The Rights of Children Accompanying their Mothers to Prison: A Kenyan Perspective
By Hon. Magistrate Rosemary Onkoba
Introduction
The rights of children accompanying their mothers to prison have received little attention both internationally and nationally. International legal instruments advocate for the welfare of children generally. The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child provide that children are entitled to special measures of protection, care and assistance.[1] However, they do not capture the special circumstances and needs of children who have accompanied their mothers to prison.[2] Nevertheless, the international regime ought to be applauded for setting up the stage for the protection of children globally by establishing a general framework on which state parties can enact specific national laws to protect the children.
The African Region Regime
The African Charter on the Rights and Welfare of the Child dedicates an entire article to address the welfare of children of imprisoned mothers.[3] The article is mother-centered as it seeks to safeguard the welfare of the mother. It prefers the imposition of non-custodial sentences on the mothers. It also outlaws committing them to a death sentence and requires that the mothers be held and confined in special alternative institutions.[4] Importantly, it requires that the mother should not be imprisoned with her child and that convicted breastfeeding mothers be detained in suitable conditions.[5]Unfortunately, it does not confer specific rights to the child. Thus, the regional framework puts little attention on the rights of the children accompanying their mothers to prison.
The Kenyan Perspective
The Kenyan constitutional dispensation underscores the rights of a child and offers children extensive protections. It gives children the right to free and compulsory basic education, basic nutrition and healthcare and protection from abuse and neglect.[6] The constitution requires state organs and public officers to safeguard the best interest of the child when making decisions affecting them.[7] To this extent, the constitutional framework offers sufficient grounds on which the rights of all children including children accompanying their mothers to prison can be established and promoted.
Despite the broad constitutional framework for the protection of children, Kenya does not have special legislation to address the special needs of the children accompanying their mothers to prison. The Kenyan laws are generally evasive on the rights of children accompanying their mothers to prison. They seem to pay more attention to the mother, while being silent on the substantial rights of the child. For instance, courts are not allowed to impose death sentences on expectant offenders. They are instead mandated to convert the sentence to life imprisonment.[8] In addition, the Kenyan policy framework encourages judicial officers to impose non-custodial sentences on lactating or pregnant offenders.[9]
The most the regime does on minors accompanying their mothers in prison is captured under the Prisons Act. The Act creates a framework under which the government can supply the minor with clothing and necessaries.[10] Further, it allows the child to remain in prison until it reaches four years but also creates a window for earlier departure from prison where arrangements for proper care outside prison have been made.[11]
Section 30(4) of the Prisons Act provides that “the infant child of a female prisoner may be received into prison with its mother and may be supplied with clothing and necessaries at public expense.”[12] Regrettably, the wording of this provision does not impose mandatory statutory obligations on the government for the enjoyment of the child. The use of the term ‘may’ in the subsection pegs the enjoyment of the right ultimately at the discretion of the government. This means that the prison department is not legally bound to receive the child to the prison in the first place and to supply it with clothing and necessaries.
In addition, the law does not stipulate the nutritional needs of the child. While the Prisons Act stipulates the kind of food the prisoners are entitled to get, it does not guide the feeding requirements of the child.[13] The framework does not impose on the prison department any obligations with respect to providing food and in some instances, the mother has to share her meals with the child.[14] Some prison institutions compromise their nutritional needs and health because they do not provide age-specific diets.[15] The government acknowledges that the Kenya Prisons Services faces hindrances in enhancing the well-being of children in prisons due to financing challenges.[16]However, there ought to be proper intervention in order to uphold the rights of these children.
Furthermore, the prison management lacks adequate mechanisms to protect the children from mental torture and anguish. In some instances, prison personnel handcuff and shout at the mothers in the presence of their children. This exposes the minors to psychological trauma.[17]
Most prison institutions do not hold the mothers in separate quarters. Consequently, minors accompanying their mothers to prison are exposed to aggressive behavior and toxic language.[18] This causes them immense psychological damage.[19]
In light of the Kenyan constitutional framework on the protection of children, the Prisons Act is arguably unconstitutional to the extent that it attempts to relieve the government of its constitutional obligations to children. However, until such time when the Act is repealed or declared unconstitutional by a competent court, the prison department will continue to expose the children to considerable human rights violations. The continued lack of a law in this area is detrimental to the welfare of the children and their dignity.
The Basic Education Act[20] and the Early Childhood Education Act[21] define basic education to include education offered in early childhood education centres.[22] Given that early childhood education is offered to children of at least 3 years, the state must provide and facilitate the provision of the education.[23]However, the two laws do not expressly refer to children accompanying their mothers to prison. The available evidence demonstrates that the government has abdicated this role. The learning activities of these children have been problematic due to a poor learning environment and a lack of adequate and trained teachers.[24]Thus, the Kenyan regime needs to protect and promote the educational needs of these children concerning the right to free and compulsory primary education.
