Rights of Children of Imprisoned Mothers: Towards Non-custodial Sentencing for Women Offenders in Kenya

Abstract

This study is premised on the universal understanding that in any society, children remain the most vulnerable category and in dire need of care and protection from parents, community and the government in order to survive. This is further qualified by the understanding that children have the right to parental care and guidance from both parents. At times however, children find themselves exposed to the harsh realities of the criminal justice whenever they are subjected to spending time in prison with their incarcerated mothers or left behind by mothers serving custodial sentences. As such, children of incarcerated primary caregivers may be reduced to ultimate collateral victims of crime and the criminal justice system; not guilty but nevertheless not heard or seen. Their opinions are muzzled by stigma associated with imprisonment and lack of clear legal framework and guidelines to safeguard their interests.1 This research has demonstrated that there is a worrying trend characterized by failure to implement the rights of children when sentencing primary caregivers. This is demonstrated in instances where primary caregivers in conflict with the law and on minor offences are awarded custodial sentencing without considering the welfare of dependent children. Further it is seen when primary caregivers are not accorded the right to identify alternative caregivers before commencing their sentences and lastly whereby there is no clear policy to ensure children of imprisoned caregivers are not neglected. The study is structured so as to answer the major research question on the best way to accord primary caregivers special consideration during sentencing so as to ensure the right of children to parental care from both parents is considered and upheld. Further, the study answers the question on how primary caregivers about to serve custodial sentences can accorded enough time to identify suitable alternative caregivers to their children. In doing so, the study analyses international regulatory framework; including conventions, protocols and case law touching on modalities of safeguarding the rights of children during sentencing of primary caregivers. Subsequent chapters examine the existing regulatory framework in Kenya; most notably the Children’s Act, Sentencing policy and guidelines touching on the welfare of children. Further, it 1Kathleen Marshall, ‘Not Seen, Not Heard, Not Guilty: The Rights and Status of the Children of Prisoners in Scotland’ <http://dera.ioe.ac.uk/9399/2/Not%20Seen%20Not%20Heard%20Not%20Guilty%20compress.pdf> accessed 25 November 2015.

seeks to analyze the adequacy of protection measures put in place for the implementation of child friendly sentencing practices as guaranteed under the Act and examine what guides courts in determining the suitable sentences for primary caregivers. This shall be in comparison to best practices in other jurisdictions most notably in England and Wales in an attempt to identify the existing gaps. Lastly, the final part of the study discusses the findings from the comparative analysis and field study then finally workable recommendations on ensuring that non-custodial sentencing of primary caregivers is by default interpreted by courts and prosecution as an action to the best interest of the child. The report further makes specific recommendations to key criminal justice actors with the responsibility of making decisions about children. These include police, prosecution department, judiciary and the prisons.