviolability that they had in the past’.36 Arguably,

33 Penal Reform International, ‘Community Service for Women: Lessons and Recommendations Based on a Kenyan Study’, available at https://s16889.pcdn.co/wp-content/upload s/2016/12/PRI-Kenya-report-summary-briefng_WEB_rev.pdfhttps:/ Accessed 28 September 18. 34 Mike Maguire, ‘The Impact of Burglary Upon Victims’, British Journal of Criminology, Delinquency and Deviant Social Behaviour, Jul 1, (1980) vol 20(3) available athttps:// academic.oup.com/bjc/article-abstract/20/3/261/486116?redirectedFrom=fulltext accessed 29 December 2018. 35 Mike Maguire, ‘The Impact of Burglary Upon Victims’, British Journal of Criminology, Delinquency and Deviant Social Behaviour, Jul 1, (1980) vol 20(3) available athttps:// academic.oup.com/bjc/article-abstract/20/3/261/486116?redirectedFrom=fulltext accessed 29 December 2018. 36 Billie Corder, ‘Beating the Burglary Blues’, Psychology Today, available at https://www.psy chologytoday.com/us/articles/199605/beating-the-burglary-blues accessed 28 December 2018.

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female offenders can also commit these crimes, and the court should examine such psychological trauma and the future ripple effects of seemingly victimless crimes when sentencing offenders, even as it seeks the best ways of protecting dependent children. Indeed, research on the sentencing of women suggests that sentencers are acutely aware of the different considerations that come into play when sentencing women rather than men. In England and Wales, research by Hedderman and Gelsthorpe demonstrates that magistrates routinely describe women offenders as ‘troubled’ and men as ‘troublesome’ and confess that they are more likely to consider factors of personal mitigation when sentencing women than when sentencing men.37 In a later study of sentencing practices in England and Wales, most of the magistrates interviewed agreed on the importance of taking into consideration the caring responsibilities of the defendant, irrespective of gender. However, it was again acknowledged that in most cases where this issue was raised, the defendant was female. One of the magistrates stated that: what will always be an important factor for me … is the impact of a custodial sentence on any child who’s being cared for by the woman, or with whom the woman has some sort of relationship, such as contact … I tend to place a lot of weight, and probably in criminal terms a disproportionate amount of weight, on the interests of third parties like that. That is more likely to operate with a woman, but by no means is exclusive to women.38 Yet, as noted by Elaine Player, there are countervailing forces that urge courts to adopt a strictly retributive approach that is supposedly gender blind and calibrated strictly by principles of proportionality.39 Commenting on the increasing numbers of women incarcerated in the United States, Meda Chesney-Lind describes how arguments for gender equality have been subverted to produce ‘vengeful equity’, whereby equal treatment has been interpreted to mean identical treatment and translated into practice as undifferentiated punitiveness.40 This view succinctly captures the dilemma noted by Paul Rock in his work that explores shifting attitudes towards female criminals. He notes that campaigners and policy makers tend opportunistically to argue the case for equity or the case for difference, depending on the circumstances.41

37 Carol Hedderman and Loraine Gelsthorpe (eds) (1997), Understanding the Sentencing of Women. Home Offce.Research Study No. 170. London: Home Offce. 38 Carol Hedderman and Loraine Gelsthorpe (eds) (1997), Understanding the Sentencing of Women. Home OffceResearch Study No. 170. London: Home Offce. 39 Elaine Player (2014), ‘Women in the Criminal Justice System: The Triumph of Inertia’, Criminology & Criminal Justice 14(3) 276–297. 40 Chesney-Lind M (2006), ‘Patriarchy, Crime and Justice: Feminist Criminology in an Era of Backlash’,Feminist Criminology 1(6): 6–26. 41 Paul Rock (1996), Reconstructing a Women’s Prison: The Holloway Redevelopment Project, 1968–1988, Clarendon Studies in Criminology.

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What clearly translates across continents is the fact that women remain the primary caregivers to children and that the impact of parental imprisonment on children is most detrimental when it is their mother rather than their father who is sentenced to custody.42 The common pattern across countries, irrespective of their level of development, is that in most instances, while children of male prisoners are left in the care of their mothers, children of female prisoners are mostly cared for not by their fathers but by other members of the immediate or extended family.43 A recent UN statement observed that: Depriving women with caretaking responsibilities of their liberty has a harmful impact on children and other family members within their care. Many women offenders suffer from trauma of domestic violence or sexual abuse, have mental health needs, or are drug or alcohol dependent. Diverting these women to a suitable gender appropriate treatment programme would address their needs much more effectively than the harsh environment of prison which often does not help but hinder their social integration.44 Yet only recently has attention been paid to the duty owed by the state to the care of children affected by the imprisonment of a parent. Philbrick, Ayre, and Lynn argue that stakeholders in the justice system need to be aware of the cascading implications of the decision to incarcerate a parent of dependent children.45 They echo Baroness Hale’s sentiments that ‘everyone who plays a part, either in the criminal justice system or in the parenting and education of the children involved, needs to recognise the needs of these children and make proper provisions for them’.46 Yet Nigel Walker concludes that efforts made to minimise the obiter punishment inficted on such children are a ‘weak palliative’ in relation to the unregulated effects that befall them.47 Recognition of a child’s rights under the

42 Daniella H. Dallaire (2007), ‘Incarcerated Mothers and Fathers: A Comparison of Risks for Children and Families’, Onlinelibrary.wiley.com/doi. 43 Daniella H. Dallaire (2007) 2, ‘Incarcerated Mothers and Fathers: A Comparison of Risks for Children and Families’, Onlinelibrary.wiley.com/doi; See also Gabel, (1992); Dressel and Barnhill, (1994); Sheridan, (1996); Guarsanky et al., (1998), Healy, Foley, and Walsh, (1999). 44 UN Rules on the treatment of Women Prisoners available at www.en.org/crim/library/l egal-database/un-rules; See also Shona Minson, Rebecca Nadin, and Jenny Earle, ‘Sentencing Of Mothers: Improving the Sentencing Process and Outcomes for Women with Dependent Children’, Prison Reform Trust November (2015). 45 Kate Philbrick, Liz Ayre, and Hannah Lynn (2016), Children of Imprisoned Parents, European Perspective on Good Practice, Second Edition, Children of Prisoners Europe (COPE) available at https://childhub.org/en/child-protection-online-library/children-imprisoned -parents-european-perspectives-good-practice accessed 17 April 2019. 46 Hale, Baroness, ‘Conference Outcome Report in Coping with a Parent in Prison: An Agenda for Policy Reform’, COPE Special Edition Newsletter (2012) 2, available athttps://www.s cribd.com/document/299577114/Children-of-Prisoners. 47 Walker, N. Why Punish? (1991) 107, Oxford University Press.

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UNCRC, together with the fact that they are not culpable for the offence committed by their mother, provides a strong justifcation for their welfare and best interests to be given greater weight in shaping the duty of the state to protect them from harm. This perspective, however, has been weakly represented in the literature and given scant attention by policy makers. Instead, there has been a narrow focus on the question of whether babies and young children should be separated from their imprisoned mother or whether their interests are best served by accompanying her into custody. As pertains to sentencing and gender generally, there is a body of qualifed literature on the lack of attention to the gendered needs of convicted women. In a paper on the role and use of imprisonment presented at a staff conference on women in a correction in Australia, Judith Miller-Warke noted that there are some primary faws in the broad penal policy and practice platform.48 She pointed out that the platform lacks a cohesive and targeted approach as it is designed for male offenders, and thus ignores the fundamental gender issue in the management of women offenders. Her view is that the platform is therefore incongruent. She recommends a global review in line with accepted theories, model, policy, and practice to develop a comprehensive, just, ftting, and effective management strategy for women who offend.49 Whereas this observation was made in reference to Australia, it arguably applies to women prisoners in both developed countries and in developing countries such as Kenya.

3.4 Problems experienced by children left outside prison as the mother serves the sentence I can do time alone OK. But it’s not knowing what’s happening to my son that hurts most.50 In the United States, the number of children affected by maternal imprisonment each year is estimated to be in the region of 200,000, most of whom are children of lone mothers living in poverty prior to their imprisonment. A not-dissimilar picture is provided by the Ministry of Justice in the UK, which estimates that 24–31% of women prisoners have one or more dependent child living with them immediately before their sentence.51 Prior to their incarceration, about a ffth of

48 Judith Miller-Warke’s paper presented at the Women in Correction Staff and Client Conference convened by the Australian Institute of Criminology in conjunction with the Department for Correctional Services SA held in Adelaide, 31 October–1 November (2000). 49 Judith Miller-Warke’s paper presented at the Women in Correction Staff and Client Conference convened by the Australian Institute of Criminology in conjunction with the Department for Correctional Services SA held in Adelaide, 31 October–1 November (2000). 50 Baunach Jo Phillis, Mothers in Prison, 2nd Edition, 1985, 121, New York: Routledge. 51 Prison Reform Trust (2014), Bromley Briefngs Prison Factfles Autumn (2014) London: PRT.

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these women were lone parents, and although 61% of them had partners, 31% of these partners were also in prison.52 Imprisonment clearly results in the disruption of family life, with only 9% of children left under the father’s care and just 5% remaining in their home during their mother’s incarceration.53 The ripple effects of parental separation from the child due to imprisonment are far-reaching not only for both the mother and the child, but also for those who assume caregiving responsibilities for the children and, less directly, the wider society through the consequential demands on public services. Stanley and Byrne have shown that in the US, UK, and Australia, increasing attention is being paid to the adverse impact of the separation occasioned by mothers’ imprisonment on their children, families, carers, and the prisoners themselves.54 The greatest pains of imprisonment for women invariably relate to the enforced separation from their children. But research across jurisdictions identifes developmental and other disadvantages for children separated from their mothers by imprisonment. Ross D. Parke and K. Alison Clarke-Stewart observe that separation of a mother from her children due to imprisonment is among the greatest punishments.55 A study by the US Department of Justice reported that children separated from imprisoned mothers experience various outcomes associated with insecure attachment, including poor peer relationships and diminished cognitive abilities.56 A United Nations report has drawn attention to the ways in which imprisonment has a negative effect globally on the future wellbeing of prisoners’ children, who are described as ‘collateral convicts’.57 For these children, the imprisonment of their mothers commonly leads to a loss of opportunities and basic material necessities, as well as contributing to mental health problems. In the UK, Rona Epstein similarly notes ‘complex health, social and welfare disadvantages including the impact of family discord, substance abuse and mental health issues’.58

52 Prison Reform Trust (2014), Bromley Briefngs Prison Factfles Autumn (2014) London: PRT. 53 Social Exclusion Unit (2002), ‘Reducing Reoffending by Ex-prisoners’, London: SEU. 54 Emma Stanley and Stuart Byrne, ‘Mothers in Prison: Coping with Separation from Children’, presented at the Women in Correction Staff and Client Conference convened by the Australian Institute of Criminology held 31 October–1 November (2000). 55 Ross D. Parke and K. Alison Clarke-Stewart, ‘From Prison to Home: The Effects of Incarceration and Re-Entry to Children, Families, and Communities’, ASPE. 2001 available at https://aspe.hhs.gov/basic-report/effects-parental-incarceration-young-children accessed 9 September 2018. 56 Laurence Glaza and Laura Maruschak (2008), ‘Parents in Prison and their Minor Children’, US Department of Justice; see also Alan Sroufe (2005), Attachment and Human Development, Routledge Dec 2005; 7 (4):349–367. 57 United Nations 2011 conference on the UN Committee on the Rights of the Child Day of General Discussion (DGD) held in Geneva on Friday 31 September. Quaker United Nations Offce (QUNO) represents Friends World Committee for Consultation (QUAKERS). It has general consultative status and works to promote peace and justice concerns of friends to the United Nations as well as to other global institutes. 58 Rona Epstein, ‘The Sentencing of Mothers and the Rights of the Child’, (2014) 3, The Howard League of Penal Reform available at https://howardleague.org/wp-content/uplo ads/2016/04/HLWP_3_2014.pdf accessed 17 April 2019.

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Baunach has estimated that 70% of young children separated from their incarcerated mother suffer emotional and psychological problems, both in the short and longer terms. Disruption to a child’s way of life occasioned by their mother’s imprisonment can lead the child to develop negative cognitive expectations about relationships, affecting their ability to form new social bonds.59 Attachment theorists observe that feelings of insecurity occasioned by separation may predispose the child to view him or herself as untrustworthy or undeserving of maternal attention, leading to adjustment challenges in later relationships. Other developmental diffculties include the onset of anti-social behaviour, displaying aggression, anger, and hostility towards other children and towards their temporary carers.60 The nature and intensity of the impact that a mother’s imprisonment has on her child inevitably vary with age. Thomson argues that where parental attachment is developed prior to incarceration, separation is likely to adversely affect the quality of the bonding,61 while Porterfeld observes that separating children aged under two from their parents exposes them to intellectual and emotional developmental challenges.62 Those aged between two and six may become confused due to their inability to process what is happening, which they may interpret as abandonment.63 Those aged between seven and ten are prone to experience diffculties in articulating what they are feeling and in relating with their peers; whilst slightly older children, between 11 and 14, have a greater tendency to internalise their emotions and become resistant to adult authority. For those in their mid to late teens, this recalcitrance can often be expressed in delinquent and criminal behaviour. It is also suggested that whilst these children are amongst those most at risk of criminal behaviour, they are also amongst the least visible population of children.64 Where other family relations are weak or non-existent, the transmission of inter-generational criminal behaviour is particularly acute. In some circumstances, the instability of the family caused by the incarceration of the mother can exacerbate child poverty and even lead to child neglect and abuse.65 The UN reports that the lack of a settled home and moving homes frequently, as well as developing a perception of prison as a normal experience, all destabilise healthy psychological development in the children of imprisoned

59 Mary Ainsworth (1989), Attachment Beyond Infancy; See also John Bowlby (1979), The Making and Breaking of Affectional Bonds, Routledge Classics. 60 Fishman, (1983); Gaudin, (1984); Johnston, (1995); Jose Kampfner, (1995); Sack et al., (1976) 61 Thompson, (1998). 62 Holly Hernandez, ‘The Invisible Victims: Children of Incarcerated Mothers’, (2006) 8 available at 8 https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?referer=https://www .bing.com/&httpsredir=1&article=1092&context=mcnair accessed 30 December 2018. 63 Holly Hernandez, The invisible victims: Children of incarcerated mothers, (2006) 8 available at 8 https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?referer=https://www .bing.com/&httpsredir=1&article=1092&context=mcnair accessed 30 December 2018. 64 Diane Reed and Edward Reed (1997), ‘Children of Incarcerated Parents’, Social Justice, Fall (1997) volume 24 n3 152 (18); see also Danielle Dallaire, (2007), ‘Children with Incarcerated Mothers’, Journal of Applied Developmental Psychology 28 (2007) 15–24. 65 Parke and Clarke-Steward, (2003); see also Holly Hernandez, (2006).

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mothers.66 According to Johnston and Carlin, however, about one in four incarcerated women in the US has no contact with their children during their imprisonment.67 This mainly occurs because most women’s prisons are widely dispersed geographically, leading to women serving their sentences long distances from their homes.68 This breakdown of communication occasioned by the inability of the child to visit the mother can lead children to feel abandoned and even bereaved by the loss of contact.69 However, the negative effects of parental incarceration can often extend beyond the family, as John Hagan and Ronit Dinovitzer demonstrate.70 Their study examined research pertaining to how society at large might be adversely affected by parental incarceration. They found that the effects of imprisoning parents are predictably ‘substantial and deleterious’ not only for children but also for wider society since the children are less able to contribute to their communities and families.71 Like most jurisdictions, Kenya’s prisons for women are geographically dispersed, and long distances from home can make transportation prohibitively complex and/or expensive. And whilst the conclusions of the studies referenced here have originated in Western societies, their focus upon the harmful consequences of maternal separation for a child’s psychological development cannot be ignored in the Kenyan context. The healthy development and nurturance of children within a family setting and the effect that a mother’s sudden removal has in interrupting that process is likely to transcend national differences. If anything, the prevalence of lone-mother families in Kenya, and the paucity and fragility of other sources of support, is likely to exacerbate the detrimental effects of sudden separation. One example where this spiral of anti-social adaptation can be most clearly observed is amongst the street children of Kenya, as explored later in Chapter Four.

66 Oliver Robertson, ‘Collateral Convicts: Children of Incarcerated Parents’ (2011), The Quaker United Nations Offce available at http://www.quno.org/sites/default/fles/resou rces/ENGLISH_Collateral%20Convicts_Recommendations%20and%20good%20practice. pdf accessed 18 April 2019. 67 Denise Johnston and Michael Carlin (2006), ‘When Incarcerated Parents Lose Contact with Their Children’, Prison Legal News (2004) 6 available at https://www.prisonlegalnews.org /news/2004/feb/15/when-incarcerated-parents-lose-contact-with-their-children/accesse d 17 April 2019. 68 Phillips Susan, Barbara Bloom, In Whose Best Interest? The impact of Changing Public Poilcy on Relatives Caring for Children with Incarcerated Parents, Child Welfare, Volume 77, No.5, September/October (1998); see also Kolina Delgado, ‘Impact of Incarceration on Families: a Summary of the Literature’, (2011). 69 Denise Johnston and Michael Carlin (2006), ‘When Incarcerated Parents Lose Contact with Their Children’, Prison Legal News (2004) 6 available at https://www.prisonlegalnews.org /news/2004/feb/15/when-incarcerated-parents-lose-contact-with-their-children/accesse d 17 April 2019.Bloom, (1998). 70 John Hagan and Romit Dinovitzer, ‘Collateral Consequences of Imprisonment for Children, Communities and Prisoners’, Crime and Justice (1999) Volume 26, 122. 71 John Hagan and Romit Dinovitzer, Collateral Consequences of Imprisonment for Children, Communities and Prisoners, Crime and Justice (1999) Volume 26, 122.

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3.4.1 Proposals for public policy What is clear from the literature is that in most cases, the impact of a mother’s incarceration on the child is multi-faceted, and any attempt to address the range of potential problems calls for a coordinated effort by a variety of professional stakeholders. At the core of professional concern for children of imprisoned parents, and particularly imprisoned mothers, is the disruption caused to the child’s attachment to that parent and the seriously damaging consequences this has for the child’s development. Joseph Murray and David Farrington succinctly point out that separation is not only ‘a risk factor for child antisocial behaviour, offending, mental health problems, drug abuse, school failure and unemployment’ but also the possible cause of these ills.72 Unlike in Kenya, where children left behind are mostly cared for by relatives, in developed countries it is not necessarily easy to re-establish a close parental relationship after release from custody. In the UK, research by Minson, Nadin, and Earle revealed that resettlement and restoring family ties could be highly problematic upon release, even in cases where the stay in custody is short.73 One woman had this to say: When I got out of prison I was in a catch-22, that’s what they kept telling me. If your child doesn’t live with you, you can’t get accommodation, but you can’t get your child back unless you’ve got accommodation … I got a room in a hotel. I didn’t want to take my son from his stable home and bring him to a little hotel, he’s just not used to living like this, I wanted to do everything right. But eventually I was just like, I want my son back.74 In addition to the problems of regaining a family home are diffculties children face in adjusting to their mother’s return from prison. Isla Mansson’s study found that even short sentences had a lasting impact on children and emphasised that the negative effects of separation last much longer than the duration of the mother’s sentence.75 She observed that ‘incarceration is not just about a temporary loss of liberty … even short terms in prison have long multidimensional consequences’.76

72 Joseph Murray and David Farrington (2008) ‘Effects of Parental Imprisonment on Children’, in M. Tonry (Ed), Crime and Justice: A Review of Research Vol.37; Chicago, IL: University of Chicago Press pp 133–206. 73 Shona Minson, Rebecca Nadin, and Jenny Earle, ‘Sentencing of Mothers: Improving the Sentencing Process and Outcome for Women with Dependent Children, A Discussion Paper’, Prison Reform Trust (November 2015). 74 Jenna, a mother to an eight-year-old boy, had been sentenced to imprisonment. Shona Minson, Rebecca Nadin, and Jenny Earle, ‘Sentencing of Mothers: Improving the Sentencing Process and Outcome for Women with Dependent Children’ (2015) 7. 75 Masson Isla. M. ‘The Long-Term Impact of Short Periods of Imprisonment on Mothers’. Ph.D. study submitted to the Dickson Poon School of Law, King’s College London, University of London in (2014) 2 available at https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.666537. 76 Masson Isla. M. ‘The Long-Term Impact of Short Periods of Imprisonment on Mothers’. Ph.D. study submitted to the Dickson Poon School of Law, King’s College London, University of London in (2014) 3.

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In Canada, Alison Cunninghan and Linda Baker note that the long-term effects of incarceration on the child are dependent on a number of factors, including the child’s developmental level at the time of the incarceration, informal and formal social support networks and the ability to maintain contact with the absent parent.77 What is clear from a number of these studies is that attempts to ameliorate the loss of the mother’s presence in the daily life of her children rest heavily on the surrogate carers who offer material and emotional support during the period of separation. Peter Scharff Smith and Lucy Gampell, examining the rights of children of imprisoned parents in Denmark, Italy, Poland, and Northern Ireland, observe that organisations that help families of prisoners cope with children left behind need to be properly resourced, not only to provide services for the families of the imprisoned parent but also to increase the number of families they are able to support.78 As one of the social workers interviewed in the study observed: Children of imprisoned parents become introvert, they seek acceptance from their peers and others but often experience emotional diffculties […], start displaying nervousness. […] Such children often feel lost and become an easy target, start having problems at school and at home. They lose the feeling of safety and security, begin to display aggressive behaviour. In cases where the mother is imprisoned, children often lose contact with her and family ties dissolve. They are stigmatised.79 The study also points out the need for each country to acquire accurate statistics of the children affected by parental imprisonment to allow the relevant authorities to give the children appropriate support and facilitate ongoing contact between the children and the imprisoned parent. It directly calls for the state to focus on the needs of these children, and to assist with the resettlement of the incarcerated parent. In particular, the study urges greater commitment on the part of the state by: incorporating the UN Convention on the Rights of the Child into European standard, national laws and practice, with regard to children of imprisoned parents, so as to ensure that children of imprisoned parents are able to maintain contact with their parents; are consulted and receive timely information regarding what has happened to their parent; are free from discrimination on the grounds of the acts of their parents and have their views considered whenever appropriate.80

77 Alison Cunningham and Linda Baker, Invisible Victims: The Children of Women in Prison, Centre for Children and Families in the Criminal Justice Systems, (2004) 2. 78 Peter Scharff Smith and Lucy Gampell, Children of Imprisoned Parents, JesEllehauge Hansen, (2011). 79 Peter Scharff Smith and Lucy Gampell, Children of Imprisoned Parents, JesEllehauge Hansen, (2011) 34. 80 Scharff Smith and Lucy Gampell, Children of Imprisoned Parents, JesEllehauge Hansen, (2011) 36.

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Other researchers have highlighted the remarkable lack of attention given to the harms imposed on prisoners’ children. Hagan and Dinovitzer note that the impact of parental imprisonment is ‘maybe the least understood and most consequential implication of the high reliance on incarceration in America’.81 Similarly, Joseph Murray and David Farrington express surprise at the neglect of the problem and argue that much greater attention needs to be given to shielding these children by developing prison practices that are family-friendly, and supports parenting programmes. They also argue for fnancial assistance to surrogate carers, as well as greater use of non-custodial sentences in order to avoid the obiter punishment of imprisonment. In addition, they urge the media and the wider community to adopt a more sympathetic and constructive attitude towards crime and punishment in general, so as to lessen the stigmatising impact on prisoners’ children. The wellbeing of the child in the absence of the mother poses a main challenge to the remaining family. Creasie Hairston, writing from an American context, observed that children’s nurturance, protection, and care during the incarceration period are a major cause of concern to the immediate family.82 She points to the strength and commitment some families show in support of their kin in prison, as well as their dedication in protecting the children of the imprisoned parent. But the intensity and complexity of the children’s needs can be considerable. Problems experienced by most of the children in her study included ‘excessive crying, school diffculties as well as withdrawal’.83 She is critical of administrative practices and social policies implemented by the state which, she claims, too often curtail or strain supportive family relationships. To alleviate these counterproductive consequences, she emphasises the importance of communication between families and inmates, providing carers with accessible information that enables an understanding of the criminal justice process and how best to manage the separation and maintenance of family connections. To improve the inmate’s family dynamics, Hairston suggests that states should formulate policies based on research into the relationships and roles prisoners played in their families prior to incarceration. She suggests that this research should be the basis upon which state legislatures and congressional bodies formulate policies, programme development, and facilitate critical discussion on criminal justice and family policy. Family-related problems arising from incarceration, particularly of mothers of dependent children, should, she argues, become a matter of national interest. She promotes alternatives to imprisonment and changes to sentencing policy and calls on criminal justice decision makers to

81 John Hagan and Ronit Dinovitzer, Crime and Justice, volume 26, (1999) 122. 82 Creasie Finney Hairston, ‘Prisoners and Their Families: Parenting Issues During Incarceration’, in Prison Once Removed: The Impact of Incarceration and Re-Entry of Children, the Family and the Community, The Urban Institute Press, (2003) 260–282. 83 Creasie Finney Hairston, ‘Prisoners and Their Families: Parenting Issues During Incarceration’, in Prison Once Removed: The Impact of Incarceration and Re-Entry of Children, the Family and the Community, The Urban Institute Press, (2003) 260–282.

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be required to preserve and strengthen family ties.84 As a means of informing these public debates and action, she provides an overview of the experiences of prisoners’ families during incarceration. The study explores the problems faced by the families and the strategies they employ in order to manage the situation. She reveals how the manner in which administrative practices and social policies are implemented by the state curtail or facilitate supportive family relationships. She points to the strength and commitment some families show in support of their kin in prison, as well as their dedication in protecting the children of the imprisoned parent. The study calls for a positive change in how society views and responds to prisoners’ families, emphasising the importance of strengthening the family unit in order to protect the interests of children of imprisoned caregivers. Most of the prison systems in the Scandinavian countries follow the model advocated for in the current study.85 Although her study does not focus on children specifcally, Megan Comfort argues that the incarceration of the male may strengthen the family unit as opposed to weakening it.86 In the study conducted at San Quentin State Prison in the USA, Comfort looks at how prison infltrates and shapes the lives of wives, fancées, and girlfriends left behind by the incarcerated lovers, and how these romantic relationships draw the women to the penitentiary public institutions and the accompanying prison rigidity and intrusiveness into inmate’s intimate lives. The women sampled showed ‘great ambivalence’ in the struggle to sustain the romantic relationships with their marginalised lovers.87 The central role played by prisoners’ families is further examined by Jean Tomkin, who analyses the different approaches adopted by courts in various jurisdictions in their interpretation of the ‘best interests of the child’ principle.88 She points out the heavy reliance on the wider family to impart values and life skills to the child, defning acceptable limits of behaviour and engendering a sense of belonging during the period of separation. She suggests that applying the ‘best interests’ principle could reduce the perpetuation of crime from one generation to the next, and that administration of justice should be served by preventing the collateral punishment of those dependent on or close to the offender.

84 Creasie Fibbey Hairstorm, Prisoners and Families: Parenting Issues During Incarceration, (2002) available at https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=205858. 85 Helen Fairis (2011), ‘International Review of Women’s Prisons’, Prison Service Journal issue 184. The study examined how other countries fared in reforming women’s imprisonment following the UK 2007 Corston Report, which called for ‘a distinct radically different, visibly-led, strategic, proportionate, holistic, women centred, integrated approach’ in organisation of prisons. 86 Megan Comfort, Doing Time Together: Love and Family in the Shadow of the Prison, (2008), University of Chicago Press. 87 Megan Comfort, Doing Time Together: Love and Family in the Shadow of the Prison, (2008), University of Chicago Press. 88 Jean Tomkin, ‘Orphans of Justice’, available at https://quno.org/sites/default/fles/res ources/ENGLISH_Orphans%20of%20Justice.pdf.

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The negative effects of parental incarceration, however, extend beyond the family level, as John Hagan and Ronit Dinovitzer demonstrate.89 Their study examined research pertaining to how society at large might be adversely affected by parental incarceration. They found that the effects of imprisoning parents are predictably ‘substantial and deleterious’ not only to the children but also to the wider society since the children are less able to contribute to their communities and families’.90 Expounding on the harm of separation in Ontario, Canada, Alison Cunningham and Linda Baker observe that imprisonment mostly affects families that are already facing major challenges.91 They argue that ‘in our zeal to make offenders pay by forfeiting their freedom, children become the secondary victims of crime, experiencing residential disruptions, school changes, separation from siblings, foster care or periods of time spent with convenient but inappropriate caretakers’.92 Highlighting inter-generational effects, the authors state that 40% of the women in their study had personally experienced parental separation arising from a parent being imprisoned when they were growing up and that in the course of raising the next generation, half of the teenage children of these women had been in youth custody. Not all research, however, identifes the wider family as a resource that should be relied upon, or shares a common understanding of what constitutes the best interests of the child. For example, rather than informing children about the imprisonment of their mother, some authors such as Becker and Margolin have argued for their greater shielding, particularly from exposure to arrest and incarceration.93 In interviews with 31 children of incarcerated mothers, Jose-Kampfner revealed how some families go to great lengths to conceal the truth of a parent’s imprisonment.94 Nearly one-third of the 31 families sampled in Kampfner’s study gave vague, distorted, or deceitful explanations to the children, such as referring to the prison as an army camp or a hospital. Parker and Clarke-Stewart found that some children who had been present at the time of their mothers’ arrest suffered nightmares and fashbacks to the moment of enforced separation.95 However,

89 John Hagan and Ronit Donovitzer (1999), ‘Collateral Consequences of Imprisonment for Children, University of Chicago Press Journals, Crime and Justice volume 26. 90 John Hagan and Ronit Donovitzer (1999), Collateral Consequences of Imprisonment for Children’, University Of Chicago Press Journals, Crime and Justice volume 26. 91 Alison Cunninghan and Linda Baker, Invisible Victims: The Children of Women in Prison, Centre for Children and Families in the Criminal Justice Systems, (2004) https://www.res earchgate.net/publication/228611862_Invisible_victims_The_children_of_women_in_p risone accessed 29 September 2018. 92 Alison Cunningham and Linda Baker, Invisible Victims: The Children of Women in Prison, Centre for Children and Families in the Criminal Justice Systems (2004) 1 https://www.res earchgate.net/publication/228611862_Invisible_victims_The_children_of_women_in_p risone accessed 29 September 2018). 93 Diane Becker and Faith Margolin, (1967), ‘How Surviving Parents Handle their Young Children’s Adaptation to the Crisis of Loss’, American Journal of Orthopsychiatry, volume 37 issue 4. 94 Parker and Clarke-Stewart, 2003; see also Johnson (1919). 95 Parker and Clarke-Stewart, 2003; see also Johnson (1919).

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other researchers have also shown that children who were in school at the time, and who were not warned in advance of the separation, faced the unsettling experience of returning to an empty home and the disappearance of their mother.96 Johnson believes that information about the incarceration should be given to the child rather than withheld, which he regards as a ‘conspiracy of silence’ though not intended to deceive the child. He states that There may be a very good reason for such a forced silence: family jobs, welfare payments, child custody and even housing may be jeopardised when others become aware of the parent’s whereabouts. However, children of prisoners are more likely to have negative reactions to the experience when they cannot talk about it.97 Notwithstanding these reservations, the dominant theme in the literature is that a child’s ability to cope with the separation caused by parental imprisonment is hindered by a lack of clear information, and that uncertainty only makes the child more anxious and fearful.98 Borrowing from Nolen-Hoeksema and Larson’s work on parental loss through death, ways of helping children cope with the absence of the parent include validating their experiences and providing them with honest, reliable factual information that enables them to make sense of their situation and to cope with the prevailing circumstances.99 One fnal perspective found in the literature, albeit one attracting only minority support in Western jurisdictions, supports a more permanent separation of the child from the convicted mother. James Dwyer, a leading advocate of this argument, argues that criminalised mothers should not be allowed to keep their children, who should be adopted at birth or permanently separated from their imprisoned mothers.100 DuBois and Silverthorn also suggest that children from unstable families are likely to beneft by being separated from their parent.101 They argue that a continuous, positive relationship with adults who are not part of their criminal families will yield greater positive outcomes than maintaining existing parental relationships. Some of the reasons given in support of this view are that the child will be able to have a settled home and caregivers, removing the need for frequent school transfers arising from parental incarceration. It is also argued

96 97 98 99

Fishman, (1983). Johnson (1995)74. Sandler Ayers, West and Roosa (1996); see also Compas (1987). Susan Nolen-Hoeksema, Judith Larson, and Carla Grayson, (2008) ‘Explaining the Gender Difference in Depressive Symptoms’, Journal of Personality and Social Psychology, Volume 77, No.5, 1061–1072, American Psychology Association, 1999. 100 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. 101 David Dubois and Naida Silverthorn, ‘Natural Mentoring Relationships and Adolescent Health: Evidence from National Study’, Am J Public Health, Volume 95(3) 518–524, March 2005 available at https://ajph.aphapublications.org/doi/abs/10.2105/AJPH. 2003.031476 accessed 12 January 2019.

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that the development of a healthy mentorship relationship may lead the child to form a pro-social mind-set that enables the development of constructive social relationships and the opening up of new opportunities. It is pointed out that if the incarcerated parent was a negative infuence in the child’s life, separation will release the stress occasioned to the child. The benefts accruing to the child are said to include the avoidance of witnessing domestic violence and being removed from impoverished environments that damage their immediate wellbeing and restrict their future opportunities. This perspective, nevertheless, remains largely unsupported in the wider literature, accepted only as a strategy of last resort. The best interests of the child are interpreted predominantly to include the right to family life, and only when the continuance of family relationships is damaging to the child’s wellbeing should those ties be severed. Unlike developed Western nations, Kenya does not have an established infrastructure to support families in caring for the children of prisoners. In addition, large numbers of women prisoners in Kenya are lone parents and, in many instances, their wider family is incapable of providing for their children’s needs. The proposal to permanently remove children from these family situations is also impractical in the Kenyan context; put simply, there are no alternative, welladjusted families ready and able to offer care to these children. Indeed, the only feasible way forward to protect children who are separated from their primary carer by imprisonment is to reduce the use of custodial sentences for mothers.

3.5 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 specifcally 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 refect 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’.102 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

102 David Nelken, Comparative Criminal Justice: Making Sense of Difference, Los Angeles, California (2010) 12 available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4 _-_Comparative_Criminal_Justice(1).pdf accessed 30 December 2018.

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a foil’.103 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.104 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. 105 This section defnes 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’.106 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.

103 David Nelken, Comparative Criminal Justice: Making Sense of Difference, Los Angeles, Calif (2010) 12 available at https://www.law.berkeley.edu/fles/Nelken_-_ch_1-4_-_Co mparative_Criminal_Justice(1).pdf accessed 30 December 2018. 104 It is important to point out that as a sentencer, I am a State Offcer 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 fnancial 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. 105 ‘Report of a Review of Principles, Policies and Procedures on Mothers and Babies/Children 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. 106 ‘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.