Recent interventions
It is not all doom and gloom in Kenya. There seems to be a gradual change in approach towards the recognition of the rights of children accompanying their mothers to jail. The change is more manifest in recent legislative interventions, mainly, the Children Act of 2022.[25] The Act recognizes these children as children in need of care and protection.[26] Specifically, the Act pays commendable attention to the well-being of the children by ensuring that courts play a central role in their handling. It empowers judicial officers to address the welfare of the children both at the beginning of the sentence and when the child reaches four years while in prison.[27]The court is now mandated to ensure that in both instances, the child is placed under the care of a fit person or is accommodated in a safe place.[28]
Conclusion
The current prison system has not been wholly upholding the best interest of the child. Basic rights of innocent children accompanying their mothers to jail have usually been violated thereby exposing them to social, psychological and educational challenges. The involvement of the court in handling the well-being of the children is a major win for the children because judicial officers are better placed to determine the best interest of the children.[29] In addition, by throwing the ball at the judicial officer, the Children Act almost certainly guarantees that the child will, upon reaching four years, leave the prison into safe hands.
[1] The Universal Declaration of Human Rights, Article 25 (2); International Covenant on Economic, Social and Cultural Rights (General Assembly resolution 2200A (XXI) of 16 December 1966) Article 10 (3); The Convention on the Rights of the Child (General Assembly res. 44/25 of 20 November 1989) Article 3 and 18.
[2] Ibid.
[3] The African Charter on the Rights and Welfare of the Child, Article 30.
[4] The African Charter on the Rights and Welfare of the Child, Article 30 (a-c, e).
[5] The African Charter on the Rights and Welfare of the Child, Article 30 (d); The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa Article 24 (b)
[6] The Constitution of Kenya, 2010 Article 53 (1) (b-d).
[7] The Constitution of Kenya, 2010 Article 53 (2).
[8] The Penal Code, Chapter 63, Laws of Kenya s 211.
[9] National Council for Law Reporting, The Kenya Gazette, CXVIII (Gazette Notice 2970), The Judicial Service Act (2011): Sentencing Policy Guidelines (2016) 20.39.
[10] The Prisons Act, Chapter 90, Laws of Kenya s 30 (4).
[11] The Prisons Act, Chapter 90, Laws of Kenya s 30 (4).
[12] The Prisons Act, Chapter 90, Laws of Kenya s 30 (4).
[13] The Prisons Act, Chapter 90, Laws of Kenya s 49 (1), First Schedule.
[14] Alice Macharia, ‘Analysis of the Rights of Children Accompanying their Incarcerated Mothers in Kenya Prisons’ (2013) (LL.M Thesis, 2013, University of Nairobi) 43.
[15] Mumbi Muguongo, ‘Children in prison with their mothers – not their crime yet their sentence’ The Standard (Nairobi, 17 June 2021) 5.
[16] National Council for Law Reporting, The Kenya Gazette, CXVIII (Gazette Notice 2970), The Judicial Service Act (2011): Sentencing Policy Guidelines (2016) 20.38.
[17] Jane Kositany Cheruiyot, ‘An Assessment of the Challenges of Children in Prison with their Mothers: A Case of
Langata Women Maximum Prison’ (2019) 1 (1) Interdisciplinary Journal on the African Child 1.
[18] Mumbi Muguongo, ‘Children in prison with their mothers – not their crime yet their sentence’ The Standard (Nairobi, 17 June 2021) 5.
[19] John Muthuri, ‘Mothers in prison deserve better conditions to bring up children’ (ICJ, May 2019,) <https://icj-kenya.org/news/mothers-in-prison-deserve-better-conditions-to-bring-up-children/>accessed 27 June 2023.
[20] The Basic Education Act, No. 14 of 2013, Laws of Kenya.
[21] The Early Childhood Education Act, No. 3 of 2021.
[22] The Basic Education Act, No. 14 of 2013, s 2.
[23] Government of Kenya, National Early Childhood Development Policy Framework (Ministry Education, 2006) 7.
[24] Tom Shavisa and Collins Gaunya, ‘Factors Affecting the Education of Children Accompanying Their Mothers to Prison: A Case of Kakamega and Kisumu Women Prisons, Kenya’ (2015) 5 (21) Developing Country Studies 19.
[25] The Children Act, No. 29 of 2022 Laws of Kenya.
[26] The Children Act, No. 29 of 2022 Laws of Kenya, s 144 (f).
[27] The Children Act, No. 29 of 2022 Laws of Kenya, s 150 (2) (j).
[28] The Children Act, No. 29 of 2022 Laws of Kenya, s 150 (2) (j).
[29] Aron Degol and Shimelis Dinku, ‘Notes on the Principle “Best Interest of the Child”’ (2011) 5 (2) Mizan Law Review 325.