Rights of the child, mothers and sentencing: The case of Kenya By Alice Wambui Macharia, London: Routledge. 2021. pp. 192. £130.00 (hbk); £38.99 (pbk); £38.99 (ebk). ISBN: 9780367698010; 9780367698027; 9781003143291

Abstract

Most countries fail specifically to task the judiciary with upholding the autonomy of the child and protecting children's rights and interests when sentencing a mother to a custodial penalty. Author and judge Alice Macharia argues that the focus of criminal courts should be widened to include the needs and the welfare of a woman's dependent children as a mandatory legal requirement.

In this reworking of her doctoral thesis, Judge Macharia debates that sentencing without consideration for the impact on children punishes them for their mother's crimes, with consequences for the children's future well-being. Macharia discusses the conflicting obligations for judges both to sanction the offending and to uphold the rights owed to children to protect their best interest, describing these as two competing duties of care: the duty to protect the public from crime; and the duty to protect children's rights. However, she argues that imprisoning children with their mothers is a form of discrimination against the child – an argument based on Article 2 of the UN Convention on the Rights of the Child (UNCRC) and consistent with the landmark South African Constitutional Court case, S v. M ([2007] ZACC 18) in which Justice Albie Sachs stated that children ‘… cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them’ (para. 18).

The book describes that the practice in most jurisdictions globally is for children to remain invisible and unheard, irrespective of a country's level of development, and therefore that the goodwill of sentencers to protect the rights of the child is not enough, with the author arguing: '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’ (p.64). Macharia argues that consideration of the impact on children when a mother is sentenced is not a new concept in Kenya, as the state already commutes the death penalty to life imprisonment if a woman is pregnant. The book argues powerfully for the need to take this consideration further.

Throughout, Macharia's book argues that the penal environment is designed to punish, meanwhile a child has no committal warrant and has not been convicted of anything. Without such a warrant: 'he or she is administratively invisible’ (p.74). This results in a lack of co-ordination and communication between agencies and even institutional neglect such as there being no allocation of additional food to support children living in prison with their mothers.

The book states that: ‘… the criminal process cannot assume that it has moral authority to ignore the devastating impact its decisions have on innocent children’ (p.28). As children are not culpable for their mother's offence, the author argues that welfare and best interest principles should carry greater weight in shaping the duty of the state to protect these children from harm, saying: ‘… the dependent children of convicted caregivers are equal holders of rights, and the state should prioritise their protection and wellbeing over the impetus to punish their mothers’ (pp.86-87).

Alongside children in prison with their mothers, the book also addresses the fact that separation of children and parents through imprisonment makes children especially vulnerable to breaches of their rights under the UNCRC and increases their risk of permanent adoption away from their family. Macharia argues that: ‘… criminal courts 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’ (p.81). With few judges trained in their responsibilities under the UNCRC and how this relates to their decisions in adult criminal courts, children face imminent breach of their rights from the moment their parent enters the criminal justice system. Macharia notes that many children in Kenya end up homeless after their mothers entered prison, and that imprisoning mothers rarely achieved the goal of rehabilitation but instead increased the risk of future offending by both the mother and the children.

The book has its flaws: for example, it notes the lack of internationally adopted guidelines to protect the rights of young children accompanying their incarcerated mothers, but, as a book published in 2021, it fails to recognise crucial developments such as adoption of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules 2010). It also quotes sources that pre-date UN Committee on the Rights of the Child's Day of General Discussion in 2011 that focused on this issue and instead refers to lack of examination by international communities and lack of standards. However, it later goes on to quote sources that summarised the recommendations from the Day of General Discussion, suggesting that the author must be aware of the subsequent developments.

Similarly, the book comments about the lack of data gathered about the children with incarcerated parents, then fails to acknowledge Rule 7f of the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), which requires collection of information about dependents when someone enters prison. In this case, however, Macharia makes the crucial distinction regarding data collection about children entering prisons with their mothers. This raises an interesting point: with no official record of a child's existence in secure facilities, as was the case in Kenya when the book was published, this means that if a child dies in prison, there is no official oversight, documentation of, or responsibility for the post-mortem or disposal of the body, and no records detailing the numbers and causes of deaths of children in custody. At that time, prisons in Kenya had no way of verifying the accuracy of figures regarding children accompanying mothers into prison in Kenya, and ‘… the children she leaves behind in the community are similarly eclipsed by the criminal justice system’ (p.76).

A particularly interesting and unique aspect of the book is its contextualisation of penal law and practice in Kenya. For example, Indigenous traditional forms of dispute resolution were mostly based on principles of restorative justice, and offences that were accidental (the majority) were treated with high mitigation and leniency. However, offences deemed ‘deliberate’ were a source of stigma against the whole family; as the author notes: ‘once proven by the 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’ (p.67), including responsibility for payment of fines but also for implementation of even the most serious punishments such as banishment or death, often by horrific means.