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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 signifcant 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 feld 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.107 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.108 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 ratifcation 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 reaffrm 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

107 S V M (2007). (CCT 35/06) [2007] ZACC 18; (2008) (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007) –safii. Available at www.safii.org>databases accessed 21 April 2017; see also https://www.crim.org accessed 28 March 2017. 108 S V M (2007). (CCT 35/06) [2007] ZACC 18; (2008) (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007) para 18, –safii, available at www.safii.org>databases accessed 21 April 2017; see also https://www.crim.org accessed 28 March 2017.

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Without delving too deeply into the debate about when life starts, taking it that a baby fts into the defnition 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.110 So, despite their tender age and lack of awareness, the state has a duty to safeguard these child’s rights.111 Echoing similar sentiments in support of the infant and the unborn child during the marking of the gains made by the UNCRC 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 scientifc fndings, 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 frst 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 frst stage of life. This matter can’t be fxed 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.112

109 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). 110 Neither the 1924 Geneva Declaration nor the 1959 Declaration of the Rights of the Child defne 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 for 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, E/ CN.4/1988/28, para.18. Article 62(2) of the Kenyan constitution provides that the life of a person begins at conception. 111 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 fve 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, defne 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.lifesite news.com/news/judge-slaps-down-immigration-boards-claim-that-unborn-children-have -no-best accessed 30 September 2018. 112 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.

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This view is underscored in a British study conducted on behalf of the children’s charity Barnardo’s, which examines the major developmental signifcance of pregnancy in prison for the ensuing babies’ healthy and safe start in life.113 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’.114 Looking at how incarceration affects the entire family of the convicted offender, including the new caregiver, Joyce A. Arditti gives refections, 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.115 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’.116 The separation is also underscored by Marie Hutton and Dominique Moran in their book on prison and family life.117 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 ‘fnancial and emotional hardship’, among other negative aspects of separation.118 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 offcers deployed in all police stations in Denmark.119 Commenting on the USA experience, Dwyer observes that

113 Susan Galloway, Alice Haynes, and Chris Cuthbert, An Unfair Sentence, All Babies Count: Spotlight on the Criminal Justice System, Barnardo’s (November 2014). 114 Susan Galloway, Alice Haynes, and Chris Cuthbert, An Unfair Sentence, All Babies Count: Spotlight on the Criminal Justice System, Barnardo’s (November 2014) 5. 115 Joyce A. Arditti, Parental Incarceration and Family: Psychological and Social Effects of Imprisonment on Children, Parents, and Caregivers, NYU Press (2012). 116 Joyce A. Arditti, Parental Incarceration and Family: Psychological and Social Effects of Imprisonment on Children, Parents, and Caregivers, NYU Press, (2012). 117 Maria Hutton, Dominique Moran, The Palgrave Handbook of Prison and the Family, Palgrave Studies in Prisons and Penology 1st ed, (2019). 118 Maria Hutton, Dominique Moran, The Palgrave Handbook of Prison and the Family, Palgrave Studies in Prisons and Penology 1st ed, (2019). 119 Peter Scharff Smith, When the Innocent Are Punished: The Children of Imprisoned Parents, Sage, (2015)

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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.120 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.121 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.122 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.123 She observes that ‘for the children accompanying incarcerated mothers into prison, the change of residence results in more than a change of address’.124 In her view, children residing in prison are victims of the often overcrowded, defcient, 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 refects 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.

120 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. 121 David Cameron, British prime minister, BBC News, 7 February 2016, https://www.bbc .co.uk/news/uk-35515003 accessed 30 September 2018. 122 Prison Reform Trust, (2011) 2. 123 Marlene Alejos, Babies and Small Children Residing in Prison, (2005) 10. 124 Marlene Alejos, Babies and Small Children Residing in Prison, (2005) 10.

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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 diffculties 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.125 The Quaker United Nations Offce 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 specifc 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.126 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.127 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

125 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. 126 Quaker United Nations, Violence Against Babies and Small Children Living in Prison with Their Mothers, 10 September 2008 report. 127 Laurel Townhead, Women in Prison And Children of Imprisoned Mothers: Recent Development in the United Nations Human Rights System, Quaker United Nations Offce, April 2006 report.

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incarcerated. Without elaborating on the specifc 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 UNCRC. 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.

3.6 Debate in support of Mother and Baby Units (MBUs) Unlike developing countries, where economic challenges and the level of development hamper the ability to make specifc provision for babies in prison, developed countries such as England and Wales provide designated facilities which are offcially referred to as ‘Mother and Baby Units’ (MBU). The separate accommodation is aimed at neutralising the negative effects of incarceration on the children and at offering them a similar environment to the one enjoyed by children living within the community.128 Women gain access to a place in the MBU after a thorough assessment of suitability by the prison admissions board under the leadership of an independent chair. The mothers within the unit retain parental responsibility for their children and are therefore able to live with them and personally take care of them as they serve their sentence. 129 Supporting the idea of the MBUs, Ann Cunningham is of the view that the parenting courses offered and opportunities for supportive care from other imprisoned mothers, coupled with the lack of other responsibilities and distractions, may enhance mother–child bonding.130 The mother’s ability to lactate is dependent on proper nutrition, and access to a balanced diet is regarded as another beneft of the units.131 It is also argued that for some women, living in the MBU together with their baby and away from the father of the child could harbour other unintended benefts: I volunteer in Holloway prison [in UK] and the breast-feeding rate is much higher than in the local population because there aren’t any men to not support it … [women] are actually very supportive of each other in the mother and baby unit and they do feed and they help each other. In the absence of

128 (HM Prison Services, 2014); see also (NOMS, 2015). 129 (HM Prison Services, 2014:8); see also (NOMS, 2015). 130 Anne Cunningham, ‘Forgotten Families – The Impacts of Imprisonment’, Family Matters, winter (2001) 36. 131 Hillary Margolis, ‘Innocent Prisoners: A LICADHO Report on the Rights of Children Growing Up in Prison’ (June 2002) 17. It is important to note that being a developing country, Kenya has lacks Mother and Baby Units, and the babies mostly spend time with their mothers among other inmates in prisons which are densely populated. The issuance of proper clothing and diet for the breast-feeding mothers is also a major challenge to the prison authorities due to limited resources.

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a bloke who thinks that her breasts are his ownership it is actually quite successful a lot of the time.132 Similar support for the placement of babies in MBUs is expressed by Maya Sikand, who observes that facilities in the well-equipped nurseries of MBUs have a very positive impact on children. In conclusion, she notes that once a mother and her child are settled, both ‘can fourish and prisoners can make very signifcant changes in their lives’.133 Empirical research conducted in the UK by O’Keeffe and Dixon, however, is less sanguine and argues for better care services for babies in prison as well as for their mothers.134 It observes that a baby’s frst 18 months are critically important in shaping their long-term wellbeing and development.135 The research calls for adequate support and facilitation for mothers in prison with their young children, creating more MBU places in pursuit of better outcomes in the mother–baby relationship. Yet it seems that the MBUs are underutilised. A report from the Chief Inspectorate of Prisons shows that there is a high rate of rejection of placement applications from mothers in prison, leading to underutilisation of available places: Mother and Baby Units had good facilities but were underused. More imaginative thought needs to be given to how Mother and Baby Units and the skilled staff who work in them can be more fully used to help women in prison maintain or develop positive relationships with their children.136 But not all mothers want their children to accompany them into prison. In a UK study conducted by Gregoire, 90% of 112 mothers sampled in prison knew about the MBUs before incarceration, but less than 30% of them applied for a place.137 The main reason for not applying was that they felt that the prison environment was not appropriate for their children. Only 6% said that they were not aware of the chance to apply for a place in the MBU. Oliver Robertson argues that babies allowed into prison to live with their mother experience better development and emotional bonding than those who

132 Oliver Robertson, The Impact of Parental Imprisonment on Children, Quaker United Nations Offce (2007) 32. 133 Maya Sikand, ‘Lost Spaces: Is the Current Procedure for Women Prisoners to Gain a Place in a Prison Mother and Baby Unit Fair and Accessible?’ (2015) 4 available at https://ww w.gardencourtchambers.co.uk/wp-content/uploads/2017/03/griffns_research_paper_2 015-05.pdf accessed 30 September 2018. 134 Caroline O’Keeffe and Lesley Dixon, Enhancing Care for Childbearing Women and Their Babies in Prison (November 2015). 135 Galloway et al., (2014). 136 HMP Inspector of Prison Annual Report (2015–2016) 15. 137 Alain Gregoire et al., ‘Mental Health and Treatment Needs of Imprisoned Mothers of Young Children’ (2010) 16, Journal of Psychiatry and Psychology, volume 21 issue 3.

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are separated. However, in his conclusion, he underscores the dilemma that although prison is clearly not an appropriate place to raise children, separating the mother from the newborn is not only cruel but has even greater detrimental effects on both mother and child.138 This observation echoes Alejos’ argument that there is a fundamental confict in trying to take account of the rights and interests of the child while sentencing a mother with caregiving responsibilities to a period of imprisonment.139

3.6.1 Argument against the use of Mother and Baby Units Despite evidence that MBUs may bring benefts for a child’s development, many scholars are frmly opposed to these units. Expressing their reservations about MBUs, Susan Galloway, Alice Haynes, and Chris Cuthbert point out that whereas the units may prevent the trauma of separating the mother from her child, the prison environment may be detrimental to the child’s development.140 This is attributed to the lack of a safe and stimulating environment conducive to learning and exploring. In Finland, there are no prisons specifcally for women, but the law requires that men and women live in separate units. The Finnish Prison Act clarifes that it is the Children Protection Act that determines the placement of a young child with the mother or the father in a family unit within the prison. The age limit is two years, but where the welfare of the child is an issue, the limit can be extended to three years. Observing the institutional invisibility of children in the prison system in Finland, however, Rosi Enroos points out that despite providing appropriate facilities for the children to live inside the prison, ‘no data are gathered about the children, nor is the monitoring or support of their entry, residence, or the planning of their life after prisons organised as part of job description of any statutory authority’.141 She argues that this lacuna is based on the fact that the legal mandate provided for the Finnish prison authority relates to the prisoners and their sentences rather than the children accompanying the parent. She suggests that these children need to become institutionally visible, so that their needs and rights can be recognised and the impact of their time in prison can be examined. This resonates with the observation made earlier

138 Oliver Robertson, Collateral Convicts: Children of Incarcerated Parents, (2011) Quaker United Nations Offce available at http://www.quno.org/sites/default/fles/resources/ ENGLISH_Collateral%20Convicts_Recommendations%20and%20good%20practice.pdf accessed 30 September 2018. 139 Marlene Alejos, Babies and Small Children Residing in Prison, (2005) 10 available at www .quno.org. 140 Susan Galloway, Alice Haynes, and Chris Cuthbert, All Babies Count: Spotlight on the Criminal Justice System (November 2014) page 5, available at https://docplayer.net/318 1269-An-unfair-sentence-all-babies-count-spotlight-on-the-criminal-justice-system.html accessed 30 September 2018. 141 Rosi Enroos, ‘From Invisibility to Protection – Children in Prison with their Parents in Finland’ in Children and Society (2013).

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about the penal circumstances of children accompanying their incarcerated mothers in Kenya, where the legal focus is on ensuring that the convicted offender is punished as per the law provided, without much regard to what happens to those dependent on her. Arguing against MBUs from a different standpoint, Dwyer makes a case for separating babies from their convicted parents, particularly the ‘adults of minority race … born into impoverished and troubled communities’.142 Dwyer points out that prison nurseries have been advocated for incarcerated women, which has resulted in ‘a set of liberal policies that effectively imprison black children from dysfunctional families and communities and so ensure they fall into the intergenerational cycle of poverty, addiction and criminality’.143 His solution is to put these children ‘in any available non-incarceration alternative placement, including adoption’.144 He emphasises that available evidence suggests that in an effort to connect incarcerated birth parents with their offspring, prison nurseries harm the great majority of those children due to the ‘tense, stressful, antagonistic, demoralizing and stifing environment’ that exists in the custodial setting.145 Quoting Goldsmith, Dwyer states that the prison is ‘very limited in both space and variety of experiences’ and reiterates that Children are affected by their physical and social environments even before they have conscious conceptual awareness or understanding of them, regardless of whether they will remember the experience. Infant brains process information from their environments intensely, and experiences even in the earliest days of life can psychologically affect a child throughout life.146 Dwyer argues that although there is a presumption that birth parents have the constitutional right to be the legal parents of their child, the US Constitution contains not a word about parenthood, and the Supreme Court has never held that there is such a right.147 Expounding on this, he says New York law creates a presumption that every woman who delivers a baby while incarcerated may, if she chooses, keep the baby with her in prison unless the chief medical offcer of the correctional institution certifes that the mother is physically unft to care for

142 143 144 145 146

James Dwyer, ‘Jailing Black Babies’ (2014), Utah Law Review Volume 3, 465–541. James Dwyer, ‘Jailing Black Babies’ (2014), Utah Law Review Volume 3, 465–541. James Dwyer, ‘Jailing Black Babies’ (2014), Utah Law Review Volume 3, 465–541. James Dwyer, ‘Jailing Black Babies’ (2014), Utah Law Review Volume 3, 465–541. Douglas Goldsmith et al., Separation and Reunifcation: Using Attachment Theory and Research to Inform Decisions Affecting the Placement of Children in Foster Care, JUV And FAM CT.J, I, 8 (2004), (‘Infants are capable of recalling experiences from the frst days of life … The memories are largely perceptual and are encoded through touch and sound … [E]even years following an event, though inaccessible to the consciousness, the memory may still infuence the child’s behaviour and psychological responses’); see also James Dwyer, ‘Jailing Black Babies’ (2014), Utah Law Review Volume 3, 465–541. 147 William & Mary Law School Research Paper No. 09-2392014 Utah L. Rev. 465 (2014).

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the child. In his view, advocacy for the practice of allowing babies into prison depends on the pretence that there is no confict of interest between incarcerated women and their newborn offspring.148 Dwyer’s argument is that upon release from prison, many women will return to the impoverished and violent neighbourhoods in which they lived before, thereby exposing their children to more of the same hardships. He therefore proposes enforced adoption, which he claims is ‘a far more attractive option for newborns than either the default position in the community or the regime in prison’.149 He observes that state actors need to recognise that advocates for incarcerated women are not necessarily reliable sources of information about the child’s welfare and the state should therefore seek that information elsewhere and ‘make children’s welfare the determinative criterion of their decisions. But this is likely to occur only when true advocates for children begin to take an interest in this quietly proliferating practice of putting children in prison’.150 The reviewed literature shows that irrespective of jurisdiction, opposition to MBUs operates from several different standpoints. Examining the political and social questions raised by prison mother–baby programmes, Jessica HansenWeaver notes that prison is no place to raise a baby.151 She states that ‘prisons are punitive and inhospitable by design. So, not surprisingly, the fact that some prisons house infant babies is shocking to most people’.152 She points out that although he considers himself a supporter of children’s rights, Dwyer’s arguments effectively set the interests of the children against those of their criminalised parents. Jessica Hansen-Weaver opposes Dwyer’s proposal for the pronouncement of some deprived residential areas as ‘no child zones, effectively removing children born into them’ and states that ‘his proposed alternative to prison nurseries and mother-infant programs is to terminate the parental rights of pregnant offenders in order to steer their children toward adoptions’.153 Dwyer’s views arguably represent a minority perspective in liberal democracies, and his focus on black women living in poverty may arguably be viewed as a policy of social eugenics. Criminality does not mean that convicted women are necessarily bad mothers, and therefore forcing them to surrender their parental rights and give up their babies for adoption is penalising them beyond their sentences. But Dwyer also claims that women offenders may actively manipulate

148 William & Mary Law School Research Paper No. 09-2392014 Utah L. Rev. 465 (2014) 48. 149 James Dwyer, ‘Jailing Black Babies’ (2014) page 494 (Utah Law Review Volume 3) 465– 541. http://scholarship.law.wm.edu/facpubs/1715. 150 James Dwyer, ‘Jailing Black Babies’, (2014) (Utah Law Review Volume 3) 465–541. 151 Jessica Hansen-Weaver, Journalism for Social Change (University of California Berkeley, April 2014). 152 Jessica Hansen-Weaver, Journalism for Social Change (University of California Berkeley, April 2014). 153 James Dwyer, ‘Jailing Black Babies’ (2014) (Utah Law Review Volume 3) 465–541. http: //scholarship.law.wm.edu/facpubs/1715.

Literature review on the rights of the child

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the system and use their children as a shield against state punishment. He argues that some women anticipating a custodial sentence could deliberately become pregnant in order to avert imprisonment. But, even if such instances could be identifed, the child to be born would be innocent of the mother’s conniving and is an equal holder of the rights envisioned under the UNCRC.154 The available literature does not provide a settled view of the benefts and drawbacks to keeping mothers and young children together in prison. Avoiding the trauma of separating mothers from their newborn babies is set against claims that the prison environment is damaging to the healthy development of babies and young children. Where there is limited agreement, however, is in the need to provide special regimes for those mothers and babies who are incarcerated together. Appropriately trained staff, the availability of parenting programmes, the provision of healthy nutrition, and an environment designed to stimulate child development are the required components from which claimed benefts stem. But, arguably, caution must be exercised in arguing that any standard of care above that which the child would be likely to experience outside the prison provides a justifcation for their remaining in custody. In Kenya, where women prisoners are typically drawn from impoverished communities, this type of tradeoff could be perceived as a compelling consideration. However, this line of reasoning needs to be frmly resisted on the ground that the expansion of imprisonment should not be the principal provider of social welfare for the poor. Once this principle is acknowledged, the inability to resource MBUs in the Kenyan context can be viewed less pessimistically. The literature is at best equivocal over the ability of MBUs to support children’s rights and best interests, which transcend to adulthood, far beyond proximity to the caregiver.

3.7 Conclusion This chapter has explored international literature on babies and young children accompanying incarcerated mothers in prison, and on the alternative practice of leaving children behind whilst the mother serves the prison term. The studies indicate that the authors, as well as the courts, mostly approach the subject from the mother’s perspective, in terms of her caregiving responsibilities to her dependent children and the limitations imposed by her incarceration. A childfocused perspective would view the child as an independent rights holder, irrespective of his or her ability to personally claim their rights in practice. The studies discussed affrm children’s entitlement to human rights, irrespective of their dependence on a convicted caregiver. However, in criminal justice practice, the child tends to be recognised principally in relation to the mother’s interests. In many cases across different jurisdictions, the child is viewed by the

154 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.

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court as a mitigating factor towards the reduction of the severity of the convicted mother’s sentence.155 In addition, the existence of a dependent child may be perceived as a source of motivation or an inducement for the mother’s rehabilitation. In both instances, however, the legal visibility of the child as an autonomous individual is overlooked. At best, criminal justice systems are focused on the child’s immediate basic needs and do not consider the long-term impact of the rights violation on the adult individual the child will grow into. Although the literature identifed some benefcial consequences associated with MBUs, this is balanced by an oppositional literature that has powerfully exposed their disadvantages. Despite the existence of domestic and international laws, a lacuna of regulation exists in the practices of the courts, which simply fail to acknowledge the duty owed by the state to the children of imprisoned mothers. This study has argued that this is the gap that has led to thousands of babies worldwide either spending their formative years behind prison bars, or being separated from their primary caregiver. Considering the long-term, negative impact that prison may have on the child, relying on the discretion of sentencers to protect the rights and interests of these children is an inadequate and indefensible response. From this literature, the lesson for members of parliament in collaboration with the criminal justice system and other stakeholders such as the children’s department, probation department, the police department, the prisons department, the prosecution and state law departments, among others, is the imperative to adopt a child-focused perspective in addressing the needs of prisoners’ children.

155 ‘Second Annual Review of the Commission on Women and the Criminal Justice System’ https://www.fawcettsociety.org.uk/Handlers/Download.ashx?IDMF=014e37e4-93d94a3f-9ecb-8f98f54324b8

4

Evolution of women imprisonment in Kenya and the effects of incarceration on their dependent children

4.1 Chapter abstract Before the advent of colonialism, women and children in Kenya were conceptualised as enablers for male prosperity in terms of providing labour and, in the case of daughters, dowry for the man’s family. Women were denied the chance to acquire education or property, leading to the dominant male leadership in Kenya. It will be argued that these detrimental social structures have supported a society that has disregarded women and children’s autonomy as equal holders of rights, leading to many of the problems discussed in this book. Such problems include incarcerating pregnant mothers and women with dependent children who are suitable for non-custodial sentences, while subjecting the children she leaves behind to immense suffering. It will be argued that the practice renders these children institutionally invisible to the legal system, whose main focus is punishing the convicted caregiver. It will be concluded that internationally, most offences committed by imprisoned women are economically driven, and that the deeply imbedded patriarchal mindset continues to inform legal and political decision making in ways that inhibit women’s advancement and the realisation of children’s rights and interests.

4.2 Introduction Geographically, Kenya is one of the 54 states in the African continent and borders the Indian Ocean, with a coastline of 356 kilometres. Kenya was declared part of the British protectorate in 1895 before becoming a British colony in 1920.1 By the end of 2017, Kenya had a population of 49,699,862, and although the population of women in Kenya is marginally higher than that of men at 50.3%, the political arena is heavily male dominated, and a patriarchal mindset is deeply embedded among the general population, both male and female.2

1 History of Kenya available at http://www.historyworld.net/wrldhis/PlainTextHistories.asp ?historyid=ad21 accessed 4 December 2019. 2 There are only 23 female members of parliament out of 290 directly elected members.

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Women’s imprisonment in Kenya is an emerging practice, and therefore work in progress. At the onset of imprisonment in the country, the British colonisers appear not to have envisioned a situation where women would offend in ways that necessitated incarceration. The construction and design of the prisons during the 1950s, which are still in operation today did not therefore take into account the gendered needs of female offenders. In an attempt to cushion women, clause (6) of Article 27 of the Constitution provides that ‘to give full effect to the realisation of the rights guaranteed under this Article, the state shall take legislative and other measures, including affrmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination’. In addition, under Article 27(8), the Constitution attempts to clarify that ‘in addition to the measures contemplated in clause (6), the state shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender’. However, this progressive move has not been achieved nine years down the line since the male lawmakers use their numbers to block bills aimed at actualising the spirit of the Constitution. Women’s representation is therefore still low with women comprising 31% in the upper house and 22% in lower parliament. Arguably, the presence of more female members of parliament would enhance the prospect of legal reforms aimed at removing mothers with caregiving responsibilities from custody. Despite the presence of equality legislation, it is argued that unlike some other African countries, in Kenya Women and girls remain disadvantaged socially, economically and politically … women make up only a third of the 2.5 million people employed in the formal sector … and while women provide 80% percent of Kenya’s farm labour, they own 1% of agricultural land. The percentage of women in Kenya’s parliament is lower than its East African neighbours such as Ethiopia, South Sudan, Burundi and Rwanda.3

4.3 Justice before and after the advent of colonialism in Kenya Before the advent of colonialism, the indigenous traditional forms of dispute resolution were mostly based on principles of restorative justice. The British colonisers tried to maintain this leadership by allowing the local chiefs to continue ruling the Kenyan rural areas.4 This was aimed at reducing ‘the delays and backlog of cases occurring at the formal customary courts and at the English-based

3 Nita Bhalla, MPs: ‘Kenya Must Pass Women’s Representation Bill or Risk Constitutional Crisis’, available at http://news.trust.org/item/20181127183127-ax7z8 accessed 20 December 2018. 4 World Factbook Of Criminal Justice Systems: Kenya, available at https://www.bjs.gov/content /pub/pdf/wfbcjsk.pdf accessed 6 December 2018.

Evolution of women imprisonment in Kenya 67 courts’.5 Upon being declared a British colony in 1921, the colonial parliament passed laws that introduced a statutory system of criminal law into Kenya for the frst time. However, the criminalisation of some conduct, such as the practice of bigamy, which was a respected traditional practice among some of the main tribes in Kenya, led to serious resistance against British rule. By 1950s, a major resistant movement emerged, mainly marked by the Mau Mau uprising against colonisation, ultimately leading to Kenya’s independence in December 1963.6 But by this time, the colonial government had built prisons ‘designed to pacify the restive and recalcitrant African natives’.7 Kenya enjoyed a cohesive social structure with well-defned normative codes founded on traditional concepts of justice. For example, in central Kenya, the social order endeavoured to ensure that everyone was under close supervision by fellow members of the community and all under the leadership of the village elders, the sub-chief, and the local chief.8 Consequently, few offences were committed in the communities due to an instilled self-discipline and lack of situational opportunities to commit offences. For example, geographical limitations made it virtually impossible for offenders to escape justice, since all movement was limited to areas belonging to their families, clans, and tribes. The communities guarded their territories fercely, and trespassing would raise suspicions of spying and risk hostility and violent retaliation. In most cases, offences that occurred were accidental and considered with a high degree of mitigation and consequent leniency. The few offences considered to have been deliberately committed, such as theft, robbery, arson, rape, murder, or witchcraft, were dealt with expeditiously. Once proven by elders, the sentence would be pronounced, and punishment publicly carried out by the offender’s family or clan members, as they were held responsible for raising such a human being. They were therefore required to make atonement by the family publicly executing the punishment against their own member. If the punishment

5 World Factbook Of Criminal Justice Systems: Kenya, available at https://www.bjs.gov/conte nt/pub/pdf/wfbcjsk.pdf accessed 6 December 2018. 6 World Factbook Of Criminal Justice Systems: Kenya, available at https://www.bjs.gov/content /pub/pdf/wfbcjsk.pdf accessed 6 December 2018. 7 Olivia L. A. Onyango-Israel, ‘Overview of the Kenyan Criminal Justice System’ available at https://www.unafei.or.jp/publications/pdf/RS_No90/No90_20PA_Onyango-Israel.pdf accessed 5 December 2018. 8 This information was passed down to me during folktale times which consisted of my siblings and cousins sitting by the freside in the evenings and listening to stories about our historical background from our late maternal grandmother Maria Nyambura Gichuhi (Wagoni) and my late paternal grandmother Teresia Kanini Gitaka as well as my late father Joseph Muiruri Gitaka (Ndirite) and my mother Patricia Wanjiku Muiruri. Like many other elderly people from central Kenya, Senior Deputy Commissioner of Prisons John Kimani Matheri confrmed having undergone similar training from his grandparents and parents. The folktales, songs, and dances which were passed down from one generation to the other by the elders were meant to perpetuate and carry on the community’s institutional memory and to teach the generations about the origin of their forefathers, their culture, and their way of life as well as to guide children on how to relate and conduct themselves.

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warranted compensation and the offender was not in a position to pay, then his or her family or clan was expected to provide compensation on the offender’s behalf. Even when the offence warranted a more serious punishment like banishment or death, the community still expected the offender’s family or clan to effect the punishment. Different communities, and even clans within a single community, exerted different punishments or penalties for similar offences. The less serious offences were usually met by compensation in the form of foodstuff and livestock. Banishment could be imposed for more serious offences and involved the offender being sent away, never to return to his family, clan, or community. In some instances, where the offence resulted in the loss of human life, young boys or girls were given to the offended family to raise as their own, thereby beneftting from their labour or dowry payments, in the case of a girl.9 The imposition of penalties for serious offences was exacted against the body of the offender. In line with Foucault’s observation about the technologies of punishment in premodern societies, the penalties meted out for the most serious offences, such as witchcraft and murder, were meant to occasion serious injury, and at times the eventual death of the perpetrator.10 The most severe punishment involved bees being set upon an offender; being set on fre; being thrown down a steep cliff after being put in a sealed beehive; or being thrown down a waterfall.

4.4 Women’s imprisonment in Kenya According to United Nations estimates, in July 2018, Kenya had a population of just over 48 million, of whom over 57,000 were held in 108 prison institutions.11 By March 2017, the overall rate of imprisonment stood at 118 people for every 100,000. Women represent 6% of the total prison population,12 which is higher than that of Uganda with a population of 39 million, with 115 people being imprisoned for every 100,000 and women comprising 5% of the prison population. Tanzania has a population of 49 million where the rate of imprisonment is 69 people in every 100,000, with women representing 3% of the total prison population. Kenya’s rate of imprisonment is slightly lower than that of England and Wales, which incarcerates 149 people per 100,000, with women representing 5%–6% of the prison population.13

9 According to my late maternal grandmother Maria Nyambura Gichuhi (Wagoni), the boys and girls given as compensation were in no way mistreated by the recipient family. They were fully incorporated and raised by the new family as their own, which worked to reconcile the two families with no bad blood between them. As the children grew and thrived, they worked as a constant reminder of the peace pact and harmony to which the two families were committed. 10 Michael Foucault, Discipline and Punish: The Birth of Prison, Penguin Books: Australia, 1975. 11 Available at www.worldometer.info>kenya-population accessed 18 March 2017. 12 World Prison Brief – Institute for Crime and Justice Policy Research, available at www.prisonstudies.org accessed 15 June 2018. 13 World Prison Brief – Institute for Crime and Justice Research, available at www.prisonstudies .org accessed 15 June 2018.

Evolution of women imprisonment in Kenya 69 The Kenya prison department was established in 1911 based on British common law practice. The prison’s mandate is to safely contain offenders, facilitate the administration of justice, reform and rehabilitate offenders, and promote their reintegration into society. By 2015, the average daily population of women in Kenyan prisons was over 4,000, and almost 400 of their children accompanied them therein.14 Women prisoners are held separately from men. Like many other colonised African countries, the prison buildings ‘were designed and built during the colonial era with a completely different philosophy for the treatment of offenders’ when penal treatment aimed at the ‘retribution and incapacitation of offenders with very cruel and inhumane penalties’.15 The current penal practice is heavily founded on retributive measures tailored for male offenders and does not take the distinctive needs of female offenders into consideration. Originally, the targeted offenders were men engaged with organised resistance to colonialism, as women were not regarded as a group capable of staging violent unrest. Consequently, the colonialists did not initially establish prison institutions for women, and the few women who offended were held inside the male prisons, albeit in separate wings. This practice is still occurring in some areas in the provinces furthest away from Nairobi, such as North Eastern. Originally, therefore, there were no tailored systems for women inmates, let alone for children accompanying their mothers therein. Additionally, there were few women offcers recruited into the service until around the time of Kenya’s freedom struggle when the population of women inmates increased rapidly, as women from central Kenya were drawn into the struggle for independence.16 This led to the establishment of Lang’ata women’s prison, the frst dedicated prison for women.17 The other 34 women’s prisons were gradually introduced after independence.18 In Kenya, there has been a deliberate attempt to establish women’s prisons in all

14 Faraja Trust, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’, available at https://www.faraja.net/index_en.php accessed 30 September 2018. The research, which was conducted at Lang’ata Women Prison, indicated that there were 370 babies in Kenyan prisons in 2012, with Lang’ata Women, the largest women’s prison in Kenya, holding a total of 80; see also Alice Macharia ‘Analysis of the Rights of Children Accompanying Their Incarcerated Mothers in Kenyan Prison’, Master of laws thesis submitted to Nairobi University in November 2013. 15 Olivia L. A. Onyango-Israel, ‘Institutional Treatment of Female Offenders in Kenya’ (2012) 1. She was the then offcer-in-charge of Kamiti Medium Security Prison and is currently the offcer-in-charge of Lang’ata Women Maximum Security Prison, which is the largest women’s prison in Kenya. http://www.kenya-information-guide.com/kenya-government.html. 16 My maternal grandmother, Maria Nyambura Gichuhi (Wagoni) was one of these women, and she would tell us how dangerous it was to venture out in the dead of the night to take hot roast meat and Mukimo, a mixture of boiled beans and maize fnely mashed with Irish potatoes, to our grandfather and her brothers in the forest. The trips were highly coordinated to avoid being arrested not only by the colonisers but also by their African sympathisers, who were even worse as they were familiar with the local languages and the terrain and could therefore easily decipherer the coded communication and betray them to British soldiers. 17 The frst women’s prison was established during the emergency period by the colonial government vide Kenya Gazette Notice No. 1132 of 1954. 18 John Kimani Matheri, Senior Deputy Commissioner of Prisons, Kenya, 2012.

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the counties so that women remain closer to their homes and maintain contact with their families, although lack of bus fare may still curtail family visits to the prison.19 There are no fxed standards of accommodation for women in Kenyan prisons, but in most cases, they are held inside stone-walled buildings divided into cells holding around 50–70 inmates. Those with their children live with them therein. Initially, there were no beds for prisoners, but currently, the situation is improving, with all female prisoners at Lang’ata having beds. However, there continues to be a shortage of appropriate bedding in all the prisons. The day-to-day routine of the women’s prison is focused principally on the containment of convicted offenders. Clean Start Kenya, which is a social enterprise founded by an ex-prisoner, observes that most women on release lack a place to live and the means to earn a living. But, too often, they lack not only material resources and skills but also the knowledge and confdence to handle the huge challenges they face in fnding daily food and shelter, tracing their children, and attempting to build a sustainable livelihood. Clean Start Kenya observes that Many women inmates dread their release day as they fear how they will cope with daily life and overcome multiple barriers and stigma post-release. Since there is no social service provision in Kenya, unless they have family or friends to receive them, these women are on their own. Isolation, depression and fear take hold and they become vulnerable to exploitation. The only options for them, for example, petty crime, survival sex and attempted suicide, are often the very things that take them through the revolving doors and back into prison. The recidivism rate for women and girls in Kenya is 52%.20 Women’s imprisonment in Kenya is a work in progress. As pointed out earlier, the pathway to women’s crime in Kenya originated during the struggles for independence, when women committed relatively trivial offences by delivering food to their warring male relatives in the forest. Being left alone meant that these women had to fnd ways of becoming the sole providers for their children. Today, most women appearing in Kenyan courts continue to be charged with less serious offences, such as stealing or hawking foodstuff without licences. In addition, the Kenya National Bureau of Statistics (KNBS) 2018 report shows that 64% of offences committed by Kenyan women were alcohol related.21 Most of these

19 The women’s prisons are distributed within all the counties with fve at the Coast; six in Central, including Kamae borstal institution, specifcally handling young girls; eight in the Rift Valley; eight in Western; seven in Eastern; and one in North Eastern. 20 Nation Newspaper’s Saturday Magazine, 16 February 2019. Clean Start, a social enterprise that seeks to restore the dignity of ex-convicts, was founded by Teresa Njoki, a bank manager convicted of banking fraud in 2011. 21 Kenya National Bureau of Statistics 2018 Report; See also Mumbi Mutuko, ‘Most Women in Kenya Jailed for This Crime’ available at https://www.kenyans.co.ke/news/29199-most -women-kenya-jailed-crime accessed 24 December 2018.

Evolution of women imprisonment in Kenya 71 women make illicit brews in their houses and sell to the locals to raise money to feed their children. When convicted, the majority of these women are imprisoned for less than three years, which arguably makes them suitable for non-custodial sentences as pointed out under Section 8.3 of the Sentencing Guidelines and Section 3.1 of the Community Service Order.22 Yet, the courts continue to subject them to imprisonment, even in cases where they are visibly pregnant or accompanied by a dependent child. If a prisoner dies in custody, the relatives are notifed and given the opportunity to make arrangements for the disposal of the body of their kin. If they want to take the body, they may do so after the post-mortem and other formalities of documentation. In cases where the family is unwilling or unable to collect the body, it is handed over to the health authorities for disposal in accordance with the Public Health Act.23 An inquest fle is opened for all prisoners who die inside the prison in order to establish the cause of death and to rule out any foul play on the part of the prison authorities or other prisoners.24 However, for children accompanying their mothers in prison, there is no offcial record of their existence in the secure facilities and whether a post-mortem overseen by the relatives to establish the cause of the child’s death is performed, or indeed how the disposal of their bodies is carried out. In the view of this study, this is an area crying out for urgent attention.

