Author wants radical shift to honour rights of children and mothers in jail

A probation officer on a routine visit to a prison decides one day to carry some boiled eggs and other foodstuff to one of the women prisoners under her assessment. During the interviews the officer unpacks her bag and gives an egg to a child accompanying the offender.

As she does so, she asks him if he knew what it is. Excited at her generosity, and to her dismay, the child states, matter-of-factly, that the egg was the moon, stunning the inquirer beyond words.

On casting a bewildered look at the mother, the PO learns that the three-year-old child had never seen an egg, and perhaps many other household stuff that the rest of us take for granted. He was born in prison while his mother served her custodial sentence and had, therefore, never stepped out of the facility.

According to the woman, the child may have confused the egg for the moon that he often saw through the ventilation openings in his mother’s cell at night. In short, the cell has been the boy’s only home.

This jolted the probation officer into the stark reality and plight of children born to women serving custodial sentences and those accompanying their mothers or caregivers to prison. Yet they are in jail for no crimes of their own.

That probation officer is Dr Alice Macharia, currently a senior magistrate and passionate defender of the rights and interests of children living with incarcerated mothers as well as those left home. She is currently attached to the Education and Curriculum Development section at the Judiciary Training Institute (JTI) in Karen.

The incident cited above happened about 12 years ago when she was a probation officer working in Thika district. It is captured in the Foreword of her recently published book, Rights of the Child, Mothers and sentencing: The Case of Kenya.

The book highlights the suffering that young children undergo when their caregivers are sent to jail. It examines the institutional as well as the legal lapses that engender continued violations of the children’s rights and recommends ways that the government and relevant agencies can address the matter.

Dr. Macharia has worked in the three major arms of the justice system. She joined the Judiciary in 2012, after serving in the Attorney General’s office as a state counsel seconded to the Ministry of Home Affairs as a legal officer. It was while serving as a probation officer that she was confronted with the predicament of children accompanying their mothers in prison.

She argues that while all babies depend on the care of others for their survival and development, those born to women during their imprisonment or those accompanying their convicted mothers into prison are particularly vulnerable. Research has shown that children whose parents are imprisoned are more likely to develop numerous health and behavioural challenges.

The author says that in 2015, an estimated 4,254 women were held in Kenyan prisons with at least 380 children accompanying their incarcerated mothers into prison.

In the book, published in the UK and USA by Routledge, faults governing bodies across the globe of failing to provide clear legal guidelines on whether the child should be separated from the incarcerated mother/care giver or allowed to accompany her into prison. 

Suffering of the children

The author observes that neither of the choices above is any better for the affected children. Whereas only children aged four years and below can accompany their mothers into prison, those left at home still suffer the effects of the absent caregiver. 

Dr. Machria says that during her home visits, she witnessed abject suffering of the children left behind by jailed mothers. Some of them end up homeless in the streets while others languish in their destitute homes with no adult to care for them. 

“This experience,” she says, “made me extremely cautious in sending pregnant women and mothers accompanied by dependent children into custody.”

She accuses States of not specifically tasking the Judiciary with upholding the autonomy of the child and protecting their rights and interests when sentencing the mother to a custodial penalty.

The author, who wrote the book during her doctoral studies at the King’s College London (2019) under the Commonwealth Scholarship, offers a wide range of recommendations to remedy the situation. From recognition of the children’s presence in court and a change of sentencing guidelines to protect their rights to expansion of Presidential Power of Mercy to include pregnant and nursing mothers in prison.

Alternative sentencing practices

Most of the rights possessed by children of imprisoned mothers, she contends, routinely fall through the legal cracks in the criminal justice process. Hence, the child’s presence is often not mandatorily acknowledged in judicial reasoning and sentencing decisions.

She argues that the states should prioritise the rights of the innocent but dependent children of incarcerated women rather than merely focusing on punishing their convicted mothers, unless those mothers pose a risk of serious harm to the public.

Noting that most offences by women stem from situations of poverty, Dr. Macharia calls for the leveraging of provisions Presidential Power of mercy to provide a measure of last resort in removing the children being held in custody and the different transformative approaches to reduce women’s imprisonment, thereby indirectly alleviating the children’s predicament.

Further, the author urges countries and stakeholders in the justice system to explore available options to custodial sentencing and even borrow leaf from alternative sentencing practices found in other jurisdictions internationally.

Dr. Macharia says she was egged-on to write the book by the late Mr Erick Ogwang', a former magistrate who was equally passionate about prisoners’ children. Mr Ogwang’ supervised her Masters degree thesis in 2012 and urged the author to pursue the study 'so as to make the world aware of these children’s predicament and therefore ‘do something about it.’

Published by Routledge Publishers UK under the Taylor and Francis Publishers, the book is available at Amazon, https://www.routledge.com/Rights-of-the-Child-Mothers-and-Sentencing-The-Case-of-Kenya/Macharia/p/book/9780367698010

Mr. Kibet is an editor in Nairobi. [email protected]