Under Kenyan sentencing guidelines, the first objective is retribution (in contrast to other jurisdictions such as Germany, whose Prison Act prioritises rehabilitation). Any commitment to rehabilitation in Kenya rests heavily on the avoidance of custodial penalties; equally, restorative justice approaches are more effective when people remain in the community to provide compensation. Macharia comments that aims such as deterrence and denunciation can conflict with the aims of rehabilitation and restorative justice. She also notes concern that the sentencing guidelines noting that punishment should be proportionate to the offence may work against any consideration of children's rights and interests.

The background the book provides on sentencing theory offers a more familiar context. Judge Macharia summarises such principles, saying: ‘what is clear … 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’ (p.115).

In her personal experience as a judge, the author finds that women in Kenya often plead guilty from the outset, especially on Fridays, for fear of leaving their children unattended over the weekend. The incentive of reduction of sentence can also increase the likelihood of guilty plea, as can lack of robust legal representation. She therefore demonstrates that caring responsibilities therefore have a material impact on the outcome of a case, even before the input from the judge.

Protections in Kenyan sentencing guidelines exist for the sentencing of children, but protection for children of sentenced mothers is not as robust; the guidelines do allow for judges to consider caring responsibilities but include no legal mandate for this. Section 20 of the Kenyan Sentencing Guidelines does discuss the sentencing of mothers, but again, protections mostly relate to children who offend. Macharia notes that: ‘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’ (p.129).

In practice, this does not happen. The author reports that ‘… 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’ (p.131). In her view: ‘reform to remove children from prison with their mothers should therefore become an integral part of this broader movement in recognising children's rights’ (p.147). She notes that the absence of accountability mechanisms for children accompanying their mothers in court poses a major challenge to the reforms she proposes in her book.

In most jurisdictions in practice, judges focus almost entirely on the offence and on the previous criminal record. Macharia's stated goal in the book was, by contrast, to seek ‘acknowledgement of the child as an equal holder of human rights and to procedurally locate accountability for the child's wellbeing with the judiciary through 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’ (p.153). Throughout the book, Macharia emphasises that: ‘… 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’ (p.153). She also repeats the need to make these children 'administratively visible’ (p.154) to ensure their acknowledgment and, consequently, their protection. She grapples with the problem of sentencers’ lack of confidence in the punitive value of non-custodial sentences, addressing the perception head-on that taking children's needs into account in the sentencing of a parent provides them with a ‘get out of jail free card’. Judge Macharia asserts that: ‘… 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’ (p.156).

The power of the book is evident from the subsequent developments in Kenyan law, policy and practice. Since its publication in 2021, Kenya has adopted a new Children's Act 2022, which came into force at the end of July 2022. While not incorporated into the final version, the penultimate draft included sections on caregiving responsibilities and provision of counselling for children imprisoned with their mothers. The book has been adopted by the Children Special Taskforce as a guide for the sentencing of mothers and inspired a Presidential Directive to create a Children's Policy for prisons; Judge Macharia has been able to use it for the training of all judges and magistrates and is now working on a policy for the Kenyan Government's Children's Department.

Some aspects of the book would benefit from amendment in a future edition. The chapter on sentencing guidelines is very long compared with the other chapters and tends more towards description than analysis. On an even more pedantic note, the book contains some typographical errors, and the referencing is inconsistent (e.g., sometimes no footnote is included; some sources are very old; some references are incorrect; some citations refer to the editor rather than to the author; and some references are missing from the bibliography entirely). The framing of the language also needs to be updated, shifting to ‘people first’ language (people who offend, people with substance misuse issues) and away from terms such as ‘offender’ and ‘drug addict’. Reference to ‘alternatives to imprisonment’ also places prison as the default penalty rather than as the exception.

The book's discourse is not altogether consistent, for example in its argument that treating mothers with dependent children differently does not constitute gender bias or violate the principle of proportionality, while going on to refer to caregivers instead. It refers to the ‘transmission of inter-generational behaviour’ (p.43) and the fear that a child ‘may inherit their mother's traits and follow her footsteps into crime, becoming a bad influence on the family and a disgrace to the community’ (p.79), attributing the increased risk of this to the weakness or absence of other family relationships rather than to the very real impact on housing, education, (increased) poverty, trust, stability, caring arrangements, and so on, that imprisonment of a parent can have on any children left behind.

The publication of this book coincides with similar works on the sentencing of mothers and in-depth discussions of the rights of children with imprisoned parents. However, its unusual perspective from a practising judge and the specific legal and cultural context of a non-Western country sets it apart and adds notably to the literature in this field. The author has recently been voted as board member to the International Coalition for Children with Incarcerated Parents, and Rights of the child, mothers and sentencing: The case of Kenya has scope to influence these discussions globally.

In sum, Macharia's book argues powerfully for change in judicial responsibility and approach to the sentencing of mothers. Its passionate and practice-based perspective creates a compelling narrative that is already making a real impact on the protection and realisation of children's rights in Kenya when a mother is caught up in the criminal justice system.