4.5 Children accompanying their incarcerated mothers in Kenya It was noted that in Kenya, at least 380 children accompanied their mothers in custody in 2015.25 The practice of allowing children to accompany their mothers

22 Kenyan Sentencing Policy Guidelines (2016) Section 8.3; see also Section 3. 1 of the Kenyan Community Service Order Act, Revised Edition2016 [2012], which provides that ‘Where a person is convicted of an offence punishable with (a) imprisonment for a term not exceeding three years, with or without a fne or; (b) imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fne, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service’. 23 Section 81 (3) (a) provides that the Cabinet Secretary for Health may, after the death of a person and if none of the persons immediate family members, to wit the spouse or spouses, elder child, parent, guardian, eldest brother or sister, can be located, donate the body or part or any specifc tissue of that person to an institution or to the contemplated person. 24 John Kimani Matheri, Senior Deputy Commissioner of Prisons, Kenya, 2018. 25 Faraja Trust, ‘Hundreds of Children Under Four Live in Prison With Their Mothers’ available at https://www.faraja.net/index_en.php accessed 30 September 2018. The research, which was conducted at Lang’ata Women Prison, indicated that there were 370 babies in Kenyan prisons in 2012, with Lang’ata Women, the largest women’s prison in Kenya, holding a total of 80; see also Macharia, Alice, ‘Analysis of the Rights of Children Accompanying Their Incarcerated Mothers in Kenyan Prison’ Master of laws thesis submitted to Nairobi University in November 2013.

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in prison is a development that only came about after Kenya’s independence and the enactment of the Prisons Act in 1963. As pointed out earlier, Section 30 of the Act provides for the possibility of the offcer-in-charge of the particular prison to allow children below four years into prison, if they are actually with the mother at the time of her admission. As the offcer-in-charge of Kamiti Medium Security points out, one of the major problems with the criminal justice system in Kenya is a lack of coordination or communication between different agencies: Besides the uncoordinated manner in which partners in the criminal justice system dispense of their work, there is lack of policy framework to regulate and coordinate the functions of all the criminal justice agencies and to harmonise their functions. Every agency independently pursues its policy agenda without due consideration of the effect of their activities on other institutions. This uncoordinated approach to addressing justice issues leads to problems in other sectors.26 Although, in theory, child protection is provided under the Children Act [2012], the absence of integrated policies and practices is refected in the lack of formal acknowledgement of women’s pregnancies and their accompanying babies when women are brought before the court. At the plea-taking stage, the court may take note of the physical condition of the accused person, especially if they have visible injuries or appear unwell. The court may even mention a visible pregnancy or the presence of a child accompanying an accused mother in court. But the sentencer is not legally required to consider the baby’s rights and interests, or those of the unborn child, when selecting the sentence for the mother. The focus of the court is solely on the accused person. If the mother enters a plea of guilty, the plea-taking court may proceed immediately to pronounce the sentence and dispose of the case. However, where a plea of not guilty is entered, the court may refer the matter to the senior court for trial on a date that will normally be several months ahead. The court does have the discretion to consider the baby’s predicament, but to do so it must request a pre-sentence report from other stakeholders, such as the probation department or the children’s department. This report assesses the woman’s suitability for a non-custodial sentence and may take account of the impact of the sentence on the baby. In most cases, however, due to the heavy caseload in most Kenyan courts, especially those within the city centres, where there can be as many as 30 cases heard per day, sentencers usually pronounce a custodial sentence in the absence of a pre-sentence report. In addition, the court is not required to consult with the prison department, which only enters the picture when the convicted mother and baby arrive unannounced at the prison gate. During a face to

26 Olivia L.A. Onyango-Israel, ‘Institutional Treatment of Female Offenders in Kenya’ (2012) 147, available at https://www.unafei.or.jp/publications/pdf/RS_No90/No90_19PA_Ony ango-Israel.pdf accessed 17 January 2019. Olivia Onyango was the then offcer-in-charge of Kamiti Medium Security Prison, now offcer-in-charge of Lang’ata Women Maximum Security Prison.

Evolution of women imprisonment in Kenya 73 face interview in 2012, John Matheri observed that children allowed into custody are not considered as inmates, and therefore ‘there has been minimal consideration of the child’s welfare as they are treated as lodgers who would leave after a while’.27 Matheri noted that in most cases, the children in prison are not necessarily with or being taken care of by their mothers throughout the day. One, or a few prisoners, not necessarily with her kid there, but reputed as good in childcare, is assigned the responsibility of taking care of the few children in the prison during the day by the offcer on duty, while their mothers proceeded to work. The mothers who were still breastfeeding are only allowed to do so at set times in the course of the day. They were however allowed to have their babies at night and other times when the mothers are not required to be working or engaged in other activities.28 One impressive contribution made towards the protection of children in custody is from Father Peter Meienberg, a Catholic priest who spearheaded the building of the Faraja Foundation day-care facility at Lang’ata, and consequently where the majority of children accompanying incarcerated mothers are held. He observes that there ‘are no adequate resources to allocate additional food for the children, meaning that the mothers have to share their meals with their children’.29 Father Meienberg adds: I felt that the children had a right to live the ordinary life of a child, and they were deprived of that. They stayed with their poor mothers for 24 hours a day, they listened to all the negative things they heard … and so I decided that something has to be done. They have a right to live the ordinary life of a child.30 Speaking about the benefts of the day-care centre for the children, the CEO of the Faraja Foundation describes the colourful playroom, which has many different games and toys that keep the children mentally engaged and stimulated during the day; ‘basically, they can spend the whole day, eating nutritious food alone, play alone amongst themselves, and in the evening, go back to be with their mothers. That is what drove us to do this project’.31

27 John Kimani Matheri, Senior Deputy Commissioner of Prisons, Kenya, 2015. 28 John Kimani Matheri, Senior Deputy Commissioner of Prisons, Kenya, 2015. 29 These sentiments were echoed by Faraja Trust founder Fr. Peter Meienberg. This organisation, which helps the needy in Kenya, including prisoners, has collaborated with Kenya Prisons Service to form the Early Childhood Development Resource Centre. The aim of the centre is to mitigate the negative effects of social isolation brought about by parental imprisonment. The children of the prisoners are allowed to mix with children from the local area during the day and return to their mothers in prison in the evenings. 30 Fr. Peter Meienberg, Faraja Trust founder. 31 Kenyan report by Zadock Angira, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’, https://allafrica.https://allafrica.com/stories/201202220081.html/stories/201202220081.html

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However, despite these improvements, innocent children remain within a penal environment designed to punish their mothers for crimes committed. During the opening of the Lang’ata day-care centre, the offcer-in-charge made an important observation about the limits faced by the prison authority in providing for the women’s children. She noted that because the children had not been formally convicted, they lacked a committal warrant. In Kenya, the committal warrant comprises the conviction documents that secure recognition, protection, and accountability for the offender from the prison authority. It is this document that provides for accommodation and all forms of life-support to the imprisoned offender, including food and medical services. The child does not have such a warrant, and without it, he or she is administratively invisible. The economic challenges faced by a developing country like Kenya results in the lack of specially designed or separate accommodation for imprisoned mothers with babies. Women are compelled to raise their children alongside other convicted women in the main prison, where essential facilities, such as children’s clothing and medical care, are scarce. The babies in prison are therefore generally faced with congestion, unhygienic conditions among many other problems. The babies are also made to follow the prison’s strict timetable which is formulated with the convicted adults in mind, such as being subjected to the 6am routine roll call where inmates are required to squat in a straight line.32 Decrying the fast-rising number of babies held in prison, the offcer-in-charge of Naivasha Women’s Prison opines that prison environment is ill-suited to raise babies and explains that inadequate funding has meant that prisons in Kenya have to depend on charitable donations to support the incarcerated children.33 Adding his voice to this concern, the offcer-in-charge of Naivasha Men’s Prison argues that ‘it is unfair to continue holding the innocent minors for crimes committed by their mothers’. We have more than 20 minors staying with their mother at Naivasha Women’s Prison, and this must be confronted … one way of dealing with this problem is reducing the length of their custodial sentences … the foundation of the minors should not be compromised.34

32 Kenyan report by Zadock Angira, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’, https://allafrica.com/stories/201202220081.html. See also Vincent Achuka, ‘Victims of Fate: The Sorry Plight of Children Jailed with Their Mother’, June 2016, https://nation.africa/kenya/news/victims-of-fate-the-sorry-plight-of-children-ja iled-with-their-mothers-https://nation.africa/kenya/news/victims-of-fate-the-sorry-pl ight-of-children-jailed-with-their-mothers-1211822 33 Esther Kibet Esther, offcer-in-charge, Naivasha Women’s Prison, 2015, https://www.sta ndardmedia.co.ke/kenya/article/2000154841/babies-behind-bars-paying-for-the-sins-of -their-mothers 34 Patrick Mwende, offcer-in-charge, Naivasha Prison, 9 April 2017, https://www.standard media.co.ke/kenya/article/2000154841/babies-behind-bars-paying-for-the-sins-of-theirmothers

Evolution of women imprisonment in Kenya 75 The regimes in women’s prisons in Kenya can also be violent, with prison warders treating prisoners in ways that may negatively affect the children, who become accustomed to the authoritarian and adversarial environment of prison societies. In the view of one social worker, this ‘makes the children’s eventual transition from the prison to the outside community particularly challenging’.35 She points out that children become accustomed to being disobedient and that They lack basic mannerism, cannot cope with other children, talk like adults and are used to an environment where everything is done through ordering and fghting … The signs are apparent … For instance, you can tell a child it is time to go to school and he says ‘No’.36 But the risk of harm that young children face is not just from the living conditions in prison. Mothers convicted of child neglect may still retain primary caring responsibilities in prison for a child they have abused. The failure to recognise the signifcance of this risk to children is illustrated by an alarming observation from a counsellor working with abused women and minors in Kenya. She notes that although the children living in prison with their incarcerated mothers lack the opportunity ‘to play with their age-mates or engage in age-appropriate activities, this can be a blessing in disguise for women convicted of child neglect’.37 In her view, this is because they have to learn that their children are their responsibility, and incarceration teaches them this lesson the hard way.38 From a child rights perspective, allowing such a mother to retain primary caregiving responsibilities, even in a secure facility, endangers the wellbeing of that child. This results not only from the poor living conditions in prison, but also from the mother who has a history of neglecting the child, and who may even resent and blame the child for their conviction and subsequent imprisonment. These concerns are exacerbated further by the fact that Kenya lacks a reliable system of calculating the density of the child population in different prisons.39 In addition, there are no records detailing the numbers and cause of children’s deaths while in custody, nor any documentation pertaining to the post-mortem or disposal of the child’s body.

35 Kenyan report by Zadock Angira, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’, https://allafrica.com/stories/201202220081.html. 36 Kenyan report by Zadock Angira, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’ https://allafrica.com/stories/201202220081.html. 37 Kenyan report by Zadock Angira, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’ https://allafrica.com/stories/201202220081.html. 38 Kenyan report by Zadock Angira, ‘Hundreds of Children Under Four Live in Prison with Their Mothers’ https://allafrica.com/stories/201202220081.html. 39 In the absence of evidence of an independent report on the exact number of the dependent children accompanying incarcerated mothers in Kenyan prisons, the fgures relied on are those given by the prison authority, with no way of verifying their accuracy.

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4.6 Children left outside as the mother serves custodial sentences in Kenya Kenyan mothers often have several children, and imprisoning a mother should ordinarily call for detailed inquiries into her caregiving responsibilities. However, there are no suffciently coordinated links within the criminal justice system that enable the timely collection of such evidence to present to court before sentencing. During a face to face interview I conducted with John Matheri, he reported that the prison system was not responsible for a prisoner’s children in the community, even if they were within the age bracket of four years and below and therefore eligible to remain with their mother in custody.40 In effect, this means that, in addition to the legal invisibility of the child in court with the mother, the children she leaves behind in the community are similarly eclipsed by the criminal justice system. There are various reasons why the family of the convicted mother may fail to accept responsibility for her child. The safety and wellbeing of these children may be at risk as a result of the poor economic standing of the relatives who are expected to provide for the children left with them by the mother. The Clean Start organisation in Kenya observed that the majority of female offenders in Kenya come from diffcult background, having lived in the slums and struggling with all the issues that poverty brings. Many are single mothers who are also the bread winners in their homes. Survival crime is sometimes the only way to make ends meet. Others may have histories of domestic violence, trapped in abusive relationships, while others are HIV positive.41

4.7 Society’s patriarchal mindset working against women internationally Arguably, the notion of equal opportunity exists more in theory than in practice. Women’s value has been traditionally conceived in relation to her ability to enable her husband to sire children. Under customary law, a man was allowed to marry as many women as he was capable of taking care of, so long as he had the ability to provide for their children, who in time would increase his wealth. Previously, the frst wife in a customary-law marriage had powers to select for her husband the women he would subsequently marry, in order to facilitate harmonious relationships within the family. However, in 2014, the male members of parliament used their majority status to remove this clause from the law,

40 John Kimani Matheri, Senior Deputy Commissioner of Prisons, Kenya, 2012. 41 Clean Start Kenya, ‘Women and Girls in Prison’, available at http://cleanstart.co.ke/our -work/ accessed 17 January 2019.Otto Pollack (1950), The Criminality of Women, University of Pennsylvania Press, available at https://www.questia.com/library/105265842/the -criminality-of-women accessed 7 December 2018.

Evolution of women imprisonment in Kenya 77 thereby allowing men to marry as many women as they chose, with or without the frst wife’s approval.42 It is important to point out that Christian and civil marriages only provide for one wife, and so a couple intending to marry must agree in advance on the form their marriage will take as it cannot be changed subsequently. During the passing of the controversial Marriage Act bill, the few women parliamentarians had objected and walked out in protest, and the bill was passed in their absence, and later signed into law by the president. Commenting critically on women’s lack of strategic leadership in her article in the Nairobi law monthly magazine, Mwenda Chuma observes that Kenyan ‘women politicians must learn to craft their strategy around’ issues that directly affect women in order to draw women to vote for them Unfortunately, our women politicians have resulted to just throwing in their hat as it were, without a properly thought out manifesto … What passes for women’s liberation movement needs clarity of purpose. The issues affecting women can only be best dealt with by women themselves. This has informed political inclusion in other jurisdictions. Issues like maternal mortality, domestic violence, girl child education, early marriages etc are by their nature gender sensitive.43 Although sons were more valued under customary law due to the perpetuation of the family lineage through the male line, it was the daughters who brought dowry to the family upon marriage, initially in the form of livestock, such as cows and goats, but now this has been principally replaced by cash. Divorce was despised as it brought shame to both the families, and in some instances compelled the father to return the dowry paid for his daughter. However, this trend is changing. Previously, women remained at home, tending the farm and raising children, whilst men were more likely to be offered opportunities for education and employment. Today, however, women are increasingly offered equal opportunities to education and inheritance of property, as well as equal pay. As a consequence, they are more able to contribute meaningfully to the family’s fnancial wealth and also acquire personal wealth if they are single. Frances Heidensohn traces the origins of feminist criminology to 1960s, especially in terms of student movements and cultural and social shifts, and observes that the feminist perspectives ‘are the most successful developments in criminology

42 Marriage Act Kenya (2014) available at http://kenyalaw.org/kl/fleadmin/pdfdownloads /Acts/TheMarriage_Act2014.pdf accessed 8 January 2019; see also Daily Nation, ‘Uhuru Kenyatta signs Marriage Bill into Law’, available at https://www.nation.co.ke/news/Uhuru -assents-to-law-allowing-polygamy/1056-2297540-x731pa/index.htmlhttps://www.nati on.co.ke/news/Uhuru-assents-to-law-allowing-polygamy/1056-2297540-x731pa/index .html accessed 9 January 2019. 43 Mwenda Chuma, ‘Women Liberation has Come of Age’, The Nairobi Law Monthly, Vol 9 Issue 7 (July–August 2017) 72–73.

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of the second half of the 20th Century’.44 in In Kenya, women’s capacity to have their voices heard may be traced to the 1950s and 1960s Female Movement, which had its origins in the Kennedy Airlift whereby the late Tom Mboya airlifted bright Kenyan girls to the USA and the UK to receive a Western education.45 The frst batch, which included the late Nobel Laureate Professor Wangari Mathai, Professor Micere Mugo, and Professor Julia Ojiambo, among others, have played a critical role in the empowerment of Kenyan women. However, it was not until 1995, during the Fourth World Conference on Women held in China, that the feminist movement in Kenya was acknowledged, with the government sending a delegate to Beijing to represent Kenyan women. This move opened up the debate on issues affecting women to the general public and consequently a call for greater representation in the political arena. However, in the context of the maledominated background, the feminist movement in Kenya is a work in progress.

4.8 Conclusion Internationally, most offences committed by imprisoned women are economically driven. The community therefore needs to rethink the heavy responsibility it places on mothers with a view to understanding and appreciating what propels them into offending. Although the prison authority may be aware that some of these women leave behind children who may become homeless and end up living as street children, the prison mandate and fnancial support from the government is limited only to sustaining the life of the prisoner. In my experience as a sentencer, there is growing concern over the number of ruthless young offenders appearing before the court who, in the course of the hearing, turn out to have grown up on the streets after the imprisonment of their caregiver. It is an area in need of further research and urgent government intervention. Internationally, a widely held conceptualisation of a woman is that she is inherently passive and more obedient than a man. Supporting this view, Cecilia Saulters-Tubbs observes that since ‘society views a woman as passive, meek, and malleable’, the only violent crime that attracts public sympathy is one she commits in self-defence.46 Consequently, unlike women who commit stereotypically feminine offences such as prostitution, theft, and fraud, those who commit masculine offences such as robbery, homicide, or assault are said to ‘betray their womanhood’ and therefore warrant ‘more severe treatment’.47 Labelling and

44 Frances Heidensohn, ‘The Future Of Feminist Criminology’, Crime, Media, culture, Vol 8 (2) 123-134 August 2012. 45 Mwenda Chuma, ‘Women Liberation has Come of Age’, The Nairobi Law Monthly, Vol 9 Issue 7 (July–August 2017) 72–73. 46 Cecilia Saulters-Tubbs, ‘Prosecutorial and Judicial Treatment of Female Offenders’, Federal Probation – A Journal of Correctional Philosophy and Practise, Administrative of the United States Courts Vol LVII June 1993 No.2, 37, available at https://www.ncjrs.gov/pdffles1/ Digitization/144740NCJRS.pdf accessed 7 December 2018. 47 Cecilia Saulters-Tubbs, ‘Prosecutorial and Judicial Treatment of Female Offenders’, Federal Probation – A Journal of Correctional Philosophy and Practise, Administrative of the United

Evolution of women imprisonment in Kenya 79 social control theorists hold the view that this is founded on the perception that female offenders violate not only the law but also the prescribed gender. Theorists emphasise the signifcance of social reaction to women who do not think, behave, or exist according to socially prescribed roles. Unlike men who fall into a deviant category, women are deemed more immoral because deviance supposedly goes against their very nature. Women offenders are therefore guilty of double deviance.48 In contrast to this perspective, there is a dominant school of thought in AngloAmerican criminology which argues that female offenders receive more lenient treatment in the criminal justice system than men. Nevertheless, Cecilia SaultersTubbs opines that ‘male judges and prosecutors treat females more leniently because our society has taught them to approach females in a fatherly, protective manner and to assume that females have an inherently submissive, domestic nature’.49 Price and Sokoloff view this paternalistic shielding through a less benign lens. They imply that such patriarchal ‘protection’ offered to women serves only to appropriate their rights, oppress their aspirations, and inhibit their confdence.50 Supporting this view, Datesman and Scarpitti point out that a major cost to the women who receive chivalrous treatment is ‘the continuation of a state of public consciousness which holds that women are less able than men and are thus in need of special protection’.51 Arguably, there is a potential risk that arises from the hostility of members of the community who condemn women who offend, and who often victimise and mistreat their children. Generally, there is a commonly held fear that the child of a female offender may inherit their mother’s traits and follow her footsteps into crime, becoming a bad infuence within the family and a disgrace to the community. The tendency for the extended family to avoid such children cannot be underestimated. In many other jurisdictions across the world, women who have

48

49

50

51

States Courts Vol LVII June 1993 No.2, 37, available at https://www.ncjrs.gov/pdffles1/ Digitization/144740NCJRS.pdf accessed 7 December 2018. Cecilia Saulters-Tubbs, ‘Prosecutorial and Judicial Treatment of Female Offenders’, Federal Probation – A Journal of Correctional Philosophy and Practise, Administrative of the United States Courts Vol LVII June 1993 No.2, 37, available at https://www.ncjrs.gov/pdffles1/ Digitization/144740NCJRS.pdf accessed 7 December 2018.. Cecilia Saulters-Tubbs, ‘Prosecutorial and Judicial Treatment of Female Offenders’, Federal Probation – A Journal of Correctional Philosophy and Practise, Administrative of the United States Courts Vol LVII June 1993 No.2, 37, available at https://www.ncjrs.gov/pdffles1/ Digitization/144740NCJRS.pdf accessed 7 December 2018. Susan K. Datesman and Frank R. Scarpitti, (1980) 294, ‘Female Delinquency and Broken Homes’, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125. 1975.tb00653.x accessed 8 December 2018. Susan K. Datesman and Frank R. Scarpitti, (1980) 294, ‘Female Delinquency and Broken Homes’, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125. 1975.tb00653.x accessed 8 December 2018.

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served a prison sentence are often considered to have brought shame to their community, and especially to the family into which she is married. Subsequently, women offenders wait much longer than men to be accepted back into society and invited to participate once more in communal activities such as weddings. As the situation stands, therefore, the community continues to refect a broader set of patriarchal values that holds women and children in subordinate positions to men. Arguably, by having more women in leadership positions and acknowledging and addressing the underlying social, legal, and political structures that support gendered inequality, progressive reforms can become globally achievable.

5

Exploring the Kenyan Sentencing Guidelines in view of the children dependent on incarcerated mothers

5.1 Chapter abstract The principle of parsimony in sentencing provides that punishment should be the minimum necessary. The present chapter explains the purposes that most jurisdictions seek to achieve when punishing offenders for criminal offences and explores some of the inconsistencies and conficts that can arise in their practical realisation. For a case study, the chapter focuses on the Kenyan Sentencing Guidelines and how these advise the courts on the achievement of specifc objectives. In particular, the chapter questions the ways in which the Guidelines can be used to develop practical solutions that can internationally enable courts to punish offenders without necessarily confning them in custody, in pursuit of the legal rights of their dependent children as provided in the United Nations Convention on the Rights of the Child (UNCRC). This chapter begins with a general description of the framework of the Guidelines which are divided into fve parts and systematically explores the provisions therein from the lens of children accompanying their mothers in prison, while examining the relevant literature internationally. It will be argued that criminal courts in countries that are signatories to the UNCRC can no longer assume that they possess the moral authority to ignore the impact of their sentencing decisions on innocent children.

5.2 Introduction The Sentencing Guidelines in Kenya are generic as opposed to the practice in some developed countries where the Guidelines are offence specifc. In reference to Kenya as the case study, the current chapter explores how the Guidelines advise the courts on the achievement of specifc objectives. To this end, Part One introduces the principles underpinning sentencing and the objectives thereof, as well as the specifc objectives of the Guidelines. All sentencers are urged to familiarise themselves with the critical information under this frst section, which ‘overarches all cases during sentencing’.1 It sets out existing problems that the

1 Kenyan Judicial Service Act Section 5(1) 4.

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Guidelines are intended to address and provides clarity as well as justifcation for the specifc policy direction. Part Two of the Guidelines is made up of various sections comprising of a step-by-step analysis of each of the available penal sanctions under Kenyan law. After introducing the sanction, the sections give detailed guidance to the court on how to determine the threshold to custody for the particular sanction. This is followed by a section expounding on the suitability of non-custodial and custodial sentences in the individual case, before proceeding to examine the challenges that are likely to be encountered by the stakeholders in implementing the recommended measures, and how to overcome the same. Part Three provides guidance on the sentencing of particular categories of offenders, namely women, children, those who plead guilty, and offenders who are disabled, elderly, or mentally or terminally ill. Part Four explains the sentencing process: the roles played by all parties, the role of mitigating and aggravating factors, how the judgement should be pronounced, and how the Sentencing Guideline should be followed. Finally, Part Five promotes the inter-agency coordination within the justice system as well as a process of monitoring sentences imposed by the courts. It also looks into issues pertaining to the monitoring and evaluation of the Guidelines and levels of public awareness concerning the available sentences and the process of sentencing. It acknowledges that the effectiveness of the delivery of justice is dependent on community support, especially for non-custodial sentences. In addition to the fve-structure framework set out above, the Kenyan Sentencing Guidelines also recommend a three-step approach to the sentencing court in order to clearly structure the practical application of the Guidelines. The frst step gives guidance on measures to be taken in determining the form of the sentence that best meets the interests of justice sought by the relevant statute that created the offence. Second, the Guideline states that in deciding on the most suitable form of sentence, whether custodial or non-custodial, incarceration should be reserved exclusively for cases where a non-custodial order would be manifestly disproportionate to the seriousness of the offence, and would therefore fail to meet the sentencing objectives. The application of this recommendation would go a long way in ensuring that most mothers with dependent children serve their sentences without necessarily being confned in prison. Thirdly, the Guidelines expound on the various aggravating and mitigating factors which the court ought to consider in calibrating the severity of the custodial or non-custodial sentence in a particular case.

5.3 Background to the study In Kenya, as in most other jurisdictions, the interpretation and application of laws governing sentencing has produced unintended consequences, most notably the prevalence of custodial sentences in a number of cases suitable for noncustodial punishment; disparities in sentences imposed on offenders convicted

Exploring the Kenyan Sentencing Guidelines 83 under similar circumstances or similar offences; and a lack of transparency in how decisions about sentences are reached.2 Pursuant to the provisions of Article 21 of the Kenyan Constitution,3 the National Council on the Administration of Justice (NCAJ), which is a multisectoral oversight coordinating council, developed generic Sentencing Guidelines pursuant to Section 35(1) of the Judicial Service Act 2011.4 The mandate of the NCAJ ‘is to ensure a coordinated, effcient, effective and consultative approach in the administration of justice and reform of the justice system’.5 The NCAJ is comprised of both government offcials and non-state actors as provided for under Section 34 Judicial Service Act 2011.6 The NCAJ chair is the Chief Justice, while the Judiciary Chief Registrar is the Secretary.7 The Guidelines, which came into force through the Kenya Gazette Notice No.2970, were launched by the immediate former Chief Justice Dr Willy Mutunga in June 2016 in his capacity as the then chairperson of the NCAJ in accordance with the provisions of Section 5 of the Judicial Service Act.8 The main aim of the Sentencing Guidelines is to act ‘as a one stop reference’ in guiding all sentencers and other practitioners in the criminal justice chain. The purpose of the Guidelines is to ensure that sentencing laws are interpreted and applied in a structured and consistent manner; to encourage restorative justice values, including victim participation in the court process; and to enhance community participation through non-custodial sentences, where applicable. The extent to which

2 Kenyan Sentencing Guidelines Section 3. 3 Constitution of Kenya Article 21 obliges ‘the State and every State organ to observe, respect, provide, promote and fulfl the rights and fundamental freedoms’ provided for under the Bill of Rights as a fundamental duty. 4 Kenyan Judicial Service Act 2011 Section 35. The Section tasks the Council with ensuring a ‘co-ordinated, effcient, effective and consultative approach in the administration of justice reforms in the justice system’. 5 National Council on the Administration of Justice available at www.judiciary.go.ke accessed 20 October 2017. 6 Kenyan Judicial Service Act 2011 Section 34 provides that ‘there is established an unincorporated body to be known as the National Council on the Administration of Justice’. 7 National Council on the Administration of Justice available at www.judiciary.go.ke accessed 20 October 2017. The other state actors are the Cabinet Secretary of the Ministry of State; Attorney General; Director of Public Prosecution; Head of National Police Service; Principal Secretary for the Cabinet and Public Service; Principal Secretary gender; Principal Secretary women and children affairs; Principal Secretary labor, environment, and land; Director of Witness Protection Agency; and Director of probation and after care services. The non-state actors comprise of private sector organisations, to wit the Legal Resource Executive Director, Chair of Council for Administration of Justice (CAJ), Commissioner for the Commission of the Implementation of the Constitution (CIC), Commissioner Kenya National Human Rights Commission (KNCHR), Executive Editor for National Council for Law Reporting, Cabinet Secretary for Defense, and Director, Independent Electoral and Boundaries Commission Legal Affairs (IEBC). 8 Kenyan Judicial Service Act Section 5(1) states that ‘the Chief Justice shall be Head of the judiciary and the President of the Supreme Court and shall be the link between the judiciary and the other arms of the Government’.

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the Guidelines can provide practical solutions to the central problems posed by the punishment of female offenders with dependent children will be a major focus of this chapter.

5.4 Key principles underpinning sentencing Part One of the framework described above outlines the six major principles that should underpin all sentencing. The frst is the principle of proportionality.9 Whereas proportionality in some jurisdictions may mean setting the maximum sentence only, Section 3 of the Kenyan Sentencing Guidelines requires proportionality to determine both the upper and lower limits of the sentence in relation to serious cases such as murder, deflement, and robbery with violence. It states that ‘the sentence meted out must be proportionate to the offending behaviour’ and that ‘the punishment must not be more or less than is merited in view of the gravity of the offence’.10 Under Section 23.8, the gravity is assessed against aggravating and mitigating circumstances that relate to the harm caused or risked and the culpability of the offender. The Guidelines state that ‘the proportionality of the sentence to the offending behaviour is weighed in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender’.11 The aforementioned provision for personal responsibility may, however, confict with the next principle outlined in the Guidelines that calls for the imposition of ‘the same sentence for the same offences committed by offenders in similar circumstances’ in pursuit of uniformity, equality, parity, and consistency before the law.12 The third principle provides for transparency and accountability and states that ‘the reasons and considerations leading to the sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these Guidelines’ pursuant to Article 50 and Article 73(2)(d) of the Kenyan Constitution 2010.13 This is followed by the principle of inclusiveness which provides that ‘both the offender and the victim should participate in and inform the sentencing process’14 as provided for under Article 10(2) which again, may confict with proportionality. 15 The ffth principle provides for fundamental freedoms and respect for human rights. The Guidelines specifcally urge the courts to uphold the dignity of both the victim and the offender during the sentencing process in order to foster wider enjoyment of human rights. It pays attention to the impact of sentencing on

9 10 11 12 13 14 15

Kenyan Sentencing Guidelines (2016), Part One Section 3(1). Kenyan Sentencing Guidelines (2016), Part One Section 3(1). Kenyan Sentencing Guidelines (2016), Part One Section 3(1). Kenyan Sentencing Guidelines (2016), Part One Section 3(2). Kenyan Sentencing Guidelines (2016), Part One Section 3(3). Kenyan Sentencing Guidelines (2016), Part One Section 3(4). Article 10(2)(b) identifes inclusiveness as one of the national values and principles of the government.

Exploring the Kenyan Sentencing Guidelines 85 the reduction of crime and warns of the high recidivism rate associated with custodial sentences.16 It calls upon courts to favour sentences that promote the rehabilitation of the offender.17 To this end, the court should be guided by the provisions of Article 159(c) of the Kenyan Constitution, which provides for alternative forms of dispute resolution so long as they are not repugnant to justice and morality.18 The court may also encourage other measures such as reconciliation, restorative justice, and restitution in pursuit of a non-custodial sentence.19 Lastly, the Guidelines require adherence to domestic standards of sentencing20 as well as international law21 granted the force of law by Section 2(6) of the Kenyan Constitution 2010.22 The Guidelines further state that Kenyan courts are expected to make reference to Guidelines established by the sentencing standards and principles from other jurisdictions. Whilst these standards and principles are not binding under Kenyan law, the courts are expected to give them due consideration when appropriate.23

5.5 The general objectives of sentencing Upon pleading guilty or being convicted after a trial, the hearing proceeds to the sentencing stage, whereby the court is granted powers by the state to impose the appropriate penal sanction upon the convicted person. In Kenya, the Sentencing Guidelines promote a number of objectives, to wit, retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation. Unlike in England and Wales, where the Sentencing Guidelines are formulated in both generic guidance and for each category of crime, in Kenya the Sentencing Guidelines are so far incorporated only into a single generic document encompassing all categories of offence. In Kenya, punishment is understood and articulated from the victim’s and the society’s standpoint in terms of the collective

16 Kenyan Sentencing Guidelines (2016), Part One Section 3(5). 17 Kenyan Sentencing Guidelines (2016), Part One Section 3(5). 18 Kenyan Constitution Article 159(C) provides that ‘alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted’ but the same ‘shall not be used in ways that contravene the Bill of Rights, is repugnant to justice and morality or is inconsistent with the Constitution or any other written law'. 19 Kenyan Constitution Article 159(C). 20 Kenyan Sentencing Guidelines (2016), Part One Section 3(6). 21 Kenyan Sentencing Guidelines (2016), Part One Section 3(6). 22 The Article provides that any treaty or convention ratifed by Kenya shall form part of the laws of Kenya. 23 These include the African Charter on the Rights and Welfare of the Child, Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, African Union Principles and Guidelines on Rights to a Fair Trial and Legal Assistance in Africa, United Nations Rule for Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders, United Nations Standard Minimum Rules for Non-Custodial Measure, Standard Minimum Rules for Treatment of Prisoners, and Guidelines for Action on Children in the Criminal Justice System, among others.

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level of the feelings generated by the crime. Indeed, in Kenya there are several instances where the community has resulted to ‘mob justice’ in cases where they feel that courts have failed to be adequately punitive.24 As pertains to the state’s duty to punish as per the wider theories of sentencing, John Locke25 opines that the legitimacy of a court’s power to sentence emanates from the social contract theory, whereby citizens voluntarily surrender their right to use force against offenders in return for the protection of their interests by the state.26 The theory is founded upon the assumption that the state is not only legitimate but stable and in full control of the country’s law enforcement, and hence competent in punishing the offender effectively.27 The social contract theory therefore holds that citizens transfer their ‘natural’ right ‘to use force against those who attack their interests and hand it over to the state, in return for the state’s promise to protect them by maintaining law and order’.28 David Garland opines that What appears on the surface to be merely a means of dealing with offenders so that the rest of us can lead our lives untroubled by them, is in fact a social institution which helps defne the nature of society, the kinds of relationships which compose it, and the kinds of lives it is possible and desirable to lead there.29 Social contract theory argues that by providing an independent, effcient, and effective court system deserving of the citizen’s respect and trust, the state is able to forestall the need for individuals to take the law into their own hands. Thus, the theory seeks to achieve the necessary cooperation between the state and its citizens in curtailing crime in pursuit of peaceful coexistence within the community.30 Nevertheless, the dependent children of convicted caregivers are equal

24 ‘Mob justice’ is a term commonly used in reference to the community taking the law into its hands to eliminate repeat offenders who are assumed to buy their way out of the criminal justice. In an interview on bail and bond terms with KTN TV station on 28 January 2019, Lady Justice Jesse Lessit gave an example of murder suspects she released against the probation offcer’s report, which had indicated that the community was determined to eliminate them if the court granted them bail or bond pending hearing. However, their defence counsels convinced the court of their client’s security, but upon release, the suspects were lynched. 25 John Locke, Two Treaties of Government (1698), available at http://oll.libertyfund.org/pag es/john-locke-two-treatises-1689. It advocates philosophical and Biblical justifcation for Constitutional Government for protection of citizens’ natural rights to life, liberty, and property, failure to which the people would exercise their right to revolt against the government. 26 MacCormick, David Garland; see also Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 74. 27 Andrew Ashworth (2002), 580–1; Duff (2001) 197; see also Ashworth (2010) 76, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 74. 28 Ashworth (2010) 76, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 74. 29 David Garland (1990) 287. 30 Gardner (1998); see also Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 75.

Exploring the Kenyan Sentencing Guidelines 87 holders of rights, and the state should prioritise their protection and wellbeing over the impetus to punish their mothers.

5.5.1 Retribution The frst objective of sentencing examined by the Kenyan Sentencing Guidelines is retribution, which aims for ‘just deserts’ in punishing the offender for the crimes committed.31 Although the Guidelines uphold a number of different sentencing objectives, it may be argued that retribution occupies a dominant, overarching position. The prioritising of retribution, as will be explored later, may be founded on its principal purpose of inficting pain or loss upon the offender to a degree that is proportionate to the harm risked or caused by the offence, and their level of culpability. This approach is not directly concerned with the protection of the public, enforcement of rights, reform of the offender, or deterrence of others from committing similar crimes. Consequently, any aggravating or mitigating factors taken into consideration by the court must relate to the seriousness of the offence, specifcally the aforementioned harm caused or risked and the offender’s culpability. Retributive sentences are based on the Old Testament concept ‘of an eye for an eye’ whereby the pronounced punishment is expected to be commensurate with the crime committed. Immanuel Kant argued that the state must punish the offender not for the sake of avenging the victim or merely punishing the offender but as a matter of justice and therefore for the sake of the law.32 He opines that Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the grounds that he has committed a crime; for a human being can never be manipulated merely as a means to the purpose of someone else and can never be included among objects of the law of things. His innate personality … protects him against such treatment, even though he may indeed be condemned to forfeit his civil personality.33 Retributive justice enables the courts to give effect to the principle of proportionality, specifed under Part One of the Guidelines outlined above. It promotes consistency of outcomes and aims to treat like cases alike. Retributive sentencing is often associated with highly punitive outcomes, but in principle, ordinal and

31 Kenyan Sentencing Guidelines, Section 4.1(1). 32 Immanuel Kant, Metaphysical Elements of Justice: Part 1 of The Metaphysics of Morals, second edition (1797) 332, Hackett Publishing Company also available at httpshttps://books.go ogle.co.uk/books?id=OhNR-xIkSVoC&printsec=frontcover&source=gbs_ge_summary_r &cad=0#v=onepage&q&f=false accessed 18 October 2018. 33 Immanuel Kant, Metaphysical Elements of Justice: Part 1 of The Metaphysics of Morals, second edition (1797) 332, Hackett Publishing Company also available at https://books.google.co .uk/books?id=OhNR-xIkSVoC&printsec=frontcover&source=gbs_ge_summary_r&cad=0 #v=onepage&q&f=false accessed 18 October 2018.

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cardinal proportionality can be set at any point along a scale of penalties. In relation to sentencing mothers, many of whom have previous convictions for lowlevel offences, it can effectively limit the escalation of punishment for repeated offending. In many respects, it sets the parameters of the punishment, within which other utilitarian ambitions may be pursued. And to that extent it can be regarded as a principal rationale of sentencing.

5.5.2 Deterrence Another objective furthered under the Kenyan Sentencing Guidelines is deterrence, which justifes punishment on utilitarian grounds.34 There are two forms of deterrence: individual deterrence, which justifes the punishment of an offender on the grounds that he or she is deterred from repeating the offence by this experience; and general deterrence, where the aim is to deter potential offenders from committing a similar offence by imagining the severe effects of the punishment.35 Nigel Walker contrasts the proportionality envisaged under retributive justice with the fexibility in utilitarian sentencing where the sentencer is free to decide on the severity and degree of punishment to achieve the desired social utility and is less concerned with issues of commensurability.36 Deterrence is founded on the assumption that the offender is a rational actor, making a rational choice to commit the offence after some consideration of the potential benefts and drawbacks. It therefore lacks utility for offenders who act impulsively, without thought for the consequences. It is also problematic for compulsive offenders who feel compelled to act on the spur of the moment regardless of foreseen consequences. In relation to general deterrence, minor misdemeanours may be deterred by community disapproval, but in serious crime, general deterrence works through instilling fear within the community through repute of the severity of the likely sentence.37 In support of this view, Ashworth points out that deterrence is preventive in nature, and that it ‘relies on threat and fear’ experienced by the individual offender as well as imagined by other would-be offenders.38 Nigel Walker further supports an element of deterrence in sentencing, for example by imposing a fne on a delinquent child’s parents. He observes that a sentencer might ‘reason that a moderate degree of obiter punishment will bring salutary pressure to bear on the offender’.39 However, it is observed that deterrence only works with ‘rational offenders’ who are able to learn and reason out the possibility of being caught and are also

34 35 36 37

Kenyan Sentencing Guidelines, Section 4.1(3). Norman Munroe, Crime and Punishment (2009). Nigel Walker, Why Punish? Oxford University Press (1991) 108. Norman Munro, Crime and Punishment (2009) available at http://EzineArticles.com/ expert/Norman_Munro/366508 accessed 1 October 2017. 38 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 78. 39 Nigel Walker, Why Punish? Oxford University Press (1991) 108.

Exploring the Kenyan Sentencing Guidelines 89 suffciently well-informed about the severity of the sentence imposed for such crimes.40 Ashworth points out that Deterrence must operate (if at all) through the potential offenders’ minds, so it is essential that they know about the severity of the probable sentence, take this into account when deciding whether to offend, believe that there is a non-negligible risk of being caught, believe that the penalty will be applied to them if caught and sentenced, and refrain from offending for these reasons.41 Deterrence for planned crimes can therefore be pursued through disproportionately severe punishment.42 However, Ashworth contrasts these premeditated offences with crimes committed impulsively43 or by ‘short-term hedonists or eternal optimists’44 as well as those under the infuence of substance abuse, none of which would be deterred by increased punishment.45 For general deterrence to succeed, the offence ought to have been of a severe nature and well publicised, such that the public is on the lookout for cruel46 and ‘exemplary’47 punishment to be meted out. In order to deter the individual offender from committing further crimes, the pronounced sentence should also be harsh. However, Ashworth opines that in reaching the appropriate sentence for deterrence purposes, courts must be guided by the probability of reoffending as opposed to the gravity of the crime committed. He observes that A system which regards individual deterrence as the main goal would presumably escalate sentences for persistent offenders, on the reasoning that if non-custodial sentences fail to deter, then custody must be tried, and if one year’s custody fails to deter, then two years must be tried, and so on. Support for the effcacy of deterrent sentencing is, however, limited. Hood and Hoyle’s research on the use of the death penalty across the world has concluded

40 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 85. 41 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 79; see also Bottoms (2004) 65. 42 Richard Harding (1990); see also Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 85. 43 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 85. 44 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, Fifth edition, (2010) 85. 45 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 85. 46 Sentencing www.richinstyle.com accessed 28 September 2017. 47 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 81.

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that there is very little deterrent value in capital punishment.48 They compared states before and after abolition and, conversely, before and after its (re)-introduction, but concluded that no deterrent effect could be claimed. Given that the death penalty is heavily weighted towards offences of homicide, many of which occur impulsively, this may be a weak test for the utility of deterrent sentences more generally. Although the two considerations are arguably intimately linked, far-reaching reviews have concluded that the severity of a sentence does not provide a strong deterrent to reoffending.49 What has more deterrent value is the likelihood of apprehension. Research conducted with prisoners by Ros Burnett and Shadd Maruna found that despite the desire of the majority of prisoners to avoid reoffending after release, the minority of them who succeeded in reforming did so out of hope for their future as opposed to the harsh conditions obtaining in prison.50 It might be thought that mothers would be particularly susceptible to deterrent strategies that risked obiter punishments on their children. However, as many mothers who offend in Kenya are doing so in conditions of extreme poverty, their offences are motivated in large measure by the need to provide for their children. In these circumstances, the fndings from the literature review by von Hirsch et al. are likely to prevail, namely that the certainty of punishment, but not the severity, will be a signifcant infuence. The objective of deterrence should therefore be given little emphasis in these cases and should cede priority to other rationales that are arguably more relevant and achievable.

5.5.3 Rehabilitation In Kenya, rehabilitation is provided for under Section 4.1(3) of the Sentencing Guidelines.51 Rehabilitation builds upon an understanding of why the offender committed the crime, with the aim of addressing the individual’s specifc needs in order to rehabilitate them and prevent reoffending. Relevant aggravating and mitigating factors under rehabilitation would therefore relate to the offender’s specifc needs and the nature and degree of interventions required to reform their behaviour. This is made explicit in relation to offenders with a history of substance misuse, where Section 7.20 of the Guidelines specifcally provides that the court should pass an order committing an offender who is a drug addict to a rehabilitation centre. It is, however, important to note that rehabilitation programmes can be fnancially costly and that their success is not assured as it is likely to rely on

48 Hood, R. and Hoyle, C. (2008) The Death Penalty: A Worldwide Perspective, fourth edition Oxford, Oxford University Press. 49 von Hirsch, A., Bottoms A.E., Burney, E. and Wikstrom, P.O. (1999) Criminal Deterrence and Sentencing Severity, Hart, Oxford. 50 Ros Burnett and Shadd Maruna (2004). 51 Kenyan Sentencing Guidelines, Section 4.1(2).

Exploring the Kenyan Sentencing Guidelines 91 the motivation and cooperation of the offender. An emphasis on rehabilitation can also result in inconsistencies in sentences pronounced against offenders convicted of the same offences due to its focus on the individual needs of each offender.52 This potentially conficts with the guiding principles of equality, parity, and consistency in sentencing discussed earlier. However, it has been argued that greater attention might be given to the equality of the impact of a sentence rather than a crude approximation based on identical sentencing.53 So long as the principle of proportionality sets the parameters of the punitive framework, rehabilitative measures can be employed without violating wider concerns for consistency and parity. Arguably, the existence of a social contract between the individual and the state not only justifes the state to sanction offenders but also justifes the individual to claim against the state when it fails to keep its side of the contractual agreement. Where the liberal state fails to protect the interests of its most vulnerable citizens, where extreme poverty prompts individuals to criminal resolutions, the state has a duty to facilitate rehabilitative solutions that aim to compensate for the defcits of equal opportunities that shape the social experience of these citizens. Rehabilitation in the prison context is notoriously diffcult to achieve, due in part to the punitive culture that prevails, but also due to the fact that most prisoners serve very short sentences that provide insuffcient time to facilitate meaningful reform. This is particularly true for women prisoners, for whom the pains of imprisonment and the disproportionate costs associated with its unintended harms can undermine their ability to engage effectively in rehabilitative initiatives. A strong commitment to the rehabilitation of women offenders in Kenya, therefore, rests heavily upon the avoidance of custodial sentences.

5.5.4 Restorative justice There are various ways in which restorative justice can be located within the criminal justice system, such as an integral part to or adjunct to sentence, as an alternative option of settling the dispute as opposed to formal prosecution, as a timely intervention at the pre-sentencing stage or even post-conviction. Indeed, Meredith Rossner opines that the inclusive nature of restorative justice whereby the focus is on the ‘harm, need, obligation and engaged’, as well as the adjudication and amicable disposal of the matter, enables a departure from the adversarial nature of the criminal justice system to a more harmonised outcome.54 Whereas these options may be readily in use in some developed jurisdictions, in the Kenyan

52 Kenyan Sentencing Guidelines, Section 4.1(2). 53 Andrew Ashworth and Elaine Player, Sentencing, Equal Treatment and the Impact of Sanctions in Ashworth A. & Martin Wasik, M. (eds) Fundamentals of Sentencing Theory, Oxford, Clarendon Press, 1998. 54 Meredith Rossner, Just Emotions: Rituals of Restorative Justice, Oxford University Press, 2013.

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context, this is an area crying out for further research. In Kenya, restorative justice has been used principally to deal with post-election violence (PEV) among different tribes, as well as the many victims of historical injustices that result in human rights violations.55 The recurrent violence signifcantly affects women and children in terms of loss of livelihood, due to displacement from their family homes and farms, and is a major concern not only in Kenya but internationally. However, restorative justice could be used more widely to provide new emphasis for the sentencing of women, thereby averting their incarceration. As pointed out earlier, the Constitution of Kenya 2010 strongly recommends alternative dispute resolution over incarceration.56 Article 159 (2) (c) provides that ‘alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted …’ However, subsection (3) (b) of the Article states that ‘traditional dispute resolution mechanism shall not be used in a way that … is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality….’57 Additionally, the Kenyan Sentencing Guidelines promote restorative justice by making offenders take responsibility for their behaviour58 and make good the loss suffered by the victim, their families, and the wider community.59 Godfrey M. Musila observes that the eruption of violence after the disputed 2007 elections ‘exposed the deep fssures in Kenyan society and troubled inter-ethnic relations rooted in the country’s history of colonialism, repressive rule, and the political and economic marginalisation of particular groups’.60 It is important to point out that Kenya is made up of 42 tribes, and although the main political leaders are elected from each of the counties, economic productivity among the counties may vary depending on various factors such as geographical location and levels of education. Musila applauds the National Dialogue and Reconciliation (NDR) process, which was mediated by Kof Annan, the former UN Secretary-General, and which managed to reach a settlement in 2009 between the Party of National Unity led by then President Mwai Kibaki and the Orange Democratic Movement led by Prime Minister Raila Ondinga.61 NDR recommended the formation of a Truth, Justice, and Reconciliation Committee (TJRC) to address the historical injustices ‘which were at the heart of the tragic violence that claimed hundreds of lives and devastated the economy’ and thereby ‘secure long-term peace, reconciliation and stability’.62 In March 2015, President

55 Capital News, 27 August 2015, by Joyce Wangui, ‘What happened to Uhuru’s sh10bn Restorative Justice Fund?’ Available at www.capitalfm.co.ke accessed 26 January 2017. 56 Constitution of Kenya (2010) Article 159. 57 Constitution of Kenya (2010) Article 159. 58 Kenyan Sentencing Guidelines Section 4.1(4). 59 Kenyan Sentencing Guidelines Section 4.1(4). 60 Godfrey M. Musila, ‘Options for Transnational Justice in Kenya: Autonomy and the Challenges of External Prescriptions’. The International Journal of Transnational Justice (2009) 1–20. 61 Godfrey M. Musila, ‘Options for Transnational Justice in Kenya: Autonomy and the Challenges of External Prescriptions’. The International Journal of Transnational Justice (2009) 1–20. 62 Godfrey M. Musila, ‘Options for Transnational Justice in Kenya: Autonomy and the Challenges of External Prescriptions’. The International Journal of Transnational Justice (2009) 1–20.

Exploring the Kenyan Sentencing Guidelines 93 Uhuru Kenyatta offered an apology to the ‘survivors of political turmoil, torture, detention, gender based sexual violence as well as Mau Mau veterans’, some of who had given their statements to the 2010 Truth, Justice and Reconciliation Commission (TJRC) which was formed in an attempt to reconcile the victims and their offenders.63 Underscoring the important need for restorative approaches for the victims of the injustices, the president observed that It is the opinion of the Director of Public Prosecutions that there are challenges to obtaining successful prosecutions. These challenges range from inadequate evidence, inability to identify perpetrators, witness fear of reprisals, and the general lack of technical and forensic capacity at the time.64 Ultimately, the objective of restorative justice is to facilitate reconciliation between the parties, and thereby restore or improve social order. Meredith Rossner opines that restorative justice entails the creation of a situation where victim and offender are enabled to take the role of the other in a transformational process.65 Rossner observes that ability to voice individual negative emotions during the conference greatly contributes to the short-term as well as the long-term success of restorative justice, especially upon gaining the court’s recognition and adoption as a legally binding outcome. The social solidarity arising from the discussion is also said to greatly contribute to the reintegration of the protagonists.66 Nigel Walker views restorative objectives as ‘penance or voluntary self-punishment’.67 Explaining the place of penance in restorative justice, Walker points out that ‘since there was an overlap between what the church regarded as sin and the civil law regarded as crime, it was natural that the law came to be seen as a way of enforcing atonement’.68 This form of sentence is aimed at repairing the damage caused between the offender and the community by the offence. But, arguably, it can also contribute to reforming the offender into a more law-abiding member of the community. Although there are instances where mediation may not achieve much success, such as in matters involving violent offences, in most scenarios it can generate positive outcomes. A case in point is found in Australia, where mediation is said to have attained far-reaching success69 with restorative justice conferences taking place between the victim and the offender ‘with their families and friends or those affected by the crime, to discuss and resolve the offense and its consequences’

63 Capital News, 27 August 2015, by Joyce Wangui, ‘What happened to Uhuru’s sh10bn Restorative Justice Fund?’ Available at www.capitalfm.co.ke accessed 26 January 2017. 64 Capital News, 27 August 2015, by Joyce Wangui, ‘What happened to Uhuru’s sh10bn Restorative Justice Fund?’ Available at www.capitalfm.co.ke accessed 26 January 2017. 65 Meredith Rossner, Just Emotions: Rituals of Restorative Justice, Oxford University Press 2013. 66 Meredith Rossner, Just Emotions: Rituals of Restorative Justice, Oxford University Press 2013. 67 Nigel Walker, Why Punish? Oxford University Press (1991)7. 68 Nigel Walker, Why Punish? Oxford University Press (1991)7. 69 Kathleen Daly (2015), ‘What is Restorative Justice? Fresh Answers to a Vexed Question’, Griffth Education available at http://www.antoniocasella.eu/restorative/Daly_2015.pdf accessed 20 April 2019.

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under the guidance and supervision of a facilitator.70 It only applies in cases where the offender admits committing the crime, and the victim is willing to take part in the restorative justice conference. Although it is desired that the victim and the perpetrator of the crime meet and talk face to face, where the facilitator is of the view that this may become acrimonious and therefore ‘not the best way forward, the facilitator will arrange for the victim and the offender to communicate via letters, recorded interviews or video’.71 It is also argued that face-to-face meetings lead victims to experience ‘higher levels of satisfaction with the handling of their cases’, and that they rate apologies received from their offenders as sincere, which makes them less inclined to want revenge or to suffer ‘from posttraumatic stress symptoms’.72 Supporting this view, Lucia Zedner critically examines the question of how reparative and retributive justice can be combined. She observes that Criminal justice should be less preoccupied with censoring code breakers and focus instead on the process of restoring individual damage and repairing ruptured social bonds. In place of meeting pain with the infiction of further pain, a truly reparative system would seek the holistic restoration of community. It would necessarily also challenge the claim of the state to respond to crime and would instead invite (or perhaps demand) the involvement of the community in the process of restoration.73 However, whereas restorative justice creates an atmosphere that enables the victim to inform the offender about the exact impact their crime has had on their lives and circumstances, it may be argued that if the community was in order in the frst place, restorative justice would not be necessary, as it endeavours belatedly to remedy the harm caused as opposed to preventing it from occurring in the frst place. This view may be supported by William Graham Sumner’s work on

70 Heather Strang, Lawrence W. Sherman, Eva Mayo Wilson, Daniel Wood, and Barak Ariel, ‘Restorative Justice Conferencing (RJC), Using Face to Face Meetings of Offenders and Victims: Effects on the Offenders’ Recidivism and Victim Satisfaction’, available at https:/ /www.campbellcollaboration.org/library/restorative-justice-conferencing-recidivism-victi m-satisfaction.html; see also Campbell Collaboration’s ‘Restorative Justice Conferencing (RJC) Using Face to Face Meetings’, available at campbe https://www.crim.cam.ac.uk/peo ple/academic_research/heather_strang/rj_strang_ accessed 30.09.2018. 71 Campbell Collaboration’s ‘Restorative Justice Conferencing (RJC) Using Face to Face Meetings’, available at https://www.crim.cam.ac.uk/people/academic_research/heather_ strang/rj_strang_review accessed 30.09.2018; see also the independent evaluation ‘Evidence Supporting the Use of Restorative Justice’, Criminal Justice | Restorative Justice, available at https://restorativejustice.org.uk/ accessed 30 September 2018. 72 Campbell Collaboration’s ‘Restorative Justice Conferencing (RJC) Using Face to Face Meetings’, available at https://www.crim.cam.ac.uk/people/academic_research/heather_ strang/rj_strang_review accessed 30.09.2018; see also the independent evolution, ‘Evidence Supporting the Use of Restorative Justice’, Criminal Justice | Restorative Justice, available at https://restorativejustice.org.uk/ accessed 30 September 2018. 73 Luzia Zedner, ‘Reparation and Retribution: Are They Reconcilable?’ (1994) 233, The Modern Law Review, Volume 57, No.2, Blackwell Publishing.

Exploring the Kenyan Sentencing Guidelines 95 the origins of social norms. Sumner correctly observed that where the mores are strong, the law is unnecessary, but where they are weak, the law is ineffective.74 Sumner categorises folkways as weak norms such as the proper eating habits or the manner of dressing expected by society but classifes mores much higher as they include serious violations of taboos such as cannibalism and incest. It is pointed out that these offences arouse reversion within the community, and are severely punished through the law put in place by the political authority.75 The social norms that guide a society are therefore ultimately determined by the particular community. According to the Restorative Justice Council, requiring the offender to take personal responsibility for their crime’s impact and, where possible, make amends, restorative justice is said to ‘provide 85% victim satisfaction rate, and a 14% reduction in the frequency of reoffending’.76 It is argued that restorative justice may greatly contribute to acceptance and recovery from the consequences of the crime, thereby paving the way forward for victims as well as offenders. Arguably, an important role that restorative justice could play for female offenders is as a mechanism of early diversion. This could be the presumptive response for all women who have not committed serious offences and who are facing prosecution for the frst time. The restorative process would address not only the needs of the victim but also those of the offender. But it also has the potential to work effectively as an integrated part of a sentence. Most obviously, restorative initiatives can be calibrated to ft within a retributive approach, as well as serve rehabilitative purposes. Its effectiveness, however, rests substantially upon offenders remaining in the community to provide compensation to their victims and is seriously compromised by a custodial sentence. This study recommends greater engagement of restorative justice in the disposal of criminal cases involving women with dependent children.

5.5.5 Community protection and incapacitation Another objective of sentencing under the Kenyan Sentencing Guidelines is community protection, whereby the offender is rendered incapable of committing an offence.77 This has been pursued in different ways in different jurisdictions, for example, the amputation of limbs or hands in countries such as Saudi Arabia and North Mali, the use of medical means to incapacitate sex offenders

74 William Graham Sumner, Folkways (1906); see also ‘Types of Norms’ available at https:// www.coursehero.com/fle/p29bl43/Types-of-Norms-William-Graham-summer-1840-191 0-distinguished-between-three/ accessed 10 April 2019. 75 William Graham Sumner, Folkways (1906); see also ‘Types of Norms’ available at https:// www.coursehero.com/fle/p29bl43/Types-of-Norms-William-Graham-summer-1840-191 0-distinguished-between-three/ accessed 10 April 2019. 76 Criminal Justice, Restorative Justice Council, available at https://restorativejustice.org.uk/ criminal-justice accessed 4 April 2019. 77 Kenyan Sentencing Guidelines, Section 4.1(5).

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in some Canadian states such as Ontario, as well as execution in jurisdictions such as the USA and Pakistan. As pointed out earlier, no execution has been carried out in Kenya since 1986, and death sentences have been commuted to life sentences. In England and Wales, community protection against dangerous offenders was previously pursued through the application of the Floud Committee recommendations on the ‘just distribution of risk’.78 This entailed balancing the due process safeguards by prolonging the duration of incapacitation beyond the proportionate term, thereby requiring the offender to sacrifce their own liberty as opposed to the society being required to carry the full risk of the offender committing the offence again. However, the Committee was critical of the application of life imprisonment as a protective measure and observed that the sentence ‘has not established itself as a satisfactory instrument of penal policy’, and the Committee instead proposed that protective sentences should be imposed on offenders found to have previously ‘done, attempted, risked, threatened or conspired to do grave harm’.79 To this end, the England and Wales Criminal Justice Act 2003 has since shifted the practice from the legal-clinical model proposed by Floud to a model whereby dangerousness is assessed according to actuarial risk assessment. The Act provides that an offence is termed as serious ‘if and only if it is a specifed violent offence or a specifed sexual offence … punishable by imprisonment for life or imprisonment for a determinate period of ten years or more’.80 The Act further provides that serious harm refers to ‘death or serious personal injury, whether physical or psychological’. The offender is automatically regarded as a danger to the public, requiring incapacitation, if they have committed such an offence before. If not, it is for the court to decide whether an indeterminate sentence is appropriate. But sentences to protect the public need not focus exclusively on those offenders who have committed serious crimes that represent a risk of serious harm to the public. Offenders can impose heavy burdens of nuisance on particular communities, and it is perhaps understandable that some sentencers wish to relieve that pressure by imposing a short custodial sentence. However, such protective sentencing need not always rest on custody but could rely on other forms of restriction such as electronic monitoring, reporting requirements to police or probation, or fxed-term attendance at a specifc location to undertake rehabilitative treatment or to perform unpaid work for the beneft of the community or victim. Again, the use of restrictions within the community could provide effective public protection for most women offenders who are prevalent offenders but who do not pose a risk of serious harm. Recognition of the principles of parsimony and proportionality in sentencing is particularly important when pursuing an incapacitative purpose and should arguably be explicit considerations when this rationale is applied to mothers with dependent children.

78 Floud and Young (1981). 79 Floud and Young (1981). 80 Section 244 Criminal Justice Act (2003) England and Wales.

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5.5.6 Denunciation Denunciation is another objective of sentencing through which the court aims to communicate the community’s condemnation of the offence perpetrated by the offender.81 Just like retribution and deterrence, the aim of denunciation is to communicate to the offender the level of disapproval that his or her act has generated within the community and to discourage and send a clear warning to any other person who may have a criminal disposition to commit a similar offence. Emile Durkheim observes that denunciation creates social cohesion by communicating shared beliefs and values, leading to a collective sense of identity and belonging that binds individuals to a particular society.82 Questioning this argument, Paul Rock examines the empirical claim of the tenets that defne the boundaries of social norms especially common among Neo-Durkheimian practitioners such as Kai Erickson. He demystifes norms as ‘rules and expectations by which members of society are conventionally guided’, and deviance as ‘absence of conformity to these norms’.83 He observes that for sociologists, deviance is characterised as the departure of certain types of behaviour from the norms of a particular society at a particular time and violation of certain types of group norms where behaviour is in a disapproved direction and of suffcient degree to exceed the tolerance limits of the community.84 The behaviour may comprise ‘any thought, feeling or action that members of a social group judge to be a violation of their values or rules or group conduct’ and that goes against their particular ‘defnitions of approved and unapproved conduct’.85 However, Paul Rock points out that social norms can be fexible, varying over time and from one community to another.86 In his written evidence to the Royal Commission on capital punishment, Lord Denning states that Punishment is the way in which society expresses its denunciation of wrong doing: and in order to maintain respect for the law it is essential that the punishment inficted for grave crimes should adequately refect the revulsion felt by the great majority of citizens for them.87

81 Section 4.1(6) Criminal Justice Act (2003) England and Wales. 82 Emile Durkheim, The Division of Labour in Society, available at books.google.com accessed 23 January 2018. 83 Paul Rock, ‘Rules, Boundaries and the Courts: Some Problems in the Neo-Durkheimian Sociology of Deviance’, British Journal of Sociology, Vol 49, No 4 (December 1998) 586–601. 84 Paul Rock, ‘Rules, Boundaries and the Courts: Some Problems in the Neo-Durkheimian Sociology of Deviance’, British Journal of Sociology, Vol 49, No 4 (December 1998) 586–601. 85 Paul Rock, ‘Rules, Boundaries and the Courts: Some Problems in the Neo-Durkheimian Sociology of Deviance’, British Journal of Sociology, Vol 49, No 4 (December 1998) 586–601. 86 Paul Rock, ‘Rules, Boundaries and the Courts: Some Problems in the Neo-Durkheimian Sociology of Deviance’, British Journal of Sociology, Vol 49, No 4 (December 1998) 586–601. 87 Lord Justice Denning, Master of Rolls on the Court of Appeal in England, (1950).

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This theoretical argument resonates with the earlier discussion about the existence and operation of a social contract between the individual and the state. An individual’s breach of contractual standards can self-evidently attract and deserve denunciation. But arguably, so too can breaches by the state that leave individuals profoundly vulnerable. What Durkheim describes as the strengthening and shaping of the ‘collective conscience’ through denunciatory processes can equally serve to shame the failures of the state as well as those of offenders.

5.6 How courts approach sentencing and use of penal sanctions in Kenya Arguably, in Kenya, retributive justice and proportionality are the dominant objectives in sentencing. However, routine practice in courts may undermine a strict adherence to equality. The previous section has highlighted ways in which different sentencing objectives can be combined in judicial practice, but it is also true to say that they may also confict with each other. A case in point is where objectives such as deterrence and denunciation contradict objectives such as rehabilitation and restorative justice. Depending on the objective pursued, very different sentencing outcomes can be produced. Section 3 of the Kenyan Sentencing Guideline states that ‘the sentence meted out must be proportionate to the offending behaviour’ and that ‘the punishment must not be more or less than is merited in view of the gravity of the offence’.88 Arguably, this treatment may work against personalised sentencing which would allow putting children’s rights and interests into consideration, even as the mother is punished for the crimes committed. The section further provides that the gravity of the offence is assessed by considering the harm caused or risked by the offence and the culpability of the offender. It requires the courts to weigh relevant aggravating and mitigating circumstances, pursuant to the provisions of Section 23(8) of the Guidelines. It states that relevant factors include ‘a great degree of provocation’ especially in response to gender-based violence, if the harm caused is negligible, where the offender is suffering from impaired mental capacity, or where the offender’s age ‘affects their level of responsibility for the offence’. Other mitigating factors outlined in Section 23 do not relate to the seriousness of the offence but to factors that are personal to the offender, which suggests that a less severe sentence may be deserved. Examples include where the offender shows remorse, is a frst-time offender, enters a plea of guilty, shows a willingness to cooperate with investigators, and shows a willingness to reconcile with and compensate the victim in order to remedy the harm inficted by their conduct.89 In the light of this evidence, the frst decision to be taken by the court is whether the seriousness

88 Kenyan Sentencing Guidelines (2016), Part One Section 3(1). 89 Kenyan Sentencing Guidelines (2016) Section 23(8).

Exploring the Kenyan Sentencing Guidelines 99 of the offence warrants a custodial or a non-custodial sentence, although the Guideline does not provide clear information on how the threshold to custody is established. As pointed out earlier, the majority of mothers serving custodial sentences are below the custodial threshold. It is important to note that in the frst instance, the charge sheet clearly spells out the charge in issue and guides the court to the particular law that the offender has contravened, which, in the absence of any mitigating factors, consequently leads to the imposition of the legally provided sentence for the particular offence. As pointed out earlier, it is at the close of the prosecution case that the court grants the offender and his or her witnesses the opportunity to address the court and table personal issues that may mitigate their sentence. However, in view of the fact that most offenders in Kenya cannot afford legal representation, there is need for research into reasons why an accused person may fail to take up the opportunity to mitigate, especially in cases where evidence has been adduced in their favour.90

5.6.1 Custodial sentences recognised under Kenyan law There are several sentences available to the courts in Kenya, and although they are meant to apply equally to both men and women, for purposes of this section the same will be generally analysed through the lens of children accompanying incarcerated mothers, as will be expounded on later in the chapter.

5.6.2 Imprisonment The Kenyan Sentencing Guidelines give no breakdown of what proportion of the sentences passed by the courts are custodial but states that the Kenyan sentencing practice appears to favour imprisonment over non-custodial sentences.91 As noted earlier, Section 3 of the Kenyan Sentencing Guidelines states that ‘the sentence meted out must be proportionate to the offending behaviour’ and that ‘punishment must not be more or less than is merited in view of the gravity of the offence’.92 Specifying the duration of the sentence, however, is not applicable in cases of life imprisonment, since unlike in England and Wales, Kenyan law does not strictly impose a tariff, or defne a minimum term that must be served before release can be considered.93 Although the maximum and sometimes minimum sentences for each category of offence are defned by statute, the determination

90 In Kenya, many accused persons are unrepresented, and in my experience as a sentencer, there are instances where an accused person fails to mitigate due to fear of addressing the court, intimidation, lack of understanding of the court system, or fear of revenge against them or their family members, especially where the other parties are police offcers. 91 Kenyan Sentencing Guidelines (2016) Section 7(1). 92 Kenyan Sentencing Guidelines (2016), Part One Section 3(1). 93 Kenyan Sentencing Guidelines (2016) Section 23.9(10).

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of the precise sentence is arguably at the discretion of the respective sentencer.94 This may lead to uncertainty and lack of transparency in decisions on similar cases committed under similar circumstances. Reliance on individual discretion has led to problems beyond inconsistency in sentencing. Section 1.4 of the Guidelines states that there are numerous claims of unprofessional conduct and corruption within the Kenyan criminal justice system, especially in decisions where the courts have failed to give compelling reasons for the imposition of a particular sentence.95 In the recent past, the judiciary has been accused ‘of being a deterrent instead of an enabler in the fght against graft [corruption]’,96 with the Attorney General Kihara Kariuki citing examples of court orders that have directly inhibited the arrests of corrupt suspects.97 He posits that ‘the issuance of bail by the courts is a concern to us. A chicken thief is handed a fne of Sh500,000 while a person who has stolen billions is only given Sh1 million as bail’.98 Further concerns over the state of the Kenyan judiciary are cited by the director of Criminal Investigations, George Kinoti, who states that ‘we know that a person has stolen from Kenyans but while going for him, we get court orders not to arrest. Can we be allowed to arrest this person and bring evidence to court?’99 The Sentencing Guidelines are aimed at ‘regulating the exercise of discretion during sentencing’ rather than providing a mechanism to establish a uniform sentence.100 However, they clearly call for considerably less reliance on custody than is presently the case.101 Exhortation alone, however, is unlikely to produce a signifcant shift of judicial practice, not least because individual sentencers are unlikely to believe that they are unnecessarily punitive. An important element in reducing the use of imprisonment is likely to be the greater clarifcation and specifcation of the threshold to custody. The Guidelines do provide some potential to do this in their attention to consistent approaches to decision making. However, establishing the threshold is particularly diffcult in sentencing systems that attempt to preserve judicial discretion. Nonetheless, two practical mechanisms that can be helpful in this respect are the longer term development of offence-specifc guidelines and, in the shorter term, the use of guideline judgements which could contain specifc considerations when sentencing women with dependent children.

94 Kenyan Sentencing Guideline (2016) 2.4(2). 95 Kenyan Sentencing Guideline (2016) 7.5. 96 Daily Nation, ‘Judiciary Again on Receiving War’, (Friday January 25 2009) 10. 97 Daily Nation, ‘Judiciary Again on Receiving War’, (Friday January 25 2009) 10. 98 Daily Nation, ‘Judiciary Again on Receiving War’, (Friday January 25 2009) 10. 99 Daily Nation, ‘Judiciary Again on Receiving War’, (Friday January 25 2009) 10. 100 Kenyan Sentencing Guidelines (2016) 1.7. 101 Kenyan Sentencing Guidelines (2016) 7.18.

End as “Stumbling Block” in Corruption End as “Stumbling Block” in Corruption End as “Stumbling Block” in Corruption End as “Stumbling Block” in Corruption

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5.6.3 Suspended sentences of imprisonment The suspended sentence order allows the court to suspend a sentence of not more than two years upon conviction. The suspension of the sentence is for a specifed period of time, during which the offender is to commit no further crime, pursuant to the provisions of Section 15 of the Criminal Procedure Code. If the offender commits no offence within the specifed period, then the sentence lapses, but if he or she does offend during this period, then the original sentence is activated and runs consecutively with the sentence for the current offence. The purpose of the suspension may be based upon the court’s fnding that incarcerating the offender jeopardises other compelling interests. Section 15.5 of the Kenyan Sentencing Guidelines states that ‘suspended imprisonment is desirable where it is evident that commencing the imprisonment immediately would result in undue prejudice or injustice to the offender hence making the punishment excessive’. The Guidelines urge the courts to avoid incarcerating offenders who qualify for suspended sentences. They note that courts sometimes demonstrate ‘undue prejudice or injustice to the offender hence making the punishment excessive’ by failing to place those who are likely to respond to the incentive to remain law abiding.102 Arguably, suspended sentences could be particularly suitable for mothers with dependent children whose offences place them above the threshold to custody. The harms that their imprisonment could cause their children are likely to represent strong incentives that are unparalleled in other cases. The Guidelines, however, also decry the lack of digital police records, which has resulted in offenders on suspended sentences not being recognised when appearing again before the courts and thereby escaping punishment for breaching the suspended sentence.103 Nevertheless, given the excessive and longlasting obiter and incidental punishment that a custodial sentence imposes on children and their mothers, a suspended sentence would provide a more effective sentencing mechanism that limits these unintended harms, and also the wider social costs.

5.6.4 Police supervision Although not a custodial sentence, police supervision can be an adjunct to a custodial term. In cases where offenders who had previously served custodial sentences of three years or more are reconvicted for a similar term, or violate the conditions imposed during police supervision, the court can order that the offender is placed under police supervision for a specifed length of time after release from custody. During this time, the offender is to reside in a specifed area and only leave with a written consent of the head of the police station near where he or she is residing. Although the supervisory period cannot exceed fve years, supervision

102 Kenyan Sentencing Guidelines (2016) Section 15.4. 103 Kenyan Sentencing Guidelines (2016) Section 15.2.

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is mandatory for offenders convicted of specifc serious crimes such as sexual offences,104 murder,105and robbery106 or attempted robbery,107 among others.108

5.7 Non-custodial measures recognised in Kenya In Kenya, non-custodial sentences have traditionally been viewed as insuffciently punitive due to the common retributive perception of incarceration as the proper punishment for those who offend. The Community Order in England and Wales is a generic order requiring ‘the offender to fulfl one or more of a range of requirements as specifed by the court, such requirements being proportionate in punitive weight to the seriousness of the offence(s)’.109 Under the 1991 Criminal Justice Act, a Community Order was only imposed where the offence in issue was considered too serious to be adequately dealt with through discharge or imposition of a fne.110 In the case of Olliver v Olliver (1989), two brothers who had wounded a police offcer were given non-custodial sentences instead of a proportionate sentence of immediate custody, due to consideration of the obiter punishment that would occur if their 23 employees were to lose their jobs.111 Allowing the appeal, Lord Lane stated that it is desirable ‘to keep people out of prison … if people can be dealt with properly by means of non-custodial sentences, and fnes are possibly the best of all the non-custodial sentences, then that should be done’.112 The England and Wales Sentencing Guidelines Council provides that ‘even where the threshold for a community sentence has been passed, a fnancial penalty or discharge may still be an appropriate penalty’.113 Under Kenyan law, most non-custodial sentences are ‘stand-alone’ orders, in that they cannot be used in combination with other orders such as a fne. However, combining non-custodial orders and/or linking them with fnancial penalties could provide much-needed fexibility that would enable a more holistic approach to the multifaceted problems that characterise women’s pathways to crime.

5.7.1 Probation order Where the crime is committed by a frst offender and the court is of the view that the offender poses no danger to the public, then the court may impose a

104 105 106 107 108 109 110 111 112 113

Kenyan Penal Code Section 52 (1) (2). Kenyan Penal Code Section 203, 204. Kenyan Penal Code Section 269. Section 344 of the Criminal Procedure Code provides for the other offences, to wit, preparing to commit a felony and handling stolen goods. Kenyan Penal Code Section 297. Ashworth 339. Ashworth 338. (1989) 11 Cr App R (s) 10. Ashworth 335. Ashworth 335.

Exploring the Kenyan Sentencing Guidelines 103 sentence of probation. Whilst the probation order is punitive to a certain level due to loss of liberty, it also aims at rehabilitating the offender. The order requires the convicted person to be willing to make restitution to the victim and to consent to being supervised by a probation offcer.114 The order, which runs for a period of between six months and three years, involves placing conditions on the offender. This may include being law abiding, reporting to the probation offcer as ordered, keeping away from particular associates, remaining drug free, and residing at a specifc address. The court may also order the accused person to submit to treatment, such as counselling, or to live in a particular institution in order to undergo another form of rehabilitation such as drug treatment. If the offender commits any crime during the probation period or violates the order in other ways, this may result in revocation of the order and lead to the offender being fned or sentenced to a prison term. It may also jeopardise their chances of being placed on a non-custodial sentence in the future if they were to re-appear before the court for further offences, since the probation sentence is normally considered for frst offenders. However, this practice is out of step with other jurisdictions and unnecessarily restricts the use of this rehabilitative order. In England and Wales, reoffending does not rule out multiple placements on probation, particularly where the offender’s relapse is due to drug use or other signifcant circumstances that call for rehabilitative interventions.

5.7.2 Community service order (CSO) This order requires the convicted offender to undertake unpaid work within the community for a specifed number of hours, ranging from 40 to 240, which must be completed within one year. The aim of the order is to punish the offender through a loss of liberty and to compensate the community for the harm arising from the offence. It ideally involves performing work that is benefcial to the community, such as planting trees, cleaning, and picking trash from public places, under the supervision of the community service offcer. An offender who deliberately fails to complete the allocated punishment can be returned to court for an alternative sentence. In England and Wales, this sentence has been underused for women, often seen as unsuitable because of the nature of the typically manual work involved. Women may also face diffculties in fnding childcare during the working hours, and in some instances, women have experienced sexual harassment when placed on an otherwise all-male work party.115 The lesson from this jurisdiction is that for this high-tariff non-custodial penalty to work effectively for female offenders with dependent children, appropriate work and childcare arrangements need to

114 Section 5(1) Kenyan Probation of Offenders Act 2012. 115 Howard League for Penal Reform (1999), Do Women Paint Fences Too? Women’s Experience of Community Service, London: Howard League.

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be in place. It provides an example of the need for differential treatment in order to achieve the goal of gendered equality.

5.7.3 Order to pay a fne Under this sentence, the court orders the offender to pay a stipulated sum of money as a punishment.116 Where the payment of the fne is given as an alternative to a custodial term,117 then the court is granted the discretion to pronounce a custodial sentence if the offender fails to pay the fne.118 However, the incarceration terminates upon payment of the fne.119 The fne imposed is expected to be commensurate with the seriousness of the offence, expressed as a ‘day fne’ whereby the offender’s ability to pay is assessed against their disposable income to avert discrimination against those with fewer assets.120 Day fnes involve monthly or weekly payments of a set percentage of disposable income to the government. Where the original conviction does not meet a custodial threshold, the court is advised to consider a compensation order as opposed to a fne. In cases where it appears the offender may not be in a position to raise the amount in issue, the court may feel it has little option but to resort to another penalty, which in practice may be a term of imprisonment. However, this inevitably accelerates women offenders up the sentencing ladder because they are likely to have the fewest resources and to be unable to pay a fne. Arguably, the inability to pay the fne should not escalate the scale of punishment from a fnancial penalty to a custodial one, particularly bearing in mind the costs incurred by their dependent children. Clearly, other non-custodial penalties could be used to enable a more proportionate response and to support consistently the principle that custody is a severe penalty, reserved for those who have committed serious offences that cross the threshold to custody.

5.7.4 Compensation order The compensation order aims to compensate the victim or his or her family for economic losses resulting from violent crimes, such as medical bills arising from the injury, or to meet the cost of the stolen property or damage caused by the offender.121 The sentencer may attach the offender’s wages or assets such as a car, but in order to avoid obiter punishment, a family house should not be interfered with unless the home was substantially purchased with the proceeds of the crime. The earning power of the offender is to be taken into consideration before

116 117 118 119 120 121

Kenyan Penal Code (2014) Cap 63 Laws of Kenya Section 28. Kenyan Penal Code (2014) Section 28.1(a). Kenyan Penal Code (2014) Section 28(b). Kenyan Penal Code (2014) Section 28(b). Kenyan Penal Code (2014) Section 28(b). Kenyan Penal Code (2014) Section 3.

Exploring the Kenyan Sentencing Guidelines 105 making the compensatory order. Unlike other non-custodial penalties discussed above, this order can run alongside other sentences such as imprisonment or probation, as well as an order to seize an offender’s assets or pay back what was lost in a fraud. Compensation orders available in the criminal courts provide a pragmatic solution to the problem of loss suffered by the victims of crime, who are spared the burden of taking civil action against the offender. The offender may be incarcerated for failing to comply with the order.122 However, Scarman LJ observes that Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalty for crimes. Compensation orders were introduced into our laws as a convenient and a rapid means of avoiding the expenses of resort to civil litigation when the criminal clearly has the means which would enable the compensation to be paid.123 Compensation orders provide an important mechanism to give effect to the restorative justice principles embedded in the Guidelines. In order for this to be accessible to many women offenders, most of whom lack fnancial resources, it is important to conceive of this order in ways that extend beyond fnancial compensation to include other means of reparation that can be made to victims.

5.7.5 Other orders available to the Kenyan court The Forfeiture Order provides the Kenyan court with the powers to order forfeiture of personal property obtained from the commission of the crime.124 Unlike the compensation order, which focuses on economic gains for the victim, under forfeiture the seized property is kept by the state after the due process of the determination of the criminal case. Where the property itself cannot be traced or forfeited, the court may assess the estimated value of the property and proceed to make an order for forfeiture of sums amounting to the same. Under Section 178 of the Kenyan Criminal Procedure Code, the court mandates the offender to make a restitution order for returning specifc items of stolen property to the victim in an attempt to mitigate the loss they suffered. The order, which is commonly used in the Kenyan courts, may be imposed alongside other orders and serves a restorative purpose as well as punishing the offender retributively. However, the Guidelines observed that there are practical problems relating to the proper storage of recovered property and the effcient retrieval of items for the victim.125

122 123 124 125

Kenyan Sentencing Guidelines Section 10. R v Inwood (Roland Joseph) (1974) 60 CR APP R 70 at 73. Kenyan Penal Code (2014) Section 29. Kenyan Sentencing Guidelines Section 17.3.

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The least intrusive measures available to the courts are the Conditional and Absolute Discharge. These orders take into consideration the character of the offender, the nature of the offence, and the circumstances under which the offence was committed. Under a Conditional Discharge, the offender is absolved from punishment and discharged under the security to be of good behaviour and keep the peace for a specifed duration.126 The offender is therefore ordered to enter recognisance for a specifed amount, with or without security, not to commit any other offence for a specifed period not exceeding three years.127 Failure to live by this directive exposes the offender to the original penalty as well as the sentence arising from the current conviction. As pertains to the Absolute Discharge Order, the offender, despite being found guilty as charged, is not considered as deserving punishment and is therefore discharged without any penalty being imposed against them. The absolute discharge sentence is the most lenient form of court sentence. It implies that there is little if any moral guilt on the part of the offender. Additionally, there are other freestanding orders provided under Kenyan laws which can be applied in cases that involve less serious offences; these include Finding Security to Keep the Peace,128 Suspension of Certifcate of Competency in traffc offences,129 Revocation of Licences,130 and Binding Over Order.131 From this brief description of the available sentences, it is apparent that there are a range of possible sanctions available to the court outside of imprisonment. The potential these have for displacing custody for mothers with caring

126 Kenyan Sentencing Guidelines Section 14(1). 127 Section 34(1) and (20 of the Penal Code. It provides that if a court is satisfed that an offender had not satisfed the conditions set for his or her recognisances, the court may issue a warrant of arrest for the offender and remand him or her in custody, or impose a stiffer bail through surety conditions. 128 Section 13(4) requires petty offenders to be of good behaviour and to keep the peace. Where the recognisance order was in addition to a prison term, the duration spent in custody awaiting settlement of the conditions should form part of the imprisonment term ordered. 129 Section 39 of the Kenyan Penal Code provides that upon conviction for an offence related to driving a motor vehicle, the certifcate of driving competency may be cancelled, or the court may disqualify the offender from driving either temporarily or permanently. However, it is noted that despite the rehabilitative and retributive benefts arising from these orders, in terms of a reduction in road accidents, Kenyan courts rarely impose the orders, opting for fnes instead. 130 Alcoholic Drinks Control Act Section 42, Environmental Coordination and Management Act Section 34 and Section 34 of the Food, Drugs and Chemicals Substances Act statutes provide for discretionary powers to revoke licences for general and specifc deterrence. 131 The offender undertakes a commitment to be of good behaviour but to pay to the court a stipulated amount of money if they break any law within a given period of time. Whereas the Binding Over Order is founded on the offender’s undertaking to observe good conduct, the Conditional Discharge Order is initiated directly by the court to the offender warning them of the possibility of being rearrested upon breaching the conditions set for their discharge. Both orders are similar to a suspended fne as it holds the threat of future punishment upon breaking the order.

Exploring the Kenyan Sentencing Guidelines 107 responsibilities, and protecting the best interests of their children, will be explored in the next chapter.

5.8 The process of using Sentencing Guidelines in determining the appropriate sentence As mentioned earlier in this chapter, an important element in reducing the use of imprisonment is to defne more clearly the appropriate thresholds to custody. In Kenya, the maximum sentence for each offence is provided by the statute that criminalises the conduct, and in some instances a minimum sentence is set.132 In setting limits to the severity of the sentences imposed by the courts and to promote uniformity and accountability in sentencing, the Guidelines have identifed an approach to the determination of the sentence that could help to establish more clearly the custody threshold. This requires the court to start the assessment of the sentence from 50% of the maximum sentence provided133 and to increase the term where there are aggravating circumstances. Nevertheless, Kenyan courts cannot impose a sentence that is longer than the maximum sentence provided by the enabling statute.134 Where the offender gives tangible mitigating circumstances, as provided for by the Guidelines under Section 23.8, the court is to lower the sentence from the 50% starting point. Any time the offender has spent in custody on remand should count as time already served under the pronounced sentence.135 If the duration of the stay is equal or exceeds the term provided, then the accused person should be given an absolute discharge.136Again this guidance can be developed and more fnely tuned in guideline judgements by the superior courts and by offence-specifc guidelines in due course. Part Four of the Kenyan Sentencing Guidelines advises how mitigating and aggravating circumstances should be considered to determine the offence seriousness. It states that where the sentencer is satisfed that the nature and circumstances of the offence warrant a custodial sentence, then the court should confrm the maximum sentence provided by the statute.

132 In Kenya, Section 89(2) of the Penal Chapter 63 [2012] provides statutory authority for penal sanctions available to the courts. In most instances, statutes that create specifc offences in Kenya provide for the maximum penalty by stating ‘not exceeding’ a defned period, thereby leaving the determination of the type and the exact lower limit of the length of the sentence to the discretion of the individual sentencer. However, in serious offences such as murder, robbery with violence, treason, or sexual offences, minimum as well as maximum sentences are clearly stated, thereby preventing the court from imposing a lesser term or a non-custodial penalty; see also Kennedy Munga v Republic [2011] EkLR, where the court held a probation order for deflement as illegal and revised it to 15 years. 133 Kenyan Sentencing Guidelines (2016) Section 23.9(1). 134 Kenyan Sentencing Guidelines (2016) Section 23.9(3). 135 Kenyan Sentencing Guidelines Section 7.11. 136 Kenyan Sentencing Guidelines Section 7 (12). The Sentencing Guidelines also state that in cases where multiple offences arise from one transaction, the sentence should run concurrently, but if the offences involve more than one victim and arose from several engagements, then the sentences should run consecutively. Section 7(13).

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The Guidelines do not identify any specifc non-custodial sentence as the preferred rehabilitative measure, but they do specify that where the offender is a drug addict and is convicted under the Narcotic and Psychotropic Substances (Control) Act 2012, the court is required to order ‘the offender to serve a term in rehabilitation’.137 The Guidelines provide that keen attention should be given to an offender’s responsibility to third parties, as will be expounded in later sections.138 Although the Kenyan Sentencing Guidelines do not defne misdemeanour offences, they observe that most of the short custodial sentences hardly meet the utilitarian objectives of rehabilitating, deterring, or incapacitating offenders, which typically require longer periods in custody. The sentencer is also reminded of the disruptive nature of short custodial sentences, and the risk that they can increase the likelihood of recidivism.139 The clear message contained in the Guidelines is that courts should aim to steer offenders away from crime through non-custodial sentences, unless the option is not permitted by law.

5.8.1 Aggravating and mitigating factors At the onset of the case, the court frst considers aggravating and mitigating factors that relate to the offence. Other factors relating to the offender, their character, or their responsibilities within the community are not to be considered by the court at this juncture. Determination of a proportionate sentence requires an assessment of offence seriousness, which is determined by assessing the severity of the harm risked or caused and the culpability of the offender. The offender’s blame-worthiness is judged in relation to the role the individual played in committing the offence. Any evidence of planning aggravates and increases the seriousness of the offence, whereas a minor role may lower culpability and consequently reduce the severity of the sentence.140 At the preface to Julian V. Roberts’ work Mitigation and Aggravation at Sentencing, Andreas Von Hirsch doubts the wisdom of leaving the determination of mitigation and aggravation to judges’ discretion and urges stringent specifcation of the application of mitigating and aggravating factors in Sentencing Guidelines.141 He challenges the argument that aggravating and mitigating factors are too complex and of ‘infnite’ variety to be catered for in Sentencing Guidelines. He posits that The argument puzzles me. Were it valid, then how could even individual judges deal with such matters? After all, none of us (whether judges or

137 138 139 140 141

Kenyan Sentencing Guidelines Section 7(20). Kenyan Sentencing Guidelines, Section 7(19) vi. Kenyan Sentencing Guidelines, Section(18). Ashworth 157. Julian V. Roberts, Mitigation and Aggravation at Sentencing, Cambridge University Press (2011) xv.

Exploring the Kenyan Sentencing Guidelines 109 academic penologists) seem to possess the skills of mathematicians and cosmologists in dealing with trans-fnite quanta.142 Andreas Von Hirsch further refutes the view that desert-oriented Guidelines are ill-suited to the consideration of personal factors and individual rehabilitative needs. He argues that this concern could ‘be dealt with through explicit standards on the subject’.143 He, however, opines that giving effect to personal mitigation will necessarily affect the sentence imposed and points out that The rationale for this shift would have to be explained. But taking this approach would at least help to ensure greater consistency among the sentencing decisions of judges than were matters of aggravating and mitigation simply left to individual decision makers’ discretion.144 However, in his essay on pure description of radicalisation, Egon Bittner argues that no system of rules can ever cater for every empirical possibility. He points to the need for an approach that addresses the peculiar features of each challenge and posits that ‘to cope with this pernicious fow is the principal organisational task’ of the particular institution in order to ensure its own continuity and integrity.145 For purposes of the current study, therefore, the existence of different opinions should arguably not curtail the court’s pursuit of a personalised, fair, and amicable evaluation and resolution of the unique issues in a particular case, especially in matters where children’s wellbeing is at issue.

5.8.2 Personal mitigation Section 306(2) of the Kenyan Criminal Procedure Code (2015) provides that when considering the sentence to impose upon fnding an offender guilty at the close of the prosecution case, the court grants the convicted person and, where applicable, his or her witnesses, the chance to address the court. This provides the offender with an opportunity to give evidence in their defence and mitigation.146 However, if the accused person opts not to offer mitigation, then the prosecution may proceed to sum up its case before the court closes the hearing on both sides to prepare the judgement and the sentence. It is important to note that pursuant to Section 22(3) of the Kenyan Sentencing Guidelines, the prosecution’s duty at

142 Julian V. Roberts, Mitigation and Aggravation at Sentencing, Cambridge University Press (2011) xv. 143 Julian V. Roberts, Mitigation and Aggravation at Sentencing, Cambridge University Press (2011) xv. 144 Julian V. Roberts, Mitigation and Aggravation at Sentencing, Cambridge University Press (2011) xv. 145 Egon Bittner, ‘Radicalism and the Organisation of Radical Movements’, American Sociological Review Vol 28, No 6 (December 1993) 934. 146 Section 306(2) of the Kenyan Criminal Procedure Code (2015).

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the sentencing stage includes presenting evidence against the accused, including previous convictions and arguments for a severe sentence based on the seriousness of the offence and the danger the offender poses to the community.147 Julian Roberts observes that personal mitigating factors ‘can exert a powerful infuence over sentence outcomes; they may well determine whether custody is justifed or necessary, or may mean a signifcant difference in the duration of any custodial term imposed’.148 He argues for keen attention to personal mitigation which comprises factors ‘relating to the offender rather than the offending’; their current as well as future prospects, including family responsibilities; being remorseful; demonstrating a willingness to address the root cause of their offending; and cooperating with police investigations.149 Supporting this view, the Kenyan Sentencing Guidelines observes that the character of the offender, such as showing genuine remorse and being willing to undergo rehabilitation, should be considered as legitimately mitigating the severity of the sentence.150 However, in order to balance mitigation with other factors, it is pointed out that where the probation report indicates that the offender may pose a threat of serious harm to the community, then a custodial sentence will invariably be imposed.151 In cases where the offender has a recorded criminal history, then non-custodial measures should only be considered with extreme caution.152 At the defence stage, what the offender says or fails to say at this juncture is critically important in that it brings to the attention of the court personal circumstances that the offender considers important and relevant to the mitigation of their sentence. In practice, this disclosure may lead the court to reconsider their earlier assessment to pass a custodial sentence. In a study by Jessica Jacobson and Michael Hough involving 52 sentencers in England and Wales, personal mitigation was found to be a dominant factor in persuading the court to impose a noncustodial sentence, as opposed to immediate imprisonment.153 The researchers observed 132 sentencing proceedings to examine the role of personal mitigation in sentencing and concluded that The signifcance of mitigation in sentencing is not recognised by policy … justice is best served by an individualised approach to sentencing which allows personal mitigation to play a full part. What is needed is consistency

147 Kenyan Sentencing Guidelines Section 22.4. 148 Julian V. Roberts, Mitigation and Aggravation at Sentencing, Cambridge University Press (2011) 3. 149 Julian V. Roberts, Mitigation and Aggravation at Sentencing, Cambridge University Press (2011) vii.i 150 Kenyan Sentencing Guidelines Section 7 (19) iv. 151 Kenyan Sentencing Guidelines Section 7 (19) i. 152 Kenyan Sentencing Guidelines Section 7 (19) ii. 153 Jessica Jacobson and Michael Hough, ‘Mitigation: The Role of Personal Factors in Sentencing’, Prison Reform Trust (2007) available at http://www.prisonreformtrust.org.uk/ Portals/0/Documents/mitigation - the role of personal factors in sentencing.pdf accessed 30 September 2018.

Exploring the Kenyan Sentencing Guidelines 111 of sentencing process – which will not necessarily result in consistency of outcomes for any given category … there is need for guidance, for example from the Sentencing Guidelines Council, on the principles of personal mitigation that should – and should not – be incorporated into sentencers’ decision making.154 However, Mirko Bagaric and Theo Alexander urge caution in taking account of some mitigating factors that may confer an advantage on more affuent offenders. They argue that a billionaire’s previous philanthropic deeds should not be considered in mitigation, since previous positive contribution to society is not relevant to appropriate sentencing.155 Ashworth also observes that some English sentencers are discriminatory in regarding a steady job or a positive employment record as strong enough to warrant consideration as mitigating factors.156 He ponders ‘whether those fortunate enough to be in employment should be favoured by a source of mitigation that is not open to the unemployed’ and observes that If collateral consequences were accepted as a regular mitigating factor, this would operate in favour of members of the professional classes and against ‘common thieves’ who would either be unemployed or working in jobs where a criminal record is no barrier. It would surely be wrong to support a principle which institutionalized discrimination between employed and unemployed offenders.157 He further observes that that would amount to confning impoverished offenders in custody while allowing wealthy offenders to ‘buy themselves out of prison’. He argues that the court should concern itself with the matter before it as opposed to being ‘interested in inquiring either into any bad social deeds the offender has been involved in, except previous offences, or into any good social deeds’.158

5.8.3 Obiter, incidental, and vicarious punishments Regardless of the principal objective of a sentence, be it retribution, deterrence, rehabilitation, or incapacitation, the penalty itself may cause some degree of unintended harm to those dependent on the offender in one way or another. Walker

154 Jessica Jacobson and Michael Hough, ‘Mitigation: The Role of Personal Factors in Sentencing’, Prison Reform Trust (2007) available at http://www.prisonreformtrust.org.uk/ Portals/0/Documents/mitigation - the role of personal factors in sentencing.pdf accessed 30 September 2018. 155 Mirko Bagaric and Theo Alexander, ‘First-time Offender, Productive Offender, Offender With Dependents: Why the Profle of Offenders (Sometimes) Matter In Sentencing’, Albany Law Review, Vol. 78.2. Page 397, available at pdfathttp://www.albanylawreview .org/Articles/Vol78_2/78.2.397%20Bagaric.pdf accessed 19 October 2018. 156 Ashworth 184. 157 Ashworth 184 158 Ashworth 182.

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points out that ‘if the offender is a husband or a father, wife or mother, imprisonment usually entails distress for an innocent child or spouse’.159 He refers to it as ‘the by-products of trial and sentence’ and points out that a proportionate (or commensurate) sentence inevitably inficts some obiter punishment, which no amount of social work can cancel out. Those who object to utilitarianism because it seems to condone the punishment of the innocent might ask whether the harm done every day to prisoners’ dependents in the name of retributive sentencing does not amount to the same thing. Retributivists salve their consciences in two ways: they tell themselves – and sometimes the offender too – that he should have thought of his family before doing what he did. If they are more sophisticated they point out that the harm done to dependents is not intended by anyone, and so cannot, strictly speaking, be called ‘punishment’. Consolations, however, are not solutions.160 Walker is critical of sentences geared towards consistency to ‘what the law prescribes, what the Court of Appeal or the Magistrates Association recommends, or what the local bench has agreed upon’.161 He argues that pursuing consistency in practice as a justifcation for sentencing is acting ‘like a priest who performs ritual actions without asking himself why they are part of a ritual’ and points out that ‘even a ritual has a meaning. Punishment is something more than a series of hopefully consistent decisions … it is a social institution’ which must therefore ‘serve – or at least appear to serve – one or more desired functions’ just like any other social institution in the community. Walker further posits that ‘if it did not, it would have been allowed to wither away, like outlawry and craft-guilds, or come to be regarded as nothing more than a ritual, like the mounting of a ceremonial guard’.162 Walker also explores the unintended harm that is inficted upon the offenders themselves as a consequence of being punished for the crimes committed.163 Canton refers to this as ‘incidental impact’ and expounds that ‘these are aspects of the punishment that are not intrinsic, but side-effects’.164 For example, rendering a convicted person jobless or homeless may be the eventual adverse outcome of the punishment, although this was not the intended impact.165 Canton observes that these incidental harms, which are rarely taken into consideration

159 160 161 162 163 164

Nigel Walker, Why Punish? Oxford University Press (1991) 106. Nigel Walker, Why Punish? Oxford University Press (1991)107. Nigel Walker, Why Punish? Oxford University Press (1991) 6. Nigel Walker, Why Punish? Oxford University Press (1991) 6. Nigel Walker, Why Punish? Oxford University Press (1991) 108. Rob Canton, Why Punish? An Introduction to the Philosophy of Punishment, Palgrave Macmillan (2017) 74. 165 Rob Canton, Why Punish? An Introduction to the Philosophy of Punishment, Palgrave Macmillan (2017) 74; see also Prison Reform Trust 2014.

Exploring the Kenyan Sentencing Guidelines 113 by the court, may result in an unjust or disproportionately harsh sentence. He states that: Such eventualities may compel the offender to commit further crime by closing down legitimate opportunities to change – for example by making it harder for the ex-offender to gain employment or indeed to be recognised as ex-offender at all – but that, since a fundamental principle of retribution is that people may not be punished beyond desert, to neglect the true effects of a punishment is to risk unjustifable excess.166 Mirko Bagaric and Theo Alexander wonder whether a convicted mother of four dependent children should have a lesser sentence than a woman who commits a similar offence but has no dependents, or indeed a frst-time thief or a repeat offender who commits a similar crime. Although they point out that to allow such mitigation ‘potentially licences them to commit crime and decouples the sanction from the severity of the offence, thereby undermining the proportionality principle’, they do agree that previous convictions ought to be considered.167 Additionally, consideration should be given to the offender’s children since they are likely to be harmed by the imprisonment of the caregiver. The authors’ view is that this consideration is in recognition of the ‘different layers of the legal system’ and the fact that ‘sentencing law should not refexively overwhelm broader maxims of justice, including the principle that innocent people should not suffer’.168 In addition, there are strong arguments supporting the consideration of an offender’s positive contribution to society. Ashworth opines that any disregard of these issues would expose the court to social censure. He points out that an offender’s social contribution would weigh in as legitimate personal mitigation from the perspective of public opinion and the collective social conscience:169 ‘the offence(s) committed would be the major factor on the minus side, and any credible social acts would be the major factor on the plus side’.170 Ashworth concludes

166 Rob Canton, Why Punish? An Introduction to the Philosophy of Punishment, Palgrave Macmillan (2017) 74. 167 Mirko Bagaric and Theo Alexander, ‘First-time Offender, Productive Offender, Offender With Dependents: Why the Profle of Offenders (Sometimes) Matter In Sentencing’, Albany Law Review, Vol. 78.2. Page 397, available at pdfathttp://www.albanylawreview .org/Articles/Vol78_2/78.2.397%20Bagaric.pdf accessed 19 October 2018. 168 Mirko Bagaric and Theo Alexander, ‘First-time Offender, Productive Offender, Offender With Dependents: Why the Profle of Offenders (Sometimes) Matter In Sentencing’, Albany Law Review, Vol. 78.2. Page 397, available at pdfathttp://www.albanylawreview .org/Articles/Vol78_2/78.2.397%20Bagaric.pdf accessed 19 October 2018. 169 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University press (2010) 182. 170 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University press (2010) 182.

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that ‘if the public expects account to be taken of positive social contribution, it will have less respect for a system that refuses to do so’.171 The Court of Appeal in England and Wales appears to uphold positive social contributions as warranting consideration under personal mitigation in some cases. In the case of Reid (1982), an offender accused of burglary attempted to rescue three children from a house on fre while awaiting trial.172 The Court of Appeal concluded that ‘the appellant was a much better and a more valuable member of society than his criminal activities’ suggested and proceeded to reduce the length of his custodial sentence for burglary.173 A similar conclusion was reached in Wenman (2004), where the defendant was convicted of causing death through dangerous driving while intoxicated but had previously saved the life of someone from a car in a ditch full of water.174 The Court of Appeal observed that the offender was brave with a high degree of responsibility as well as natural instincts of caring, which implied that he possibly required less rehabilitation. The court therefore reduced his four-year sentence to three years. Arguably, this observation is particularly relevant to the current study as it goes a long way in legitimising the personal mitigation made by mothers on the basis of their positive contribution to caregiving responsibilities to dependent children. Nigel Walker distinguishes incidental punishment and harm arising unintentionally from the punishment from harm stemming from the sentence, which he refers to as vicarious punishment, whereby the infiction of the hardship is deliberate.175 He states that ‘punishment is vicarious when its infiction on offenders’ relatives or associates is deliberate’. He gives the example of the provisions of Exodus 43.7 in the Old Testament of the Bible where God is depicted as compassionate and gracious, slow to anger, abounding in love and faithfulness, maintaining love to thousands, and forgiving wickedness, rebellion and sin. Yet he does not leave the guilty unpunished; he punishes the children and their children for the sins of their fathers to the third and fourth generation.176 As pertains to the aspect of ‘natural justice’ in sentencing, Walker observes that this arises where the crime committed may result in injuries either to the person committing the crime or to their companions, for example in a case of dangerous driving.177 The question is whether the injury or loss suffered should count towards a reduction of the severity of the sentence to be imposed. Although such

171 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University press (2010) 183. 172 (1982) 4 Cr App R (S) 280; see also Ashworth (2010) 182. 173 (1982) 4 Cr App R (S) 280; see also Ashworth (2010) 182. 174 R v Wenman [2004] EWCA Crim 2995. 175 Nigel Walker, Why Punish? Oxford University Press (1991) 106. 176 Exodus 34 6–7, Old Testament Bible. 177 Nigel Walker, Why Punish? Oxford University Press (1991) 106.

Exploring the Kenyan Sentencing Guidelines 115 harm may be said to be outside the scope of the sentence as it is self-inficted, the same may feature prominently at the sentencing stage in determining the most appropriate sentence. Walker supports keen consideration of the ‘natural justice’ to which an offender has been subjected. He observes that if sentencers ignored incidental punishment they are accepting the possibility, even the likelihood, that the totality of suffering, hardship or inconveniences imposed on the offender as a result of conviction and sentence will exceed what they intend. What is more since ill effects of incidental punishment vary from one individual to another, the totality will vary in a way that defeats the aim of proportionality (or even consistency).178 However, Ashworth cautions against giving too much weight to collateral harm. He argues that for an offender charged with dangerous driving who sustained injuries during the fatal accident, ‘only very serious injuries should be taken into account’, and that ‘the greater the fault in the offender’s driving the less effect should be given to the injuries’.179 Walker cautions that adjusting a sentence due to compelling mitigating evidence may result in unfairness among people convicted of the same offence.180 Ashworth also points out that where the conviction is not connected with the offender’s career, then the fnancial implications arising from job loss and the pension thereto may be considered. However, he points out that if the conviction ‘may be regarded as an abuse of a position of trust, it is well established as a matter of principle that no allowance should be made for these collateral matters’.181 The same principle applies in cases where the conviction results in other losses to the offender such as losing one’s job, diffculties of securing another job due to stigma, or in situations where the conviction is likely to impair relationships.182 What is clear, however, from all of the above discussion is that there is an established sentencing practice that permits some consideration to be given to the unintended impact the sentence has on innocent third parties and on the offender herself. This is an important set of principles that provide support for the use of alternative sentences to imprisonment.

5.9 Special consideration for specifc groups of offenders As pointed out earlier, Part Three of the Kenyan Sentencing Guidelines deals with specifc groups of offenders whose cases require further consideration. They include women, as will be explored under Section 5.10 of the chapter;

178 179 180 181

Nigel Walker, Why Punish? Oxford University Press (1991) 109. Andrew Ashworth, 169. Nigel Walker, Why Punish? Oxford University Press (1991) 109. Sentencing Guideline Council, ‘Theft and Burglary Other Than in a Dwelling’ (2008) 11; See also Ashworth 184. 182 Nigel Walker, Why Punish? Oxford University Press (1991) 109.

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accused persons who enter a plea of guilty; disabled offenders; those who are unwell, whose cases require special consideration due to their physical or psychological vulnerability; and children in confict with the law. The avoidance of custody sought herein is founded on achieving equality of sentence impact, even though the same may appear at face value to be a source of bias or discrimination.

5.9.1 Offenders who enter a plea of guilty In England and Wales, the discount for a guilty plea is assessed in accordance with the Guidelines based on the stage of the proceedings at which the admission of guilt takes place. The earlier the plea, the greater the discount. In Kenya, however, this critical decision is left to the discretion of the sentencer. However, the Kenyan Guidelines provide that where the court is of the view that the sentence should be reduced based on a plea of guilty, then the court should give reasons for failure to do so. Arguably, the uncertainty arising from a lack of proper guidance poses the risk of disparity in sentencing in Kenya. Nevertheless, the Kenyan Sentencing Guidelines note that in cases where the plea of guilty indicates remorse, it may contribute to a reduction of the sentence. The plea pragmatically reduces the costs of a trial, thereby saving taxpayers’ money as well as saving the court’s time. It is further observed that such a plea ‘protects the victim from re-victimisation’ by having to give evidence in court. Although in Kenya the reduction of the sentence and the discount thereto is at the discretion of the sentencer, it is noted that a plea of guilty enables ‘the victim to obtain justice without unreasonable delay’.183 However, it is noted that an accused person may plead guilty based on misinformation, and the court is advised to ensure that the accused is made fully aware of the meaning and implications of entering a plea of guilty. This is relevant not just to misinformation but also in considering whether there has been a degree of coercion of the defendant. Arguably, this applies especially to defendants in potentially coercive situations, such as Kenyan women with children who often plead guilty from the outset, especially on Fridays, for fear of leaving their children unattended over the weekend.184 The Guidelines observe that a plea of guilty may not always impact the court’s decision due to ‘underlying views which discourage “rewarding” an offender merely because he pleads guilty’.185 In England and Wales, recent attention has been given to the risks posed by the guilty-plea discount, particularly for women with caring responsibilities for children and other defendants who may also be particularly vulnerable to pressure to plead. Peay and Player have argued that a reduction in sentence can amount

183 Kenyan Sentencing Guidelines Section 21.1. 184 This observation is made from my personal experience as a sentencer in the Kenyan courts. 185 Kenyan Sentencing Guidelines Section 21.2.

Exploring the Kenyan Sentencing Guidelines 117 to an inducement to plead guilty, particularly where the discount is higher the earlier in the process it is offered:186 A guilty plea produces greater benefts the earlier the plea is indicated. In order to maximise the above beneft and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible the guideline make a clear distinction between a reduction in the sentence available at frst stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings.187 They argue that it can place uneven burdens on defendants and violate the duties owed by public authorities under the Equality Act 2010. The pressure is felt most acutely at the cusp of custody, where a guilty plea could effectively make the difference between a custodial and non-custodial sentence. Peay and Player cite examples of women with responsibilities for young children offering false pleas of guilty only because they feared a more severe sentence if found guilty after a trial. The discount undoubtedly challenges equal treatment and undermines the right to a fair trial because it penalises defendants who put the prosecution to test by requiring them to prove their case beyond reasonable doubt.188 Arguments in favour of the discount rest on issues of cost effciency and on saving victims the stress of enduring a trial. But it is far from clear that all victims necessarily want to avoid a trial. Neither is it self-evident that large numbers of defendants will plead not guilty if the reduction in sentence was removed.189 Peay and Player argue that the concerns they raise are universally relevant to any system that favours defendants who offer guilty pleas. In the Kenyan context, where the awarding of a discount relies heavily on judicial discretion, the risks posed to vulnerable defendants, particularly mothers of young children, requires careful consideration and more detailed guidance.

5.9.2 Disabled, terminally ill, or elderly offenders The Guidelines observe that courts should give special consideration when sentencing disabled offenders pursuant to Article 54 of the Kenyan Constitution 2010.190 The Article protects the dignity of all persons, while Article 29(f)

186 Jill Peay and Elaine Player (2018) 933, ‘Pleading Guilty: Why Vulnerability Matters’, Modern Law Review 81. 187 Jill Peay and Elaine Player (2018) 933, ‘Pleading Guilty: Why Vulnerability Matters’, Modern Law Review 81. 188 Jill Peay and Elaine Player (2018) 933, ‘Pleading Guilty: Why Vulnerability Matters’, Modern Law Review 81. 189 Jill Peay and Elaine Player (2018) 933, ‘leading Guilty: Why Vulnerability Matters’, Modern Law Review 81. 190 Article 54(1) (c) of the Kenyan Constitution provides that persons with disability should be treated with respect and should have reasonable access to all places; see also Section 21 of the Kenyan Persons with Disability Act.

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expounds on the freedom from cruel, inhuman and degrading treatment.191 The courts should therefore consider the offender’s disability when imposing a sentence, as well as the conditions in the institution where they will be held if serving a custodial sentence so as to avoid subjecting them to additional hardship.192 The principle pursued here again is to facilitate greater equality of impact in the experience of punishment. However, it is observed that accessibility and accommodation for the disabled in Kenyan prison is wanting and there is a need to enhance the current prison infrastructure to give effect to the Guidelines.193 The Guidelines also examines the sentencing of elderly and mentally or terminally ill offenders. Article 57 of the Kenyan Constitution provides that older members of society should live in dignity.194 Although elderly offenders may not directly fall within the scope of the current study as they are beyond child-rearing age, it is important to point out that initially, the Guidelines are herein being analysed holistically in order to demystify their content to the Kenyan sentencers, as pointed out earlier. In addition, the elderly may still be caregivers to dependent orphans. Section 20(25) of the Guidelines observes that currently no special consideration is provided by the court to elderly and terminally ill offenders. The Guidelines consequently require the courts to ensure the sentence imposed on the offender does not result in excessive, inhuman, ‘undue and unjustifed hardship in custody’ as a consequence of their age or illness. Again, driven by concern about the equal impact of the sentence, the Guidelines observe the apparent lack of adequate medical care for offenders and the hardship to which prison life subjects them, as explored in Chapter Four. It calls for consideration as to ‘whether the offender’s condition is one that would cause undue burden on the offender and/or prison offcers taking care of him/her’. Although no clear scale for sentence reduction is given for the disabled, terminally ill, or elderly offenders, the Guidelines observe that the court is encouraged to avoid a custodial sentence or reduce the length of the sentence.195

5.9.3 Persons of unsound mind or unable to understand court proceedings In cases where the court makes a special fnding of guilty against an accused who is unable to understand court proceedings or is of an unsound mind, the law grants the court the discretion to decide where and how the offender is held as they await a Presidential Order, which may lead to their release, especially if they

191 192 193 194 195

Kenyan Sentencing Guidelines Section 20(21). Kenyan Sentencing Guidelines Section 20(21). Kenyan Sentencing Guidelines Section 20(21) Kenyan Sentencing Guidelines Section 20(25). Kenyan Sentencing Guidelines Section 20(25).

Exploring the Kenyan Sentencing Guidelines 119 pose no threat to the community.196 Where a probation and/or psychiatric report allows, Section 166(2) Criminal Procedure Code states that the offender should be detained in a mental hospital, while Section 166(3) provides that the president may order that the offender be detained in a prison, mental hospital, or any other safe custody. This order is reviewed after three years and then every two years thereafter. However, although Sections 166 and 167 of the Kenyan Criminal Procedure Code require the court to report the case for the Presidential Order, in practice there is prolonged detention of the mentally ill since the issuing of the order often takes a long, unstipulated time. Although Section 166 provides no review mechanism for detention under Presidential Order, the Guidelines state that the court can make a recommendation for a review of the order after specifed time pursuant to the provisions of Section 167(4) of the Criminal Procedure Code.197 Most jurisdictions provide mechanisms to divert mentally incapable and mentally disordered offenders into psychiatric treatment. This may be motivated by a benign, paternalistic concern to avoid the penal consequences of a criminal sanction, but it can also result in particularly punitive consequences that are unregulated by principles of proportionate punishment. The criminological literature of Western jurisdictions reveals that women offenders have been particularly singled out for this type of intervention.198 In Kenya, Sentencing Guidelines need to be developed to protect the human rights of vulnerable offenders in situations where the boundaries between mental health treatment and the punishment of crime can lead to an extended loss of liberty.

5.9.4 Children in confict with the law It has been argued earlier in this study that the vulnerability of children of female offenders, and particularly those whose mothers are sentenced to a period of imprisonment, lacks visibility in the criminal justice process. Yet this myopia does not extend to the vulnerability of children who are brought to the attention of the criminal process as offenders. The Guidelines state that courts should treat children in confict with the law as a special category that calls for particularly careful consideration owing to their vulnerability. The purpose of the differential treatment is to allow the state to ensure that children are not held as fully liable as adults and to therefore protect them from disproportionate punishment. In Kenya, there is a legal requirement to separate children held in custody from

196 Kenyan Sentencing Guidelines Section 20(31). The section provides that where submitted evidence supports a conviction but the accused person is unable to understand court proceedings despite being sane, which is mostly due to lack of education, it is provided that they are to be detained at presidential pleasure, upon confrmation by the High Court, if the order was made by a subordinate court. 197 Kenyan Sentencing Guidelines Section 20(35). 198 Hilary Allen (1987) Justice Unbalanced: Gender, Psychiatry and Judicial Decisions, Open University Press, Milton Keynes, Bucks.

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adult offenders, and there are specifc courts and sentences for children aged 18 years and below. Although the law stipulates the age of criminal responsibility in Kenya as 8 years, the court is directed to have due regard to the welfare of children below 16 years.199 The Guidelines note that the majority of children are best suited to non-custodial sentences, which the courts should prioritise at all times in order to achieve ‘reformation, social integration, rehabilitation and restorative justice’.200 Background reports from probation and children’s offcers should be taken into account before placing the child on probation or in detention, in pursuit of the ‘child’s best interests’, ensuring always that the ‘individual circumstances of the child should be considered’.201 It is observed that the death penalty or imprisonment cannot be imposed on a child normally defned as below 18 years, this being the age at which Kenyans acquire the National Identifcation Card (ID). However, the Guidelines provide that a child aged 10–15 years can be detained in a rehabilitation school, while those aged between 16 and 18 are detained in a borstal institution for the period stated by the court. However, there are concerns over the inaccurate age determination of some offenders, leading to borstal sentences being imposed on offenders over the age of 18, and courts are consequently urged to seek reliable age assessments in order maintain appropriate age segregation. The Guidelines observe that children are not guaranteed legal representation, nor are their parents and guardians involved at the sentencing stage.202 Unless it is against the child’s best interests, the courts are advised to insist that the parents or guardian assist the child in presenting their defence in court, which normally takes the form of emotional support or standing in as the child’s surety where necessary. The Guidelines express concern about the functioning of youth justice, observing that there are major delays in executing borstal orders, resulting in children spending lengthy periods in police cells. In addition, since there are only two institutions in Kenya for girls and three borstal institutions for boys, most children are destined to be held far from their homes. To this end, the court is advised by the Guidelines to place, whenever possible, young offenders in the nearest institution to their homes in order to avert unnecessary suffering based on their tender age. Additionally, the court is to satisfy itself of the availability of accommodation in the particular institution before issuing the placement order. The main message in relation to young offenders is that individual circumstances should be keenly considered by the court, since protecting children’s rights and promoting them is a principal legal duty owned under the UNCRC.203 Such an approach would be critically important in addressing the predicament of young female offenders under the age of 18 who are pregnant or have children under their care. But it also reveals a series of assumptions about the vulnerability of

199 200 201 202 203

Section 14 Kenyan Penal Code. Section 14 Kenyan Penal Code. Kenyan Sentencing Guidelines Section 20(1). Kenyan Sentencing Guidelines Section 20(6). Kenyan Sentencing Guidelines (2016) Section 20(13).

Exploring the Kenyan Sentencing Guidelines 121 children as a category of human beings. As such, it raises important questions as to why the rights and best interests of babies and children affected by the imprisonment of their mothers in Kenya are not shown similarly robust protection. The last category of offenders requiring special consideration comprise of Mothers with caregiving responsibilities to dependent children, as will be explored later under Section 5.10 of the current Chapter.

5.10 Exploring the court’s discretion From the discussion of the critical role that courts could play in averting custodial sentences for mothers with dependent children, it is clear that the term frequently used is that courts are urged to take into consideration ‘the caretaking responsibilities, background and family ties of female offenders’.204 The courts are therefore advised but not legally mandated to do so, hence the rising number of children behind bars. In most jurisdictions including Kenya, sentencers are given varying degrees of fexibility to exercise their discretion during sentencing. This enables them to depart from the stringent constraints of the statute provided by parliament205 and to engage their moral judgement in determining a sentence. Another consequence of the freedom to exercise discretion comes ‘in the shape of fexibility to respond to different combination of facts … that provides room for the personal views of the decision-makers to infuence the fnal decision’.206 However, as will be explored later, opponents to such discretion argue that this can undermine justice when it is based on personal bias, especially on issues touching on children and female offenders. The Kenyan Sentencing Guidelines advocate structured discretion, as opposed to fettering judicial freedom altogether.207 Indeed, Justice Mbogholi Msangha, the chairperson of the Judicial Taskforce that formulated the 2016 Kenyan Sentencing Guidelines, observes that the Guidelines ‘are in recognition of the fact that while judicial discretion remains sacrosanct and a necessary tool, it needs to be guided and applied in alignment with recognised principles; particularly fairness, non-arbitrariness in decision making, clarity and certainty of decisions’.208 Writing from the perspective of England and Wales, Ashworth also supports a policy of structured discretion: The essence of Guidelines is to provide different ranges of sentence for different levels of seriousness of each type of offence, and, within each range, to indicate a common starting point in locating the offence in issue, with the aim of structuring judicial discretion as opposed to taking it away. The

204 Kenyan Sentencing Guidelines (2016) Section 20 (13). 205 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2005) 51. 206 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2005) 30. 207 Kenyan Sentencing Guidelines (2016) 3. 208 Kenyan Sentencing Guidelines 3.

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Exploring the Kenyan Sentencing Guidelines mitigating or aggravating facts are also to be located within the appropriate range.209

5.10.1 Argument in support of structured discretion As pointed out earlier, there is qualifed argument that unlike statutory law, Sentencing Guidelines should be fexible enough to leave room for individual discretion, by not imposing a specifc outcome but guiding a consistent process by which decisions are made. Supporting individualised judgements, research conducted among judges in Queensland, Australia, by Geraldine Mackenzie found that Judicial discretion plays a pivotal role in the sentencing process. It is the judge’s role to take all relevant factors into account and give a right and just sentence for the offender, the victim and the community … there may be a range within which the case fts, but no two cases are the same.210 However, those in favour of retaining judicial discretion in sentencing also recognise that it should not be left completely unregulated. It is argued that unstructured discretion is free to work at the whim of sentencers or their personal biases, and that some way of shaping judicial decision making is essential. Ashworth observes that Discretion brings not only advantages, in the shape of fexibility to respond to different combinations of facts, but also disadvantages, in that it may allow the individual views of the decision-maker to infuence (deliberately or otherwise) the approach taken. Replacing discretion with rigid rules may eliminate its advantages as well as its disadvantages. A wiser course may therefore be to attempt to structure the discretion, in an attempt to ensure that it is exercised broadly in line with some coherent policies.211 In his work on problems of discretion, Keith Hawkins draws attention to the challenges and the wider implications of the penal system relying heavily on unchecked direction.212 He points out that the executive and judicial authorities seem to neglect the critical aspect of the offender’s treatment, and that ‘the effectiveness of custodial treatment seems diffcult to justify … as anything other

209 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2010) 28. 210 Geraldine Mackenzie, (2005) 45. 211 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2010) 23. 212 Keith Hawkins (1974) 399–403, ‘The Problems of Discretion’, British Journal of Criminology, (1 October 1974). Vol 14, issue 4.

Exploring the Kenyan Sentencing Guidelines 123 than a means of expressing community condemnation, of deterrence, or of incapacitation’.213 Hawkins opines that The more fexible the penal system the more essential it is to see that the intentions of the legislature are put into effect; discretion needs to be guided by, for example, precise statutory pronouncements about the aims of the decisions and the criteria to be employed… Discretion also needs to be controlled by adoption of procedural safeguards such as personal hearings, reasons for decisions and right of review. The wider the discretion possessed by individuals who deal with offenders the more necessarily procedural safeguards become. The offender’s perspective deserves much greater emphasis.214 Arguably, this calls for granting due consideration to a mother’s mitigation on the basis of having a dependent child. Indeed, Justice Cooke observes that ‘the exercise of discretion in sentencing must remain in human hands as a computer cannot be programmed to register the “feel” of a case, or the impact that a defendant makes upon the sentencer’.215 Ashworth opines that ‘sentencing involves applying rules and principles to facts, and perhaps considering novel fact combinations in terms of what the principles should be’.216 He correctly observes that: In sentencing there are so many, often conficting, points to be taken into account that there are strong arguments in favour of discretion. Different combinations of facts present themselves, and rules may prove too rigid and too crude to yield sensible decisions. Without discretion, unfairness results from treating alike cases which are unalike.217 Since parliament represents the public voice, it identifes issues that are crucial for maintaining public confdence in sentencing, and the judges’ ability to respond to a particular case should therefore take account of the democratic will of parliament.218 Supporting this, another former Lord Chief Justice of England and Wales, Sir Thomas Bingham, confrmed that The rule of law does not require that offcials or judicial decision-makers should be deprived of all their discretion, but it does require that no

213 Keith Hawkins (1974) 399–403, ‘The Problems of Discretion’, British Journal of Criminology, (1 October 1974). Vol 14, issue 4. 214 Keith Hawkins (1974) 399–403, ‘The Problems of Discretion’, British Journal of Criminology, (1 October 1974). Vol 14, issue 4. 215 Andrew Ashworth, Sentencing and Criminal Justice (2005) 48. 216 Andrew Ashworth, Sentencing and Criminal Justice (2005) 41. 217 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2010) 41. 218 www.parliament.co.uk accessed 15 July 2017.

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Nevertheless, the pursuit of a transparent exercise of discretion is subjected to intricate challenges when faced with the individuality of the particular sentencer. Providing Sentencing Guidelines may not necessarily amount to a uniform application of the same. Ashworth points out that The increasing guidance on sentencing will not necessarily succeed in determining decisions in individual cases … it would be naive to believe that they will reduce individual variations to negligible proportions. That is an urgent question for empirical research into decision making of sentencers of both levels of court.220 From the foregoing discussion, it might be concluded that there is qualifed agreement on the need to structure discretion without necessarily fettering it. The central argument in favour of this view is that judges need to exercise a degree of moral judgement in reaching appropriate decisions, since written guidelines are not capable of calculating all combinations of circumstances found in cases brought before the courts. For the purposes of the current study, such circumstances may involve protecting a dependent child’s rights and interests whilst punishing the caregiver. It is a perspective invariably shared by senior judges as explained by Sir Igor Judge P., former Lord Chief Justice for England and Wales: sentencing decisions require the judge to balance all the ingredients of the case, whether aggravating or mitigating, in order to produce the appropriate sentences. There is no grid plan. There is no point system. Although consistency of approach is undoubtedly to be encouraged, Guidelines, whether provided by this Court or the Sentencing Guidelines Council in accordance with its responsibilities, remain Guidelines.221 Under Kenyan law, the sentencer’s discretion is generously provided for in most cases, taking account of the maximum sentence stated by the particular statute that creates the offence. Among the issues that gave rise to the formulation of the Kenyan Sentencing Guidelines were the wide-ranging discrepancies in sentences imposed on offenders convicted for similar offences and committed under similar circumstances. In support of structured discretion in Kenya, Sarah Muringa

219 Tom Bingham, The Rule of Law, Penguin Books (2010) 54. 220 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2010). 221 Andrew Ashworth, Sentencing and Criminal Justice, ffth edition, Cambridge University Press (2010) 29.

Exploring the Kenyan Sentencing Guidelines 125 Kinyanjui and Migai Akech222 observed that the aims of the judicial system and public confdence are undermined by wide and inexplicable discrepancies in sentencing. They underscore the need for a sentencing model that fosters public confdence by providing an objective framework for sentencing, while at the same time allowing consideration of the unique circumstances invariably presented before the court.223 Notwithstanding this seemingly coherent approach to structure judicial discretion, the contextual realities of Kenyan society can still throw decision making off course due to the existence of a patriarchal mindset that underlies and informs a wide range of socio-political thinking and decision making in Kenya, especially on matters affecting the treatment of women and children. The criminal justice system is not immune to these infuences as the following case demonstrates. In Fatuma Hassan Salo v Republic, the accused person, who was a frst offender and mother of fve, was convicted on her own plea of guilty for the charge of knowingly possessing and using a passport issued to someone else. 224 She was sentenced to four months imprisonment with no option of a fne. She successfully appealed against the sentence and was granted the option of a fne. The Court of Appeal was emphatic that despite the constitutionally grounded discretion, the same ‘must however be exercised judicially’ and that ‘the trial court must be guided by evidence and sound legal principle’ taking into account ‘all relevant factors and exclude all extraneous or irrelevant factors’.225 The court is also called upon to give detailed sentencing notes, expounding on how it exercised its discretion and ‘what went on in the mind of the trial court in arriving at the sentence imposed’.226 Granting the appeal, the court observed that, given the mitigation that she was a mother of fve young children and a frst offender, a non-custodial sentence would have been more appropriate, especially so since the option of a fne for the particular offence was provided by law. This case arguably demonstrates that having the laws in place is not a guarantee that they will be followed. It reveals the need to ensure that all sentencers are aware of the policy objectives being pursued in order to exercise their discretion consistently.

5.10.2 Sentencing grids There is, however, a body of literature that takes a contrary view on the desirability of judicial discretion and favours tighter controls through the adoption of

222 Sarah Muringa Kinyanjui and Migai Akech (2016) 266. ‘Towards Structured Sentencing in Kenya: A Case for Reform’, African Journal of Criminology and Justice Studies: AJCJS, Vol.9. Issue 1. 223 Sarah Muringa Kinyanjui and Migai Akech (2016) 266. ‘Towards Structured Sentencing in Kenya: A Case for Reform’, African Journal of Criminology and Justice Studies: AJCJS, Vol.9. Issue 1. 224 [2006] eKLR CA 429 available at kenyalaw.org/caselaw/cases/view/133613. 225 Fatuma Hassan Salo v Republic, criminal appeal No.429 of (2006) 51 [2006] EkLR. 226 Fatuma Hassan Salo v Republic, criminal appeal No.429 of 2006 [2006] EkLR 51.

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sentencing grids that impose a rigid structure and strict uniformity of sentences. It is a practice found in courts in various states in the USA.227 The offence committed and the previous criminal record of the offender are the only factors to be considered by sentencers. In this regard, the offences are ranked vertically in accordance with their seriousness, and the criminal record is on the horizontal axis, such that the law determines the sentence to be imposed by merely reading down and across the grid.228 Nils Christie describes this system as ‘a trained incapacity to look at all the values in a situation, and instead to select only the legally relevant ones, that is those defned by the high priests within the system to be relevant ones’.229 He notes that Legislators make it illegal, to put into account the critical social justice elements that generally mark the lives of the prisoners such as being left out in the sharing of the country’s ‘good life’, deprivation, poverty and other factors contributing to the non-productivity of the ‘dangerous class’.230 In his foreword to the work on use and over-use of imprisonment by Jessica Jacobson, Catherine Heard, and Helen Fair, the Chief Executive of Fair Trials, Jago Russell, correctly notes that ‘statistics alone can sanitise reality – they do not speak to the violence, intimidation and isolation that are part of custody’.231 Supporting this view, Nils Christie observes that ‘the relentless logic of grid’ supresses ‘all the nuances of harm, culpability and the impact of the sentence’.232 Referring to the US practice of relying on actuarial assessments in making parole decisions for prisoners on indeterminate sentences, Christie posits that The system has several great advantages. It has enormous capacity. It can include as many factors as we want. It is reliable. Equal factors carry equal weight in all decisions. When correctly instructed, the computer will always give equal cases equal treatment, quite independently of the number of factors taken into consideration. The system might also be characterized as quite democratic, in the sense that it is the legislators not the administrator who decide the moment of discharge.233

227 228 229 230 231

US Federal Guidelines, United States Sentencing Commission (2013). US Federal Guidelines, United States Sentencing Commission (2013). Nils Christie, Limits to Pain, (1981) 21. Nils Christie, Limits to Pain, (1981) 158. Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and OverUse From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 232 Nils Christie, Limits to Pain, (1981) 21. 233 Nils Christie, Limits to Pain, (1981). The author states that this system was formulated for the Federal Parole board by Gottfredson, Wilkins, and Hoffman for deciding parole decisions for prisoners on indeterminate sentences.

Exploring the Kenyan Sentencing Guidelines 127 Whereas such legislative measures may appear to succeed in fettering the sentencers’ discretion, there is a qualifed argument that too much infexibility on the part of applying the Guidelines may be detrimental to justice. Mackenzie opines that by strictly following the Guidelines, sentencing may become a dehumanised, mechanical process overlooking the facts and circumstances obtaining in individual cases.234 She observes that ‘there should be some judicial discretion and the reason is because the judge has the fesh and blood of the person in front of him or her, and the full circumstances of that person there’.235 Adding his voice to the argument against the rigidity envisioned by sentencing grids, Joshua Dressler observes that ‘under the Guidelines, the judges have little discretion; they just have a mechanistic process for calculating a sentence’.236 Mackenzie holds the view that ‘sentencing is not a mathematical thing. The idea of using sentencing grids is too infexible’ and may ultimately subject offenders, as well as the victim, to injustice.237 It might therefore be concluded from the above discussion that a degree of judicial discretion in sentencing is benefcial to producing just and fair outcomes. However, it is also clear that such discretion should be subjected to checks and balances, so as to avert discrimination and personal bias. For purposes of the current study, it is imperative that outdated patriarchal attitudes and biases are excluded from sentencing practices, and that judges are appropriately trained in understanding how the rights and interests of the child should be given effect in sentencing decisions that affect them.

5.11 Implications of the Sentencing Guidelines for the sentencing of mothers and elements therein that may support the removal of their children from prison This chapter has examined how Kenya’s Sentencing Guidelines advise courts on ways to achieve equal impact in sentencing by giving due consideration to incidental and obiter punishment pursuant to the state’s duty to punish. In Chapter One, it was pointed out that the 2010 Kenyan Constitution provides that life starts at conception,238 and that the Kenyan law protects pregnant women from receiving the death penalty. Instead, the courts are directed to commute these sentences to life imprisonment, in order to protect the life of the child the convicted women are carrying.239 Yet, the law fails to clearly articulate and protect

234 MC Mackenzie, How Judges Sentence, The Federation Press (2005). 235 MC Mackenzie, How Judges Sentence, The Federation Press (2005) 45. 236 Joshua Dressler, ‘The Use of Discretion when Sentencing Criminals’, Akron Law Review (2005) 856. 237 Mc Mackenzie, How Judges Sentence, The Federation Press (2005) 52. 238 Article 26(2) of the Kenyan constitution provides that the life of a person begins at conception. 239 Section 211 of the Kenyan Penal Code provides that a pregnant woman cannot be sentenced to death but to life imprisonment.

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the rights of the child to be born in prison. In addition, the Prisons Act allows pregnant women as well as the children accompanying female offenders into prison.240 In this section, consideration will be given as to how the guiding principles explored herein may provide the mechanism for the state to meet its obligation to safeguard the rights of the child and to dramatically reduce the incidence of incarceration of children with their mothers. The Kenyan Sentencing Guidelines draw attention to the ‘overutilization of custodial sentences’ and call for shifting the custody threshold upwards by making greater use of non-custodial penalties.241 It is stated that for offenders sentenced to three years or less, or where the court is of the view that despite the provided sentence exceeding three years it is proper to impose a term of three years or less, such offenders are likely to be eligible for non-custodial sentences.242 Using these criteria, the over 85% of women languishing in Kenyan prisons could have been placed on non-custodial sentences, irrespective of any caregiving role they may be performing. Indeed, the Guidelines specifcally point out that the majority of lactating and expectant mothers in prison are serving sentences of three years and below, which implies that in principle, they fall under this category. Although the sentencers’ wide discretionary powers may have contributed to the over-utilisation of imprisonment, closer adherence to this provision would result in the imposition of more non-custodial sentences, and would indirectly reduce the admission of children into prison. Personal mitigation can pull offenders away from a custodial sentence that the seriousness of the offence would otherwise merit. The Guidelines specifcally encourage sentencers to take account of personal mitigation in pursuit of transparency and accountability, and ‘to clearly set out in accordance to the law and the sentencing principles laid out in these Guidelines’, the considerations and reasons that inform their decisions.243 This neutral provision may initially appear to work against giving due consideration to the dependent third parties. However, it may be harnessed to protect the children of convicted mothers insofar as it provides room for extraneous considerations that justify a decision outside the realms of a sentence that is based on the just deserts envisaged under Section 3 of the Guidelines.244 The need for fexibility in interpreting the Guidelines, therefore, cannot be gainsaid.

240 Section 30 of Kenyan Prisons Act. 241 Kenyan Sentencing Policy Guidelines (2016) Section 2.4(6). 242 Kenyan Sentencing Policy Guidelines (2016) Section 8.3; see also Section 3. 1 of the Kenyan Community Service Order Act, Revised Edition 2016 [2012], which provides that ‘where a person is convicted of an offence punishable with (a) imprisonment for a term not exceeding three years, with or without a fne or; (b) imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fne, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service.’ 243 Constitution of Kenya 2010, a.50: a.73 (2) (d); see also the Sentencing Guidelines 2016 12, Section3.3. 244 Section 3 of the Guidelines details the principles underpinning the sentencing processes to include proportionality, uniformity, and transparency, among other impartiality principles.

Exploring the Kenyan Sentencing Guidelines 129 The Guidelines underscore the obiter punishment that arises from imprisonment and state that whenever the court believes a custodial sentence will ‘unduly prejudice others, particularly vulnerable persons who depend on him/her’, the offender should be placed on a non-custodial order unless this will result in injustice due to the gravity of the offence.245 Mothers’ caregiving responsibilities to dependent children qualify them for categorisation as a specifc group of offenders that sentencers are required to recognise in the course of the hearing and at sentencing.246 Indeed, Section 20(38) of the Guidelines states that ‘there are huge concerns about children born and brought up in the prison environment’.247 Courts are therefore urged to ‘take into account the caretaking responsibilities, background and family ties of female offenders’248 during sentencing, and to ‘impose non-custodial sentences for this category of offender’ as far as the circumstances of their cases allow. Section 20(36) specifcally mentions the complexity of reaching an appropriate decision when sentencing women because of the impact it can have on the welfare of their children. At the heart of this complexity is the knowledge that ‘the best interests of the child become an important consideration in the decision making process’. Most notably, the Guidelines draw attention to the fact that for those who are single mothers, incarceration is likely to have an impact on their children outside prison who are frequently left destitute in the community, while the babies and young children who accompany them invariably experience hardship in the prison environment, as pointed out in Chapter Four. Further support for this line of thought is found under Section 20(1) of Part Three of the Guidelines, which discuss the treatment of children who appear before the court as offenders. It categorises them as a special group of offenders whose personal circumstances warrant further consideration. Section 7(15)(iii) of the Guidelines calls for non-custodial sentences for child offenders. It points out that the court should aim to place young offenders on non-custodial orders unless the seriousness of the crime, in addition to the above factors, compels the court to resort to custodial orders in the best interests of the child.249 In addition, section 20(13) states that in making a sentencing decision involving a child, ‘the overarching consideration is the child’s best interests and thus the individual circumstances of the child should be considered’. If observing the best interests of child offenders can keep them out of prison, then surely this principled protection should extend to the non-offending dependents of incarcerated mothers as well. Increasing recognition of the failure of imprisonment to rehabilitate offenders, especially where the sentence is short, has encouraged sentencers to look beyond prison for other more rehabilitative solutions. Indeed, Section 3.5 of the Kenyan

245 Kenyan Sentencing Guidelines (2016) page 21. 246 Kenyan Sentencing Guidelines Section 20.37 recognises lactating mothers as belonging in the special category of offenders whose responsibilities should be put into keener consideration at sentencing. 247 Kenyan Sentencing Guidelines Section 20(38). 248 Kenyan Sentencing Guidelines (2016) Article 40. 249 Constitution of Kenya (2010) a. 53(1) (f); Convention on the Rights of the Child, a.37 (b) ii; African Charter on the Rights and the Welfare of the Child, a.4.

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Sentencing Guidelines states that courts should opt for sentences that promote rehabilitation out of respect for fundamental freedoms and human rights. The Guidelines directly encourage the adoption of other measures that facilitate reconciliation and urge the courts to uphold the dignity of both the victim and the offender during the sentencing process in order to foster wider enjoyment of these rights.250 Adherence to international law, in addition to the domestic law pertaining to recognised standards of sentencing, is also emphasised. Section 2.4(10) of the Guidelines calls for enhanced coordination of the agencies involved in the sentencing process as well as those involved in the supervision of sentences. This envisaged co-operation may be used in facilitating the removal from prison of children of convicted mothers. To enable the courts to acquire the necessary information, the Probation Department is entrusted with providing presentence reports considering the appropriateness of community service orders as well as probation orders. The Department should communicate with other stakeholders, such as the Children’s Department, in acquiring necessary information pertaining to the child, as well as the offender’s caregiving responsibilities to other children left outside prison. These reports can give insightful information about the character and responsibilities of the offender, particularly where they have included a home visit, and can equip the court with valuable information relating to the predicament of the offender’s children, both in and out of prison. A clear advantage of probation and community service orders is that the Department takes on the responsibility of not only supervising the mother’s rehabilitation but also overseeing the welfare of her children as part of the holistic completion of the sentence. An awareness of children’s rights and the legal protection of their interests, as guaranteed under the UNCRC, could, however, start earlier than at the sentencing stage in the process, arguably beginning at the point of arrest. In effecting the arrest of a mother, police offcers could be required to make inquiries into her caregiving responsibilities and, where appropriate, seek opportunities for diversion at this stage to avert formal prosecution. Where this is not feasible, the offcer may, before making an arrest, inquire about alternative care for the children. In the early stages of a prosecution case where dependent children are involved, measures aimed at the avoidance of traumatising the children should be taken. This may include effecting the arrest in their absence and explaining to those who can understand what is going on. The arrest should be conducted in a dignifed manner and a mother’s placement in the police cells should be made as brief as possible, with remand cases involving mothers being independently reviewed and fast-tracked. Additionally, a legal presumption in favour of bail should be more actively pursued so that mothers are only remanded in custody if they pose a risk of serious harm to the public, or in rare cases, represent a risk of fight and of permanently evading justice. In such cases, the court should fast-track the hearing of mothers held on remanded in order to minimise separation from her children. But in all cases the initial police documents to the court should highlight the position of the offender’s dependent children.

250 Kenyan Sentencing Guidelines (2016) Article 159.

Exploring the Kenyan Sentencing Guidelines 131 From the foregoing discussion, the Kenyan Sentencing Guidelines make room for the differential treatment of convicted mothers in pursuit of the rights and interests of their dependent children by recognising that equal treatment is not necessarily the same as identical treatment. Arguably, the only way for sentencers to respond comprehensively to convicted women’s caring responsibilities is if information pertaining to the children’s predicament is clearly tabled in court. However, many women withhold critical information concerning their dependent children for fear that the state will take custody of the children while she serves her sentence, thereby complicating and delaying the family’s reunion upon her release from prison. An effective strategy would need to rethink how the state assumes caring responsibilities for the children of women offenders, reassuring mothers that unless their offence relates to child abuse, the state will support and facilitate reunion with their children once they have served their sentences. It is important to mention that the history of such state provision for children, especially the children of stigmatised mothers, has not been particularly encouraging. As pointed out in Chapter Three, forcefully taking children away from their imprisoned mothers for adoption is not only unduly harsh, but also punishes female offenders disproportionately, and cannot be justifed unless it is in pursuit of the rights and interests of the child envisioned under the UNCRC. Whereas the provisions explored herein are of central importance to the current study as they demonstrate a clear intention to protect children by avoiding the imprisonment of their caregivers, this study underscores the fact that despite having legal directives in place, their underpinning objectives are not routinely pursued in practice, and the best interests of the prisoners’ children remain unguarded in the sentencing process. The government and the entire judiciary should commit to a change of approach and attitude towards the caregiver’s imprisonment and the rights of their children. The measures outlined here would go a long way in supporting the removal of young children from prisons, as well as in reuniting mothers with the children they leave behind when they serve a prison term, and the need to address this gap urgently cannot be gainsaid.

5.12 Conclusion This chapter has explored the Kenyan Sentencing Guidelines alongside academic literature relating to their provisions. It has examined the principles underpinning sentencing, the objectives of sentencing, and the range of sentencing options that are available to the Kenyan courts. Consideration has been given to the ways in which the Guidelines can be used to stem the fow of dependent children into prison with their mothers, restricting the use of custodial penalties and, in particular, excluding cases that can be punished proportionately by resort to non-custodial measures. The wide variation in sentences imposed on offenders convicted of similar offences derives from the discretion legally enjoyed by sentencers. A case has been made for structuring judicial discretion in order to engage checks and balances in the exercise of powers pursuant to the provisions of the Sentencing Guidelines. Avoiding unintended and obiter punishment occasioned on the

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offender and third-party dependents has been explored. So too the meaning and achievement of proportionality in sentencing has been subject to critical review. It has been argued that the fairness of a proportionate sentence rests not on the imposition of identical penalties, but on a more nuanced evaluation of the equality of the impact the sentence delivers in the individual case. In this respect, the courts need to take account of personal mitigation in calibrating the impact of the punishment and achieving the fairness inherent in the principle of ‘just deserts’. Part 3 of the Kenyan Sentencing Guidelines echoes the Kenyan Constitution,251 which requires the court to act objectively and impartially252 in maintaining accountability to the public.253 The Constitution expounds on good governance and national values binding all state offcers to ensure equality of all before the law, human dignity, equity, inclusiveness, the rule of law, social justice, human rights, good governance, non-discrimination, transparency, and integrity.254 Section 4.2 of the Kenyan Sentencing Guidelines255 states that ‘as much as possible, sentences imposed should be geared towards meeting the … objectives in totality’.256 However, the phrase ‘as much as possible’ may be argued to imply foreseeability of situations where strict adherence to some provisions in the Guidelines may confict with others and even occasion unjust treatment. A case in point is the identical or equal impact of punishment before the law which may work against meeting some of the requirements such as giving due consideration to mothers with dependent children.257 In Kenyan courts, the resolution of the competing objectives is informed by the principles set out in the Sentencing Guidelines, but in practice the fnal decision arguably depends upon the legal and moral reasoning of the individual sentencer. In addition, although there is a mechanism to appeal the severity of a sentence, in the context of the current study, the right of appeal lies with the convicted mother and not the child accompanying her, as he or she has no audience in the court. Their rights and interests are left in abeyance, outside the remit of the criminal court. As Arundhati Roy observes, ‘there’s really no such thing as the “voiceless”. There are only the deliberately silenced or the preferably unheard’.258 However, having signed the UNCRC, member states are clearly bound by the provisions therein and should be held accountable for the impact of obiter and incidental punishment bedevilling innocent children due to decisions emanating from their courts.

251 Constitution of Kenya 2010 Article (1)(a) (iii and iv) requires state offcers to exercise their authority in a manner that ’brings dignity to the offce’ and ‘promotes public confdence in the integrity of the offce’. 252 Constitution of Kenya 2010 Article 73(2) (b). 253 Constitution of Kenya 2010 Article 10(2) (c) and Article 73(2) (d). 254 Constitution of Kenya 2010 Article 10(2) (c) and Article 73(2) (d). 255 Kenyan Sentencing Guidelines, Section 4.2. 256 Kenyan Sentencing Guidelines, Section 4.2. 257 Kenyan Sentencing Guidelines, Section 20(36). 258 Roy Arundhati, Quotable Quotes available at https://www.goodreads.com accessed 17 February 2018.

6

Recommendations: The rights of the child, women, and sentencing

‘ When sentencing … a child’s sole or primary caretaker, non-custodial measures should be preferred where possible and appropriate, with custodial sentencing being considered when the offence is serious or violent.’1

6.1 Chapter abstract Internationally, most of the rights possessed by children of imprisoned mothers routinely fall through the legal cracks in the criminal justice process as the child’s presence is often not mandatorily acknowledged in judicial reasoning and sentencing decisions. This chapter aims to identify ways in which courts may punish pregnant women and mothers with dependent children whilst protecting the rights of their children. It begins by examining specifc sentences and practices that could stem the fow of children into custody, followed by a section looking at the application of the law as pertains to caregiving responsibilities to a dependent child. It explores how the provisions of Presidential Power of Mercy may provide a measure of last resort in removing the children being held in secure facilities from therein, and the different transformative approaches to reduce women’s imprisonment, thereby indirectly alleviating the children’s predicament. The practical inhibitions that sentencers may face in effecting the proposals made herein are also explored, before drawing together the conclusion. It will be argued that internationally, the rights of the innocent but dependent children of incarcerated women should, in principle, be given priority over the state’s focus on punishing their convicted mothers, unless those mothers pose a risk of serious harm to the public.

6.2 Introduction The growing practice of incarcerating children along with their mothers continues to raise great human rights concerns over the wellbeing and future chances for these children. This chapter explores ways of reducing the number of children

1 The UN General Assembly, (1989) 4.l.

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entering prisons with their mothers and discusses how sentencing practices could be altered by introducing alternatives to custody found in other jurisdictions internationally. The arguments in this study have to be understood against a long process of evolution as, according to Philippe Aries, even in European and North American countries, children’s rights were unknown prior to the 16th century.2 He states that in the 10th century, artists were unable to depict a child except as a man on a smaller scale and that it was not until the 17th century that painters began to paint children as subjects in their own right, with their own clothes and distinctive mannerisms. Aries suggests that before this time, children were thought of as adults in miniature and states that: In medieval society, the idea of childhood did not exist; this is not to suggest that children were neglected, forsaken or despised. The idea of childhood is not to be confused with affection for children; it corresponds to an awareness of the particular nature of childhood, that particular nature that distinguishes the child from the adult, even the young adult. In medieval society, this awareness was lacking.3 Aries quotes Montaigne, who, complaining about the gradual eroticisation of very young children that had begun in the 16th century, wrote: ‘I cannot abide that passion for caressing new-born children which have neither the mental activities nor recognizable bodily shape by which to make themselves lovable’.4 He points out that Montaigne was critical of loving children for their ‘frolicking, games and infantile nonsense’.5 Aries further states that it was in the 17th century in Europe when children became new objects of pleasure, worth wondering about, and that ‘A new concept of childhood had appeared in which the child, on account of his sweetness, simplicity and drollery, became a source of amusement and relaxation for the adult’.6 He observes that by the 19th century, humanity had moved from the ignorance of childhood to centring the family around the child, and that childhood had come to form the critical foundation of society by ‘standing on those frontiers of biology and sociology from which mankind derives its hidden strength’.7 There is qualifed argument that Aries’ work is the earliest documented work on early childhood. According to David Archard, Aries’ study was the frst general historical study in this feld, which gives it an apparently authoritative stature, and it is presented as a fundamental truth in discussions of childhood in social,

2 Philippe Aries, Centuries of Childhood (1996) 31; see also Chris Jenks, Childhood, Routledge (1996) 63. 3 Philippe Aries, Centuries of Childhood (1996) 5. 4 Philippe Aries, Centuries of Childhood (1996) Introduction, 3. 5 Philippe Aries, Centuries of Childhood (1996) Introduction, 3. 6 Philippe Aries, Centuries of Childhood (1996) Introduction, 3. 7 Philippe Aries, Centuries of Childhood (1996).

Recommendations 135 moral, legal, and political theory.8 Nevertheless, Archard notes that Aries wrote mostly from a French cultural background, but Chris Jenks observes that ‘it is conventionally supposed that Aries’s study is generalizable … to the rest of the modern western world’.9 On the other hand, in Europe, Rousseau is credited for calling attention to the needs of children in 18th-century Europe. It is noted that ‘for the frst time, he made a large group of people believe that childhood was worth the attention of intelligent adults, encouraging an interest in the process of growing up rather than just the product’.10 In the case of Britain, Steadman observes that ‘in the late twentieth century, and in the years up to the First World War, childhood … became the subject of legislative attention and formed the basis of various accounts of social development’.11 However, the child’s voice remained silent, and it was not until 1990 that the United Nations Convention on the Rights of the Child (UNCRC) came into force.

6.3 Enhancing some non-custodial orders and practices to avert the fow of children into prison 6.3.1 Building confdence in non-custodial sentences A major stumbling block to reducing the use of custody, and one acknowledged by the Kenyan Sentencing Guidelines, is a lack of confdence amongst some sentencers in the punitive value of non-custodial sentences.12 In England and Wales, the belief that only imprisonment punishes offenders has been addressed by enhancing the punitive weight of community sentences. A similar programme of education is necessary and should be included in the curricula of law schools, as well as in the professional training and development of all judicial offcers provided by the Judicial Training Institutes, the School of Law, and the Law Society in respective jurisdictions. In England and Wales, sentencers must ‘follow the Sentencing Guidelines unless they can justify a departure by showing that it would be contrary to the interests of justice’.13 In countries such as Kenya, judges have greater discretion in how the Guidelines are used, in large part because, unlike in England and Wales, the Guidelines are generic and, as yet, lack specifcation for each category of offence. However, greater clarifcation could be provided on the determination of the threshold to custody, and stricter adherence

8 David Archard, Children: Rights and Childhood, second edition, Routledge (2004) 19. 9 Chris Jenks, Childhood, Routledge (1996) 62. 10 Pricilla Robertson, ‘Home as a Nest: Middleclass Childhood in Nineteenth Century Europe’ in L. DeMause (ed.), The History of Childhood, London: Souvenir (1976) 43; See also Chris Jenks, Childhood (1996) 81. 11 Carolyn Steadman, Childhood, Culture and Class in Britain: Margaret MacMillan 1860– 1931, London, Virago (1990) 63–64; see also Chris Jenks, Childhood (1996) 65. 12 Kenyan Sentencing Guidelines (2016) 3. 13 Section 125 Coroner and Justice Act 2009; see also Samuel Alex, The Suspended Sentence; The Principles available at www.criminallawandjustice.co.uk accessed 5 February 2015.

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to these principles could be introduced. For example, if the avoidance of short custodial sentences is to be supported, sentencers could be required to provide a reasoned argument whenever they depart from this guidance, detailing why a non-custodial sentence was not preferred. Aside from the attitudes of sentencers, there is also a need for a paradigm shift in the general public’s perception that non-custodial sentences are not suffciently punitive to deter crime or punish offenders. An offender’s safety may be endangered if the public views such sentences as ‘a bit of a charade, a pretence at imprisonment’,14 or if the victim feels ‘the offender got away with it’. It is possible that the offender too ‘may feel contemptuous of a perceived weak powerless court’ and rejoice being ‘let off’ easily.15 Non-custodial sentences have raised little jurisprudence because offenders are relieved to have escaped custody and do not appeal their sentences.16 In Kenya, there have been instances where members of the public have taken the law into their own hands and carried out what is commonly referred to as ‘mob justice’, badly beating or burning offenders who were on suspended sentences or who were serving community penalties.17 In liberal democratic societies, punitive populism is not a morally appropriate method of developing penal policy. Although the effectiveness of all public policies depends to some degree upon public legitimacy, this should be achieved by ensuring that criminal justice is determined by an elected government, with evidence-based advice from professional groups, and not by populist campaigns. The government should therefore lead in addressing public perception through educating the community on the meaning and benefts of non-custodial sentences, and encouraging communities to support offenders, especially in cases of women with dependent children.

6.3.2 Increasing the punitive weight of non-custodial measures It is important to note that in Kenya, as in England and Wales and other jurisdictions, most offenders appearing before the courts are unemployed. Unlike England and Wales, where community service, known as ‘unpaid work in the community’, is ranked as a high-tariff order,18 in developing countries such as Kenya, unpaid work by those with limitless leisure time is not regarded as an onerous commitment and therefore not a signifcant punishment. However, by

14 Samuel Alex, The Suspended Sentence; The Principles, available at www.criminallawandjustice .co.uk accessed 5 February 2015. 15 Samuel Alex, The Suspended Sentence; The Principles, available at www.criminallawandjustice .co.uk accessed 5 February 2015. 16 Samuel Alex, The Suspended Sentence; The Principles, available at www.criminallawandjustice .co.uk accessed 5 February 2015. 17 This has been established in the course of my current duties as a sentencer and as a state counsel as well as previously as a probation offcer. 18 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 338.

Recommendations 137 imposing a longer punishment period, the imposed work routine may prove to be rehabilitative by imposing more order and structure on otherwise chaotic lifestyles. Additionally, the currently stand-alone community service order and probation order could be given more punitive weight, as well as rehabilitative value, by being combined together or attached to other orders, such as a home curfew or other restrictions monitored through electronic tagging, in order to further limit the offender’s liberty. However, although the envisaged rehabilitative function of a non-custodial sentence may make them more attractive to sentencers, the same should be undertaken with due regard to the individual circumstances of the offender. At all times, the principle of proportionality should be observed, and sentencers should avoid overloading the community service order and placing the offender at a heightened risk of failure. The order offers considerable fexibility in relation to the kind of work imposed, and in cases where the offender has some expertise, this may be deployed to the beneft of the community, thereby enhancing the reparative value of the sentence. Traditionally, the work provided has been aimed at young men, who are the main recipients of the sentence. Some thought, therefore, needs to be given to ensure that there is appropriate work available to female offenders, which means that they should not work alone on all-male work parties and that childcare arrangements are in place to enable the women’s attendance.

6.3.3 Enhancing suspended sentences A good example of an existing penalty that could be enhanced globally is the suspended sentence.19 This is rarely used in the Kenyan courts, unlike recent practice in England and Wales, which has seen a signifcant shift towards this penalty, albeit at the expense of the community order rather than immediate imprisonment.20 The sentence is not an alternative to custody but a custodial sentence that is effectively suspended, so long as the offender maintains good behaviour. It is intended to give offenders the chance to avoid imprisonment and the consequences that arise from it. Sentencers could reduce the prison population by making more frequent use of the order, thereby averting unintended harm to third parties and, more specifcally, the obiter punishment experienced by the children of imprisoned mothers. However, care should be taken to ensure that these sentences are only used to replace immediate custody and are not used as an alternative community penalty. Were this to occur, women’s sentences would be ‘up tariffed’, thereby escalating their risk of custody in the event of breaching the orders.

19 In the case of Kenya, it is provided for by Section 15 of the Kenyan Criminal Procedure Code. 20 Section 15.5 of the Kenyan Sentencing Guidelines states that ‘suspended imprisonment is desirable where it is evident that commencing the imprisonment immediately would result in undue prejudice or injustice to the offender hence making the punishment excessive’.

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6.3.4 Previous convictions not treated as aggravating factors There is a strong tradition of treating recidivist offenders more severely than those with no prior convictions. The justifcation for this tends to rest on the claim that repeat offenders are more culpable than frst-timers who may be viewed as having succumbed to human error. Human fallibility, however, becomes less compelling as mitigation when offences are repeated. However, increasing sentences for those with previous offences can produce negative consequences that undermine the principle of proportionality, whereby less serious repeat offences attract enhanced sentences normally reserved for offences of greater seriousness. As an alternative to this approach, courts could adopt either a fat-rate approach or engage a progressive loss of mitigation for each new conviction. There is a strong argument in liberal democratic states that sentencers should exercise parsimony and restraint, so that the punishment imposed is the least necessary and based on the seriousness of the offence in issue. Desert theorists such as George Fletcher, who advocate for fat-rate sentencing, opine that only the current crime should be considered, as the offender has been duly punished for previous offences, and that to take these into account again amounts to double punishment.21 This strictly retributive approach may be criticised on the grounds that previous convictions are not entirely irrelevant considerations, as a clean record may indicate that the current offence represents only a temporary lapse of judgement. Ashworth proposes a mid-way position between cumulative and fat-rate sentencing, whereby mitigation for an absence of previous convictions could be lost gradually for each new conviction. To protect the principle of proportionality, sentences for minor offences should not be ratcheted up to reach the level of severity imposed for serious offences. Arguably, this would beneft many women offenders whose offences tend to be of low seriousness but who may have accumulated a number of previous convictions. It provides a principled strategy to ensure that imprisonment is reserved exclusively for those who have committed serious offences, whilst recognising a moral distinction between recidivist and frst-time offenders.

6.3.5 Decarceration of some offences The decarceration of certain offences would also reduce the numbers of women, and consequently mothers, sent to prison. Parliament should set up very clear limits to the extent incarceration can be imposed on offenders. New legislation could identify specifc offences, such as simple assault and theft offences of specifed lower values, as falling below the custody threshold. This would effectively remove imprisonment as an option and compel courts to use non-custodial sentences. Where stringent community penalties that engage offenders in both retributive and rehabilitative activities are used, the offender can still be judged to have received her ‘just deserts’ and not evaded punishment.

21 George Fletcher, Rethinking Criminal Law, Oxford University Press (1978), 460–466.

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6.4 Penalties and practices available in other jurisdictions that may be implemented in developing countries Exploring the sentencing framework in England and Wales, it is evident that there are a number of initiatives and evidence-based proposals that are not available in Kenya but which could play an important role in supporting the rights of offenders’ children. As pointed out in Chapter One, Kenya is still a developing Commonwealth country, and therefore formulation of statutory law that specifcally addresses the unique circumstances of the children of convicted mothers is a work in progress. To assist and accelerate development, the study will therefore borrow heavily from England and Wales, identifying penalties and practices that could be modifed for introduction into the system of justice in developing jurisdictions, giving due regard to the situations obtaining in the country.

6.4.1 Curfews and electronic monitoring In most jurisdictions including Kenya, the government may impose curfews in areas experiencing insecurity, such as the earlier mentioned tribal clashes. During these periods, no one is allowed to be outside their dwelling places after specifed hours. Electronic monitoring in the criminal justice system in England and Wales is closely associated with the imposition of curfews, effectively requiring an offender to be in a particular location during specifed periods each day. Usually, it requires the offender to remain at their home, or an approved residential address, from early evening until the morning. The offender is required to wear an electronic tracking device, tied to their wrist or ankle, which uses radio frequency transmission in order to establish that they are at the required location.22 A more precise form of monitoring is provided by using global positioning technology (GPS), commonly associated with mobile phones and navigation systems in cars. This allows the tracking authority to monitor continuously an individual’s location and movement. They can be used to prohibit offenders from entering particular localities associated with their offending. For example, where an offender is convicted of repeated shoplifting from a particular shopping centre, then she may be prohibited from going to particular shopping districts. A relatively recent innovation, sometimes referred to as the ‘sobriety tag’, allows for alcohol abstinence to be monitored by electronically testing perspiration every 30 minutes or so. Clearly, technological advances can provide innovative solutions to criminal justice problems previously seen as only resolvable by resort to incarceration. They provide important alternatives to custody for women offenders, in that they safeguard the public but also respect the rights and interests of the women’s children, who can remain in their own homes under their mother’s care. Arguably, the main danger posed by technological surveillance is

22 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 344.

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that of ‘net widening’, whereby measures are used not to replace the incapacitative function of prisons, but to intensify state control over offenders who would not have received a custodial sentence.

6.4.2 Intensive supervision probation (ISP) Intensive supervision, which is defned as a ‘high tariff’ non-custodial penalty, is available not only in England and Wales but in a number of other jurisdictions, such as New Zealand.23 Offenders may be placed under GPS surveillance to restrict their geographical boundaries and oversee their compliance with the terms and conditions of their freedom. The order may require a daily meeting with their probation offcer or random drug tests or attendance at treatment programmes. Implementation of this order in developing countries would arguably reduce the numbers of women being incarcerated for repeated property offences committed to support drug abuse, and could also foster better care of their children through the process of intensive supervision. These orders can therefore offer a high degree of incapacitation, an aim of punishment typically associated only with imprisonment. Most importantly, modern technology allows for more innovative approaches to incapacitation, by tailoring restrictions to the specifc risks posed by the offender, whilst also avoiding the unintended punishment experienced by children whose mothers are incapacitated by custodial sentences.

6.4.3 Generic community order As mentioned earlier, the Kenyan government could follow the practice in England and Wales of introducing ‘a single generic community sentence’ that combines various specifc requirements in a single order.24 The advantage of the generic model is that it gives maximum fexibility to the court, enabling different requirements to be attached that are tailored to the individual offender’s broader welfare needs and criminogenic risks.25 Arguably, different purposes can be served if different elements are combined. In this way, hard treatment can be imposed without custody, through measures such as unpaid work, whilst also pursuing rehabilitative interventions, such as drug or alcohol treatment. Every sentencer dealing with a matter that involves dependent children should be legally mandated to request a pre-sentence report to ensure that the court is adequately informed of the offender’s capabilities and responsibilities. Unless a caregiver’s

23 Correction Department NZ Intensive Supervision available at https://www.corrections.g ovt.nz/working_with_offenders/community_sentences/sentences_and_orders/intensive -supervision.html accessed 30 September 2018. 24 Correction Department NZ Intensive Supervision available at https://www.corrections.g ovt.nz/working_with_offenders/community_sentences/sentences_and_orders/intensive -supervision.html accessed 30 September 2018 25 Ashworth Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 339.

Recommendations 141 offence is clearly above the non-custodial threshold, probation offcers should conduct interim assessments of offenders in order to avert the long delays occasioned by home visits, which normally take two weeks in Kenya. However, as pointed out earlier, many female offenders withhold personal information, particularly information relating to their children, for fear of loss of custody. Greater consideration needs to be given as to how women offenders can be supported as mothers, instilling a willingness to divulge information in the knowledge that this will be used to support their parenting and the wellbeing of their children, rather than to undermine the stability and integrity of the family. As pointed out in the previous chapter, there is also a need for sentencers to exercise caution and not to overload a community order which can then become too onerous, leading to breach.

6.4.4 Offence-specifc Guidelines as opposed to the generic Guidelines In Chapter Six, it was noted that the Kenyan Sentencing Guidelines are generic in form, as opposed to being offence-specifc. Although they guide the courts on how to approach the decision-making process in sentencing, paying due regard to personal circumstances and the seriousness of the offence, the overall consistency of sentencing would arguably be enhanced by the introduction of offence-specifc guidelines. These were introduced in England and Wales and are now provided for every category of offence, such as robbery, theft, manslaughter, and sexual offences. The Sentencing Council has also published guidelines for sentencing specifc categories of offenders, such as children and young people, and offenders who plead guilty, as well as guidance on the imposition of community and custodial sentences. The formulation of mandatory sentencing guidelines specifcally tailored to address the sentencing of mothers with caring responsibilities for young children could accelerate a shift away from custodial sentences, requiring the courts to consider the negative impact of custody on children and emphasising accountability for children’s rights and wellbeing. Although offence-specifc and other focused guidelines have taken years to develop in England and Wales and cannot be conjured up overnight, they can provide a model for the professional development of Kenyan sentencing in the medium and longer term.

6.4.5 Renaming and modifying MBUs In some developed countries such as England and Wales, the practice of having Mother and Baby Units (MBUs) inside women’s prisons is justifed on the grounds that they offer a nurturing and supportive environment for both mothers and their accompanying babies. The offcial title for this accommodation is Mother and Baby Units which, by using the word and, in my view, serves to criminalise the baby too. The child has not been legally and procedurally tried and convicted like the mother, but is in custody by virtue of being dependent on the incarcerated caregiver. This research therefore strongly suggests rewording the phrase Mother and Baby Units to read Mother with Baby Units in order to

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accord the child due respect now and in adulthood. Although in the developing countries like Kenya, construction of similar accommodation for children may be hindered by lack of fnancial investment, it is suggested that a short-term amelioration of existing arrangements could be achieved by setting aside designated cellular accommodation for expectant women and mothers with dependent children. This could replace the current practice of holding them amongst other female prisoners whilst the longer-term solutions discussed above are developed.

6.5 Examining the application of precedence set by case law in view of child-related mitigation Being a Commonwealth country and a common law jurisdiction, sentencing principles in Kenya are set out in parliamentary legislation and in case law. However, the inception of the Sentencing Guidelines in 2016 adds a third layer to lawful defnitive sentencing in Kenya. Section 25 (1) of the Kenyan Sentencing Guidelines states that ‘where there are guideline judgements, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bound by it’.26 It is argued that a guideline judgement is a judgement setting out the general parameters on how to deal with various aspects of a particular offence, and suggests the proper range of sentence after taking into consideration the main factors that mitigate or aggravate the offence.27 Arguably, where such judgements are bound by existing precedent and existing statutory law in pursuit of legal certainty and uniformity before the law, there is a risk that this can work to the detriment of children’s rights and interests. Although judicial precedence is less binding in criminal rather than civil cases, arguably no two cases are identical in terms of the motive, facts, and circumstances of the offenders or victim.28 Challenging the principle of the court’s subservience to previous decisions, Justice Holmes observes that case law is not an ‘antiseptic product of logic’ or ‘a brooding omnipresence in the sky’ but the judge’s understanding of the ‘necessities of the time, the prevalent moral and political theories, intuitions of public policy avowed or unconscious, even the prejudices which judges share with their fellow men’.29 Judge Holmes states that Just as the clavicle in the cat only tells of the existence of some earlier creature to which a collarbone was useful, precedents survive in the law long

26 Section 25 (1) of the Kenyan Sentencing Guidelines. 27 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press, ffth edition, (2010) 36. 28 Mackenzie, (2005) 45. 29 Oliver Wendell Holmes, The Common Law Courier Corporation (2013) 34.

Recommendations 143 after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from a merely logical point of view.30 However, sentencers are mandated to explain the departure from precedence pursuant to the provisions of Section 169 (1) of the Kenyan Criminal Procedure Code31 as well as Section 24 (2) of the Kenyan Sentencing Guidelines.32 Although Section 3 of the Sentencing Guidelines advocates equality before the law, this does not mandate identical treatment. Treating mothers with dependent children differently from other offenders in order to protect children’s rights does not therefore constitute gender bias, nor does it violate the principle of proportionality, which must take account of the obiter harms caused to the wellbeing of innocent children. Viewed as holders of equal rights, the application of punishment that separates children from their caregivers, or compels them to accompany their mothers into prison where they suffer harsh treatment, can constitute an abuse of their rights under the UN Convention. As pointed out in Chapter Three, the Constitution of Kenya 2010 domesticates the UNCRC, the main international instrument governing the rights of the child. Indeed, in the case AOG v SAJ & Another [2011] Eklr at Nairobi,33 the counsel, Mr Kinyanjui, stated that under Article 2(5) & (6) of the Constitution 2010, the general rules of international law, as well as treaties and conventions ratifed by Kenya, were part of domestic law and that Kenyan courts had recognised the competence of other jurisdictions in certain matters. The Court of Appeal reiterated that the best interests of the child should always be the guiding factor applied by the courts in determining matters relating to children. However, the UNCRC gives no clear defnition of how the rights and interests of the child should be determined. Indeed, Emily Logan, the Ombudsman for Children in Ireland, argues that ‘there is purpose to this lack of specifcity – it allows for an appropriate balancing of considerations within a well-defned procedural framework’.34 However, Melanie Chatenoud observes that although the motive behind this omission may have been well intentioned, it creates a

30 Oliver Wendell Holmes, The Common Law Courier Corporation (2013) 34. 31 Kenyan Criminal Procedure Code Section 169 (1). The section provides that every judgement shall ‘be written by or under the direction of the presiding offcer of the court in the language of the court, and shall contain the point or the points of determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding offcer in the open court at the time of pronouncing it’. 32 Kenyan Sentencing Guidelines Section 24 (2) states that ‘Where the court departs from these Guidelines, it must give reasons’. 33 Available at www.kenyalaw.org accessed 17 August 2018. 34 Emily Logan, ‘The Child’s Best Interest: A Generally Applicable Principle’, (2008 Janusz Korczak Lecture given in the framework of the conference ‘Building a Europe For and With Children, Toward a Strategy for 2009–2011’, organised jointly by the Council of Europe and the Swedish Chairmanship of the Council of Europe in Stockholm on 9 September 2008, available at https://rm.coe.int/1680da904 accessed 17 August 2018.

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vacuum for sentencers, enabling them to draw back on the rights envisioned in the UNCRC.35 She argues that the use of the ‘best interests’ concept essentially appeals to the subjectivity of the decision maker who, in practice, renders a decision according to what he or she perceives as being in the child’s best interests at the present moment and in the prospective future. Nevertheless, Chatenoud goes on to observe that whereas this ‘makes it adaptable to different situations’, it also could be a double-edged sword. She points out that ‘beyond this positive characteristic, the concept can leave such ample room for maneuver to the decision-makers that they can impose their own idea of this principle at the child’s expense’.36 Supporting this view, Emily Logan observes that the determinacy of best interests may not arise where the UNCRC is not domesticated, or in situations whereby the individual rights holder is not availed representation from a solicitor, counsel, or guardian. This was exemplifed in the UK Supreme Court in N & Another v Health Services Executive and others (Baby Ann case). In this case, the parents had placed the child for adoption with the respondents, Mr and Mrs Doyle, but later withdrew their consent, and sought the return of their infant. The judge, Murray C.J., observed that ‘the immediate care and welfare of the infant is a matter to which the Court must have regard, it is necessary to address the form of order which the Court should make’.37 Nevertheless, he proceeded to grant custody to the parents without seeking the child’s wishes. Logan opines that children’s needs are considered and determined by adults on their behalf and, more signifcantly, sometimes those needs are not given the weight they deserve because there is no conceptual barrier to having them subsumed into the needs of other individuals or groups. They are not always a full part of the equation.38 As pointed out in Chapter One, in EB (Kosovo) v Secretary of State for the Home Department, Lord Bingham of Cornhill underscores the need to pay particular attention to the circumstances surrounding each case involving separation of children from their caregiver.39 The requirement for delicate evaluation is also evident in the case of R v Bishop (Wayne Steven), a single father of fve children aged between 5 and 13, who was sentenced to four months imprisonment

35 ‘The Child’s Best Interest’, available at https://www.humanium.org/en/the-childs-best-i nterest/ accessed 21 February 2018. 36 The Child’s Best Interest’, available at https://www.humanium.org/en/the-childs-best-i nterest/ accessed 21 February 2018. 37 N & another v Health Service Executive & others [2006] IESC 60. 38 Emily Logan, ‘The Child’s Best Interest: A Generally Applicable Principle’, (2008 Janusz Korczak Lecture given in the framework of the conference ‘Building a Europe For and With Children, Toward a Strategy for 2009–2011’, organised jointly by the Council of Europe and the Swedish Chairmanship of the Council of Europe in Stockholm on 9 September 2008, available at https://rm.coe.int/1680da904 accessed 17 August 2018. 39 [2008] UKHL 41, [2009] AC 1159.

Recommendations 145 for dangerous driving and four months consecutively for burglary.40 The Appeal Court observed that ‘there is little, if any merit to be found in relation to the appellant and it is important that criminals should not think that children can provide … licence to commit criminal offences with impunity’.41 Nevertheless, allowing the appeal and suspending the eight months sentence, the court took note of the hardships of the children as a consequence of their father’s incarceration and stated that we have to be aware of the highly unsatisfactory and diffcult situation faced by the children and those now doing their best to look after them. We have come to the conclusion … that the appropriate course is to allow the appeal and to suspend, for a period of two years the consecutive sentences which were pronounced by the judge.42 In the case of R v Rosie Lee Petherick (2012), the Court of Appeal in England and Wales guides the court in giving due regard to the effects of the sentence on third parties dependent on the offender and, more specifcally, their dependent children.43 In this case, a single mother of a two-year-old child was sentenced to four years and nine months imprisonment for causing death by dangerous driving under the infuence of alcohol. The court noted that in addition to affecting the offender’s rights, a sentence negatively affects the rights of dependent children as well as adults she may have been caring for prior to the offence. It was observed that these caring responsibilities should qualify as mitigation of the merited punishment. Further support for this line of reasoning is found in the UK Supreme Court in the case of R v Mills (2002), where a mother of two dependent children was convicted of two charges of obtaining goods by deception and sentenced to eight months imprisonment. Allowing the appeal, the court observed that the defendant was in fact the sole carer for her two dependent children and noted that as the offender was of previous good character, and that it was a borderline case with no element of violence, the courts should ‘impose a punishment which is ftting and appropriate for that nature of offence’ and ‘strive to avoid sending her to prison and instead use punishments in the community which enable offenders to repay the harm they have done’. The court concluded that It was not only not necessary to send her to prison, it was wrong in principle for the judge to do so. We emphasise that the judge was wrong to say that

40 [2011] EWCA Crim 14146 NO 201102123/A3. 41 EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159 para 12 available at https://lexisweb.co.uk/cases/2008/june/e-b-kosovo-fc-v-secre tary-of-state-for-the-home-department accessed 20 October 2018. 42 EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159 para 12 available at https://lexisweb.co.uk/cases/2008/june/e-b-kosovo-fc-v-secre tary-of-state-for-the-home-department accessed 20 October 2018. 43 [2012] EWCA Crim 2214.

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Recommendations that was the only course that he could take … Further, if, contrary to our view, it was necessary to send this appellant to prison, this was a case where all that would be required is the clang of the prison door. That being so, not eight months’ but one month’s imprisonment should have been imposed.44

The Kenyan court could substantially reduce the number of children entering prison with their mothers by following the jurisprudence set by the international case law explored herein. As will be explored in the conclusion, the reasoning followed by the judges in these cases should be disseminated to all sentencers in Kenya.

6.6 Exploring the Power of Mercy Act in securing release for the children accompanying incarcerated mothers One strategy that could be used to effect an immediate reduction in the number of children accompanying their mothers in prison is the exercise of the prerogative of mercy. In the case of Kenya, the power to pardon is governed by the Power of Mercy Act number 21 of 2011. This provides for the appointment, powers, and functions of the Advisory Committee on the Power of Mercy45 under whose advice the president is granted the power to pardon by the Constitution of Kenya, upon petition by an individual or the prisoner’s representative. This may be done by a) Granting a free or a conditional pardon to a person convicted of an offence; b) Postponing the carrying out of a punishment, either for a specifed or indefnite period; c) Substituting a less severe form of punishment; or d) Remitting all or part of a punishment.46 In most instances, the president makes the pronouncements of pardon during the Mashujaa (heroes in Swahili language) Day commemorated on 20 October every year. Those pardoned mostly include aged and reformed prisoners upon the advice of the Power of Mercy Committee. This study suggests that this noble gesture should be extended to incarcerated caregivers as a short-term emergency strategy to remove children from prison. However, the power to pardon is inevitably susceptible to abuse and should therefore be subjected to strict checks and balances through tribunals to ensure effciency, accountability, and effectiveness in its application. The rule of law is intended to

44 Mill, R. V. [200] EWCA Crim 26 (14 January 2002). 45 Constitution of Kenya (2010) Article 133 Subsection 2 states that the Power of Mercy Advisory Committee comprises of the Attorney General, the Cabinet Secretary responsible for correctional services, and not less than fve other members who are not from the Public Service or State offcers as provided by the Power of Mercy Act. 46 Constitution of Kenya (2010) Article 133 Subsection 2(2).

Recommendations 147 protect against arbitrary governance on the basis that no one is above the law. Thomas Paine correctly points out that ‘for as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other’.47

6.7 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.48 One of the participants, Judy Krysik, observed that ‘the most rapid and signifcant period of growth in terms of unique health, emotional needs and development in the human life span, occur in early childhood’.49 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’.50 Reform to remove children from prison with their mothers should therefore become an integral part of this broader movement in recognising children’s rights.

6.8 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

47 Thomas Paine, Common Sense (1776). 48 The international conference was held at Daystar University, Kenya, in August 2016. The conference was attended by stakeholders in Kenya and other African countries, as well as by international organisations such as UNICEF, Plan International, International Commission of Jurists, and International Justice Mission, among others. 49 Dr Judy Krysik, Arizona University, ‘Zero to Three Safe Babies Court Team’, keynote presentation at Daystar University in Kenya in August 2016 during an international conference on the best interests of children in the criminal justice system. 50 Dr Judy Krysik, Arizona University, ‘Zero to Three Safe Babies Court Team’, keynote presentation at Daystar University in Kenya in August 2016 during an international conference on the best interests of children in the criminal justice system.

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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.51 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 signifcantly fewer women with children, although their claims were not tested objectively.52 Nonetheless, it is signifcant 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

51 Linda Kosgey was a resident magistrate at Makadara Law Courts in Nairobi, Kenya, in 2014. 52 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.

Recommendations 149 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 signifcance 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 UNCRC 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 justifcation in the event of individual departures and even an automatic right of appeal. Such measures would signal the legal signifcance of the harms imposed and would aid the exercise of consistency in discretionary judgements without undermining the necessary fexibility 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 offcially 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 faw that requires immediate correction and is fundamental to any safekeeping of the child.

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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 beneft 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 fles, 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 signifcantly 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.53 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 confdence 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 deeprooted patriarchal attitudes towards women. In Kenya, this is exemplifed 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 refect women’s

53 Lawrence Sherman and Heather Strang (2007) Restorative Justice: The Evidence, London, The Smith Institute.

Recommendations 151 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.54 Russel opines that ‘one of the best ways to understand a nation is to understand who it decides to put in jail and why’.55 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 fnancial 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.56 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.57 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 fndings of the Audit confrm 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 fnding 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 fndings was that, serious offences such as organised crime, capital offences and sexual offences were found to have the highest rate of acquittal or withdrawals.58

54 Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and OverUse From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 55 Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and OverUse From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 56 Jessica Jacobson, Catherine Heard, and Helen Fair, ‘Prison: Evidence of its Use and OverUse From Around the World’, Institute for Criminal Policy Research (ICPR) (2017) v. 57 The National Council on the Administration Justice, ‘Report on the Criminal Justice System in Kenya: An Audit’ (2016). 58 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, Long Walk to Freedom (1995) 187 available at https://www.azquotes.com/quote/363682 accessed 20 October 2018.

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6.9 Conclusion 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 fscal and political factors that may hinder the implementation of the recommendations made herein, whilst also considering how such risks can be ameliorated.

7

Conclusion: The rights of the child, women, and sentencing

Internationally, the greater part of child-raising responsibilities are undertaken by women. In developed countries, the government may actively participate in providing such families with housing and weekly or monthly fnancial support for the particular child. However, in the majority of African countries, including Kenya, most mothers have several children, and many are single parents. Incarcerating a mother therefore exposes the older children she leaves behind to signifcant hardship, while at the same time subjecting the ones she takes with her into prison to the congestion and limitations obtaining therein. Globally, all sentencers faced with a pregnant woman or a mother with a baby accompanying her in court should resolve the confict between the punishment of the convicted offender and the rights and interests of their autonomous child. Depending on the stage of the pregnancy, the sentencer may be tempted to send an expectant mother to prison hoping that she will be released before the baby is born. However, in the case of mothers accompanied by young children, the sentencer could consider which is the lesser evil: separating the mother from her baby, who is sometimes still breastfeeding, or putting the baby in prison with the caregiver. However, in my experience as a sentencer, neither of these options provides a satisfactory and progressive child-focused outcome. This is the dilemma this book sought to respond to by seeking acknowledgement of the child as an equal holder of human rights and to procedurally locate accountability for the child’s wellbeing with the judiciary though the trial court. This marks a radical departure from the current approach, where there is no clear guidance, leaving the rights of such children in abeyance and without a structured judicial consideration or effective legal protection. Arguably, incarcerating mothers curtails their ability to raise their children as they would wish, but convicted mothers are not exempted from state punishment on the basis of their caregiving responsibilities. Nevertheless, dependent children remain innocent of their mother’s crime. In Chapter Three, the study explored a range of academic literature that addresses the practice of incarcerating mothers with their young children, as well as the effect of a mother’s incarceration on children who are left outside prison. Although the literature examines practices and policies employed in developed countries that may not be fnancially feasible in Africa at this time, it was

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imperative to consider this research in order to locate the current study within the international knowledge base and to learn from practices developed elsewhere. Additionally, the academic literature in this study informs the way forward for African states in relation to the protection of the rights and interests of children of incarcerated mothers. However, the explored literature predominantly approaches the subject from the mother’s perspective, mainly focusing on the limitations imposed on her caregiving responsibilities by the imprisonment, as opposed to the impact of the incarceration on her dependent children, who remain autonomous rights holders despite their inability to claim these rights for themselves. The literature also draws attention to the fact that across jurisdictions, the majority of women sentenced to imprisonment are suitable for non-custodial sentences, with theft and handling being the most common category of offence. A common argument was that many female offenders have unmet mental health needs or are victims of domestic violence or sexual abuse and should be placed in suitable gender-appropriate treatment programs, rather than being given a term of imprisonment, since the majority of them pose no danger to the community. In relation to the children of imprisoned mothers, the literature evidenced not only their material deprivation and the invisibility of their rights in the sentencing process, but also the intergenerational impact caused by the early separation of mother and baby. Children under the age of two are said to suffer from intellectual, emotional, and psychological challenges as a result of such separation, while older children who remain outside experience insecure attachments, such as poor peer relationships, aggression, anger, and hostility. Most importantly, the literature exposes an important defcit in both the law and penal practice globally, namely the need to make prisoners’ children administratively visible, with their rights and interests respected and explicitly and effectively protected. The literature reveals that this gap exists in both the developed world and in developing countries such as Kenya. However, women’s incarceration, with the resultant presence of children who accompany them into prison, is a rising phenomenon that requires urgent attention. While some of the practices emerging from the literature, such as the provision of Mother with Baby Units (MBUs), appear to be ameliorating some of the harm caused by separating mothers and babies, it is unlikely that these will be feasible in the Kenyan context where children’s rights and interests remain largely invisible to the authorities and with the prevailing economic challenges and the current level of development. Yet the imprisonment of babies with their mothers is unjust in ways that extend beyond the physical conditions of the prison, irrespective of where this may be. Prioritising the rights of the child demands an acknowledgement and appreciation of their status as equal holders of rights, and consequently a re-evaluation of the legitimacy of the sentencing process that leads to the imprisonment of their mothers, thereby occasioning disruption of the family fabric, despite such cases typically falling within the parameters of non-custodial penalties, as explored earlier. Although very young children lack suffcient mental capacity to conceptualise the implications of their incarceration and its accompanying lack of freedom, it

Conclusion 155 may be argued that the current and future needs of such children go beyond their mere proximity to the mother. Viewed from this perspective, each child is a morally and legally independent individual, despite his or her dependence on the caregiver and on the prison authorities for their material needs and survival. Despite the material resources invested in MBUs, the children’s current and future wellbeing, and the realisation of their right to a social and family life as envisaged under the United Nations Convention on the Rights of the Child (UNCRC), cannot be fully realised. Broadly, the literature calls on the criminal justice system to promote alternatives to incarceration and to preserve and strengthen family ties, while the community is urged to adopt a more sympathetic attitude towards punishing convicted mothers with caregiving responsibilities. This is in line with the UNCRC preamble, which provides that ‘the child, for full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, considering that the child should be fully prepared to live an individual life in the society.’1 Chapter Four focused upon sentencing practices in greater detail. It examined the content of the Sentencing Guidelines in operation in Kenya, critically assessing their awareness of gendered considerations while sentencing female offenders. It was found that the Guidelines encapsulate some important principles that could form the basis for signifcant sentencing reform, allowing acknowledgement of offenders’ children and consideration of the children’s best interests in accordance with the UNCRC. The Guidelines potentially facilitate less use of custody when sentencing mothers of young children, whose offences typically place them below the threshold to custody, even before any consideration is given to their personal mitigation. The primary sentencing principle embodied in the Guidelines is that of proportionality, limiting the parameters of the sentence to the seriousness of the offence. On this basis, the Guidelines have identifed a relatively high threshold to custody, based on offence seriousness and the need to protect the public from serious harm. Judicious application of the threshold should therefore result in non-custodial sentences being imposed on most mothers of young children. The chapter questioned the unchecked application of the court’s discretion in cases involving mothers with dependent children but rejected the complete removal of judicial discretion in order to avoid infexible and restrictive decision-making that fails to do justice in individual cases. Instead, it concluded that reforms should focus on the removal of arbitrary bias, favouring Guidelines that aim to provide consistency in the process of sentencing, identifying relevant criteria to be considered by judges in order to enable accountable decisions that take into consideration the obiter punishment, unless there is a need to protect the public from the risk of serious harm posed by the offender. The penultimate chapter explored how practical sentencing reforms could reduce the use of custodial sentences for women with children and help resolve the challenges that may face sentencers in implementing the recommendations

1 UNCRC preamble.

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made herein. It suggests applying laws and practices already available as well as implementing penalties and practices from other jurisdictions, such as England and Wales. The existence of supportive case law setting precedents in this area was also explored, with a view to informing policy and practice that would prioritise the rights of the child. As an immediate and short-term emergency measure, the chapter also considered how the presidential power under the Power of Mercy could facilitate the immediate release of suitable mothers accompanied by their dependent children in prison. It may, however, be argued that taking into account a mother’s caregiving responsibilities is tantamount to giving them preferential treatment and violates the principle of equality before the law, since some caregivers could use their dependent children to defeat justice, fraudulently claiming a commitment to the children’s wellbeing, when the willingness to expose the children to risks is evidenced by mother’s offending behaviour. Indeed, Dwyer argues that some women awaiting a criminal trial that is likely to result in a prison sentence may try to become pregnant to avoid incarceration.2 Supporting the view that the sentencer should be wary of the child being used as a mitigating factor by the accused, a judge warns of the dangers of ‘going soft’ on women offenders as this would ‘just be a green light’ for smuggling drugs into the prison for their partners.3 He observes that ‘it would be very easy for a bloke to say to his girlfriend, “Come on bring it in, they won’t do anything to you because you’re pregnant, or you’ve got a baby.” And if that message goes out, it’s ‘oh we can get away with this’.4 However, viewing this scenario from a children’s rights perspective, such children would still be innocent of their mother’s conniving, which should not be used against their interests and rights. Arguably, forcefully removing the child from the convicted caregiver as suggested by Dwyer is punishing the mother beyond the crime, hence the need for a proper balance of the conficting rights. To acknowledge and personalise the child’s visibility as a human rights holder, the judiciary should, as a matter of urgency, introduce a sub-fle for every child accompanying an incarcerated mother in court. The sub-fle should be placed inside the caregiver’s main court fle to enable the court to request follow-up information relating to the child’s rights and wellbeing. This would provide a new mechanism of accountability, making children visible pursuant to the provisions of Article 7 of the UNCRC by requiring notifcation of their identity with

2 James Dwyer, ‘Jailing Black Babies’ (2014) Faculty Publication, Paper 1715 available at https ://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.bing.com/&httpsredir=1&article=2751&context=facpubs accessed 20 October 2018. 3 Carol Hedderman and Clare Gunby, Diverting Women from Custody, the Importance of Understanding Sentencers’ Perspectives available at http://journals.sagepub.com/doi/full /10.1177/0264550513502249 accessed 17 August 2018. 4 Carol Hedderman and Clare Gunby, Diverting Women from Custody, the Importance of Understanding Sentencers’ Perspectives available at http://journals.sagepub.com/doi/full /10.1177/0264550513502249 accessed 17 August 2018.

Conclusion 157 information such as their name, sex, parents’ name, and date of birth;5 and, in cases of a child’s death, their place of burial should be identifable and the family involved. It calls for greater investigation of the mother’s caregiving responsibilities during arrest, as well as the circumstances of her children inside and outside prison. Sentencers should explain what measures they have taken to avoid incarcerating a mother, and what ultimately led them to impose custodial rather than non-custodial punishment. The measures taken to inform the senior courts of the presence of a child in a particular secure facility must also be made transparent. The need for a mandatory judicial requirement that every sentencer identifes in the courts’ returns the presence of any child they placed in prison with an incarcerated caregiver, as well as the babies born by offenders appearing before their court, cannot be gainsaid. It is appreciated that the workload of sentencers in most countries is very high, and new administrative procedures will risk requiring additional work and resources. However, ignoring children’s rights is not a morally or legally defensible option. Instead, to counter these diffculties, the government could require greater use of diversion and out-of-court settlement, which could reduce congestion in the lower courts, and it could invest in building more courts and employing more sentencers to speed up hearings. The cost of these measures could be offset by the reduction in the use of imprisonment. Inevitably, all the proposals discussed herein will require new training by the Judicial Training Institutes (JTI) and the training of advocates by the Law Societies under their Continuous Legal Education (CLE) programme. The lawyers undertaking bar examinations as well as university law students should also receive legal training that enables them to consider the conficting demands that arise during sentencing in relation to the court’s duty to punish offenders whilst upholding the rights and best interests of their children. Globally, criminological research is clear that the solution to female offending ultimately lies in broader social policies rather than strategies of state punishment. Consequently, there is dire need to pay wider attention to social justice and the sources of inequality that underpin much of the criminal activity engaged in by mothers with dependent children. Jacqueline Martin observes that the law of a particular country is the true refection of the moral values acceptable to the majority of its citizens, and that ‘the moral values of communities lay down a framework for how people should behave’.6 Research shows that in most jurisdictions globally, the status of the voiceless children of imprisoned mothers as human beings appears to be left in abeyance, because the practices and policies

5 The Convention provides that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. It particularly states that ‘Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child’. 6 Jacqueline Martin, The English Legal System, Eighth Edition (2016) 176.

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that shape the criminal justice process exclude consideration of their rights and interests. Currently, the children of convicted caregivers have no legal audience in court. Additionally, courts routinely fail to acknowledge children’s rights, which are eclipsed by the state’s impetus to punish the convicted offender. It is important to point out that although there are no perfect solutions to this predicament, over 85% of convicted mothers were suitable for non-custodial sentences, as explored earlier. Arguably, of the remaining 15%, very few of them are nursing mothers or pose a threat to the public, in which case relatives should step in to raise the child, and, in their absence, the state should provide placement for the child. In view of increasing international child traffcking cases, the placement should only be done after careful assessment of the institution being entrusted with the upbringing of the child. Frequent and thorough assessment of the institution’s registration and documented practices should be conducted by a competent tribunal set up by the government. Ultimately, therefore, this study strongly argues for the removal of all babies from prisons, as opposed to a reduction in the numbers. As the situation stands, society has continuously failed prisoners’ children by not only overlooking their rights and interests as autonomous and equal holders of human rights but also failing to project their identity and sense of self-worth in adulthood.

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Index

1991 Criminal Justice Act 102 Abbot, J H 36 Absolute Discharge 106 accountability 149; principles of sentencing 84 ACRWC (African Charter on the Rights and Welfare of the Child) 2–4 additional hardship 118 adoptions 62 African Charter on the Rights and Welfare of the Child (ACRWC) 2–4, 51 African Union (AU) 2 age limit of children with mothers in prisons 13, 52 age of maturity 13 aggravating factors 108–109; previous convictions 138 Akech, M 125 alcohol related crimes 70–71 Alcoholic Drinks Control Act 106n130 Alejos, M 56–57, 60 Alexander, T 111, 113 Annan, K 92 AOG v SAJ & Another [2011] Eklr at Nairobi 143 appropriate sentences, determining 107–115 Aquinas, T 5–6 Archard, D 134–135 Arditti, J A 55 arguments against MBU (Mother and Baby Unit) 60–63 Aries, Philippe 134 Ashworth, A 89, 111, 113–114, 121–122, 138 AU (African Union) 2 Australia, women in correction 41

averting fow of children into prison, non-custodial sentences 135–138 awareness of children’s predicament 147 Ayre, L 40 babies, practice of putting babies in prison 51–58 Bagaric, M 111, 113 bail 100 Baker, L 46 Baldry, E 36 banishment 68 Baumgartner, I 29 Baunach, P 43 Becker, D 49 best interests of the child principle 13, 48, 129, 144; UNCRC (United Nations Convention on the Rights of the Child) 14–17 Binding Over Order 106 Bingham, T 123 Bohm, D 6–7 breastfeeding 58–59, 73 burglary, emotional trauma 38–39 Burnett, R 90 by-products of trial and sentence 112 Cameron, D 56 Canada, maternal imprisonment 46 Canada’s Correctional Service 35 Canton, R 112–113 capital punishment 90, 97 caring responsibilities for children 131 Carlin, M 44 case law, application of precedence 142–146 cases: AOG v SAJ & Another [2011] Eklr at Nairobi 143; EB (Kosovo v Secretary of State for the Home

Index Department) 16, 144; Fatuma Hassan Salo v Republic 125; Minister for Immigration and Ethnic Affairs v Teoh 16; N & Another v Health Services Executive and others (Baby Ann case) 144; Olliver v Olliver (1989) 102; R v Bishop (Wayne Steven) 144–145; R v Mills (2002) 145; R v Rosie Lee Petherick (2012) 145; Reid (1982) 114; S v M 53; Wenman (2004) 114; ZH (Tanzania) v Secretary of State for the Home Department 14–16 challenges to implementing proposals 147–151 Chatenoud, Melanie 143–144 Chesney-Lind, M 39 child, defnition of 13 child neglect 75 child offenders, non-custodial sentences 129 childhood 134–135 child-related mitigation, precedence set by case law 142–146 children: accompanying incarcerated mothers 71–75; death in prison 75; death penalty 120; problems experienced by children left outside prison as mother serves the sentence 41–51; special considerations for sentencing 119–121; those left outside while the mother serves custodial sentences 76 Children Act 2001 3 Children Act (2012) 72 Children Department 2, 130, 147 Christie, N 126 Chuma, M 77 Clarke-Stewart, K A 42, 49 CLE (Continuous Legal Education) programme 157 Clean Start 76 Clean Start Kenya 70 collateral convicts 42 collateral harm 115 colonialism, justice 66–68 Comfort, M 48 committal warrants 74 Committee on the Rights of the Child 18 Community Order (England and Wales) 102 community protection and incapacitation, objectives of sentencing 95–96

171

community service 136 community service order (CSO) 103–104 compensation order 104–105 Conditional Discharge 106 consistency in the law 112; principles of sentencing 84 conspiracy of silence 50 Continuous Legal Education (CLE) programme 157 corruption 100 Corston, J 35 Corston Report 34 Crewe, B 33 criminal justice 31 Criminal Justice Act 2003 (England and Wales) 96 Criminal Procedure Code 119 CSO (community service order) 103–104 Cunningham, A 46, 49, 58 curfews 139–140 custodial sentences 34, 37, 99 customary law 76–77 Cuthbert, C 60 Datesman, S K 79 day-care for children in prison 73 day fnes 104 death in prison 71; children 75 death penalty 3, 89–90, 96; children 120 decarceration of offences 138 decision-making responsibilities, UNCRC (United Nations Convention on the Rights of the Child) 27 Declaration on the Rights of the Child 10–11; Preamble 54n110 denunciation, objectives of sentencing 97–98 detained children 25 deterrence, objectives of sentencing 88–90 deviance 97 Dinovitzer, R 44, 47, 49 disabled offenders, special considerations for 117–118 disadvantages for imprisoned women 32–34 discipline, violence 24 discretion 121; sentencing grids 125– 127; structured discretion 121–125

172

Index

discrimination of women 66 distress 112 Dixon, L 59 Dressler, J 126 Durkheim, E 98 Dwyer, J 50, 55, 61–62, 156 Earle, J 45 EB (Kosovo v Secretary of State for the Home Department) 16, 144 ECHR (European Court of Human Rights) 13 elderly offenders, special considerations for 117–118 electronic monitoring 139–140 emotional trauma: burglary 38–39; due to maternal imprisonment 43 employment 112–113, 115; personal mitigation 111 enforced adoption 62 England and Wales: babies in prisons 56; Children Act 2004 15; Community Order 102; community protection 96; community service order (CSO) 103; discretion 121; generic community order 140–141; guilty pleas 116; non-custodial sentences 135; offence-specifc guidelines 141; penal reform 34–35; positive contributions to society 114; practice of putting babies in prison 52; sentencing practices 39 ENOC (European Network of ombudsmen for Children) 14 Enroos, R 60 Epstein, R 2, 42 Equality Act 2010 117 European Court of Human Rights (ECHR) 13 European Network of Ombudsmen for Children (ENOC) 14 expectant mothers 149 family instability 43 Faraja Foundation day-care facility 73 Farrington, David 45, 47 Fatuma Hassan Salo v Republic 125 Female Movement 78 feminist criminology 77–79 Finding Security to Keep the Peace 106 fnes 104 Finnish Prison Act 60 Fletcher, George 138

Floud Committee 96 Food, Drugs and Chemicals Substances Act 106n130 Forfeiture Order 105 Fortin, Jane 29 Galloway, S 60 Gampell, L 46 Garland, D 86 gender equality 38–39 gender-blind strategies 35 generative goals 36 generic community order 140–141 Geneva Declaration on the Rights of the Child 11 geographical distance to prisons 32–33, 44 Gichuhi (Wagoni), Maria Nyambura 67n8, 68n9, 69n16 Gitaka (Ndirite), Joseph Muiruri 67n8 Gitaka, Teresia Kanini 67n8 Goldsmith, D 61 GPS surveillance 140 guilty pleas, special considerations for 116–117 Hagan, J 44, 47, 49 Hairston, C 47 Hansen-Weaver, J 62 Hawkins, K 122–123 Haynes, A 60 Heidensohn, F 77 Holmes, Justice 142–143 Hood, R 89 Hoyle, C 89 Hulley, S 33 human rights, principles of sentencing 84–85 Hutton, M 55 ICC (International Human Rights Court) 13 Immigration Appeal Decision (IAD) 54n111 implementing proposals 147–151 imprisonment, sentencing 99–100 incapacitation, sentencing objectives 95–96 incidental impact 112 inclusiveness 84 intensive supervision probation (ISP) 140 International Human Rights Court (ICC) 13

Index

173

investments 150 ISP (intensive supervision probation) 140

Locke, J 5–6, 86 Logan, E 14, 143–144 Lynn, H. 40

Jacobson, J 110 Jebb, E 10–11 Jenks, C 135 job loss 115 Johnston, D 44 Joyce, T 16 JTI (Judicial Training Institutes) 157 Judge P., I 124 judicial discretion 122 Judicial Service Act 2011 83 Judicial Training Institutes (JTI) 157 justice, colonialism 66–68 juvenile justice 25

Mackenzie, G 122, 126 Maguire, M 38 Mansson, I 45 Margolin, F 49 marriage, multiple wives 76–77 Marriage Act bill 77 Martin, J 157 Maruna, S 36, 90 Matheri, J K 67n8, 73, 76 Mboya, T 78 MBU (Mother and Baby Unit) 1; arguments against 60–63; renaming and modifying 141–142; support for 58–60 McVicar, J 36 Meienberg, P 73 Mental Capacity Act 16–17 Miller-Warke, J 41 Minister for Immigration and Ethnic Affairs v Teoh 16 Minson, S 45 mitigating factors 108–109 Mnookin, R 17 mob justice 86, 136 modifying MBU (Mother and Baby Unit) 141–142 Montaigne 134 Moran, D 55 Mother and Baby Unit (MBU) 1; arguments against 60–63; renaming and modifying 141–142; support for 58–60 mother-child bonding 58 mothers, children accompanying incarcerated mothers 71–75 Msangha, M 121 Mujica, J 54n112 Murray, J 45, 47 Musila, G M 92 Mutunga, W 9, 83

Kant, I 87 Kariuki, K 100 Kennedy Airlift 78 Kenya Gazette Notice No. 2970 83 Kenya Prison Act (Cap 90) 4 Kenyan Community Service Order Act 71n22 Kenyan Constitution 3; Article 2(5) 143; Article 2(6) 53; Article 6 143; Article 21 83; Article 27 66; Article 29(f) 117–118; Article 50 84; Article 53(2) 53; Article 54 117; Article 57 118; Article 73(2)(d) 84; Article 133 146n45; Article 159(c) 85; Section 2(6) 85 Kenyan Criminal Procedure Code 105, 109 Kenyan Penal Code 106n129 Kenyan Sentencing Policy Guidelines (2016) 71n22 Kenyatta, Uhuru 93 Kibaki, M 92 Kinoti, G 100 Kinyanjui, S M 124–125 Krysik, J 147 Lane, Lord 102 Lang’ata women’s prison 69–70, 71n25; day-care 73–74 Larson, J 50 League of Nations 10–11 Li, F 54n111 life 3 literature review on imprisonment of women 31–41

N & Another v Health Services Executive and others (Baby Ann case) 144 Nadin, R 45 Naivasha Women’s Prison 74 National Council on the Administration of Justice (NCAJ) 83 National Dialogue and Reconciliation (NDR) process 92

174

Index

natural justice 114–115 natural law theory 5 NCAJ (National Council on the Administration of Justice) 83 NDR (National Dialogue and Reconciliation) process 92 Nduta, L 29 Nelken, D 31–32, 51 The Nest Children’s Home 29 non-custodial sentences 37–38, 102, 128–129; Absolute Discharge 106; averting fow of children into prison 135–138; community service order (CSO) 103–104; compensation order 104–105; Conditional Discharge 106; Forfeiture Order 105; increasing punitive weight of 136–137; order to pay fnes 104; probation order 102–103 non-discrimination principle, UNCRC (United Nations Convention on the Rights of the Child) 13–14 nursing mothers 54, 58 obiter punishment 129 objectives of sentencing 85–87; community protection and incapacitation 95–96; denunciation 97–98; deterrence 88–90; rehabilitation 90–91; restorative justice 91–95; retribution 87–88 offence-specifc guidelines 141 offenders who enter guilty pleas, special considerations for 116–117 O’Keeffe, C 59 Olliver v Olliver (1989) 102 Ondinga, R 92 opposition to MBUs (Mother and Baby Units) 62 Orange Democratic Movement 92 Oxford University Standard for Citation of Legal Authorities (OSCOLA) 7 parental attachment 43 parental relationships, re-establishing 45 Parke, R D. 42 parsimony 81 participatory rights, UNICEF 22–23 Party of National Unity 92 paternalistic shielding 79 patriarchal mindset, society 76–78 Peay, J 117 penal reform 34–35

Penal Reform International 52 penal sanctions 98–102 personal mitigation 109–111, 128 persons of unsound mind, special considerations for 118–119 PEV (post-election violence) 92 Philbrick, K 40 Player, E 39, 117 police supervision 101–102 polygamy 76–77 positive contributions to society 113–114 post-election violence (PEV) 92 Power Mercy Committee 146 Power of Mercy Act 146–147 practice of putting babies in prison 51–58 Preamble, Declaration on the Rights of the Child 54n110 precedence set by case law 142–146 pregnant women 54, 149 pre-sentence reports 72 Presidential Order, persons of unsound mind 118–119 Presidential Power of Mercy 133 previous convictions 138 Price, R B 79 primary considerations 14, 16 Prison Act (Kenya) 52 Prison Service Order 4801 52 prison statistics 2 Prisons Act (1963) 72, 128 prisons for women 69–70 probation order 102–103 problems experienced by children left outside prison as mother serves the sentence 41–51 proportionality: non-custodial sentences 136–137; principles of sentencing 84 proposals for public policy 45–51 protection of children in custody 72–73 protection rights, UNICEF 23–26 Public Health Act 71 public perception, non-custodial sentences 136 public policy, proposals for 45–51 punishment 85–86, 97, 112; vicarious punishment 114 punitive weight of non-custodial sentences 136–137 Quaker United Nations Offce 57

Index R v Bishop (Wayne Steven) 144–145 R v Mills (2002) 145–146 R v Rosie Lee Petherick (2012) 145 raising awareness of children’s predicament 147 rates of incarceration 68 rational offenders 88 realisation of children’s rights, Kenya Prison Act (Cap 90) 28 recidivism 36, 70, 108 re-establishing, parental relationships 45 refugee children 21 rehabilitation 129–130; objectives of sentencing 90–91 rehabilitative initiatives 35 rehabilitative programs 37 Reid (1982) 114 religious tradition 23 removal of children from prison, implications of Sentencing Guidelines 127–131 renaming MBU (Mother and Baby Unit) 141–142 representation for children 25 resettlement 45 restorative justice 91–95 Restorative Justice Council 95 retribution, objectives of sentencing 87–88 revocation of licenses 106 right to life, survival, and development principle, UNCRC (United Nations Convention on the Rights of the Child) 18 right to self-expression, UNCRC (United Nations Convention on the Rights of the Child) 18–19 right to survival and development to one’s full potential, UNICEF 19–22 rights of the child 130; to be born in prison 128 Roberts, J V. 108, 110 Robertson, O 59 Rock, P 97 romantic relationships 48 Rossner, Meredith 91, 93 Russell, J 126, 151 S v M 53 Sachs, A 53 Saulters-Tubbs, C 78–79 Save the Children Organisation 10

175

Scarpitti, Frank R. 79 self-expression 18–19 self-harm 33 sentencing: courts approach to 98–102; custodial sentences 99; imprisonment 99–100; penal sanctions 98–102; police supervision 101–102; suspended imprisonment 101 sentencing grids 125–127 Sentencing Guidelines 4, 81–82, 85, 98, 131–132; determining appropriate sentences 107–115; discretion 121; implications for mothers that may support removal of their children from prison 127–131; special considerations for 115–121 sentencing objectives 85–87; community protection and incapacitation 95–96; denunciation 97–98; deterrence 88–90; rehabilitation 90–91; restorative justice 91–95; retribution 87–88 sentencing practices: England and Wales 39; key principles of 84–85 separation from parent 27 seriousness of offences 98–99 shielding children from incarceration 49–50 Shore, M 54n111 short custodial sentences 34 side-effects of punishment 112 Sikand, M 59 Smith, P S 46, 55 SMRs (United Nations Standard of Minimum Rules for the Treatment of Prisoners 53 social contract theory 86 social norms 97 society, affects from parental incarceration 49 Sokoloff, J N 79 South Africa, best interests of the child principle 53 Sozhenitsyn, A 37 special considerations, Sentencing Guidelines 115–121 Steadman, C 135 stigmatisation 55 structured discretion 121–125 Sumner, W G 94–95 support for MBU (Mother and Baby Unit) 58–60 suspended imprisonment 101

176

Index

suspended sentences, enhancing 137 Suspension of Certifcate of Competency in traffc offences 106 technological surveillance 139–140 terminally ill offenders, special considerations for 117–118 TJRC (Truth, Justice, and Reconciliation Committee) 92–93 Toch, H 36 Tomkin, J 48 Townhead, L 57 training of judges 149 transformative impact 36–37 transparency, principles of sentencing 84 Treaty Convention supranational tribunal 13 Truth, Justice, and Reconciliation Committee (TJRC) 92–93 UK (United Kingdom): maternal imprisonment 41; prison statistics 2; re-establishing parental relationships 45; see also England and Wales UN General Assembly Resolution 217 A 11 unborn children 54n111 UNICEF 10; participatory rights 22–23; protection rights 23–26; right to survival and development to one’s full potential 19–22 United Nations Convention on the Rights of the Child (UNCRC) 2, 10–13, 27–29, 31, 53, 130, 135, 156–157; best interests of the child

principle 14–17; non-discrimination principle 13–14; right to life, survival, and development principle 18; right to self-expression 18–19; separation from parent 27 United Nations Human Rights Commission 11–12 United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRs) 53 United States, maternal imprisonment 41 Universal Declaration of Human Rights 11 up tariffed 137 vengeful equity 39 vicarious punishment 114 victimless crimes 38–39 Vienna Convention 13n6 violence: discipline 24; post-election violence (PEV) 92; in prisons 75 Von Hirsch, A 108–109 Walker, N 40, 88, 93, 111–112, 114–115 Wenman (2004) 114 women’s imprisonment, in Kenya 68–71 women’s prisons 69–70 Wright, S 33 Zedner, L 93 Zermatten, J 57 ZH (Tanzania) v Secretary of State for the Home Department 14–16