CUSTODIAL RULES, SENTENCING, AND ALTERNATIVE SENTENCING REGIME
Part XIII (sections 189-193) of the Children’s Act provides courts with an array of alternative sentences for a trial court to impose for children found to have committed a crime. These include orders committing children to the care of parents, families, or charitable institutions; a discharge with or without sureties; a term served in rehabilitation schools (for children between the ages of 10 and 15 years); specialized children’s institutions, termed “borstal” institutions (for children over 16 years); educational and vocational schools; probation; community service; and the payment of monetary fines. In keeping with the prohibition under the CRC and the African Children’s Charter, the Children’s Act prohibits the use of the death penalty for children; Kenyan law also prohibits the use of corporal punishment. The act outlaws any form of detention in a prison or “detention camp.” The prohibition of any form of imprisonment goes further than the provisions of the CRC (Article 37) and the African Children’s Charter (Article 17), both of which restrict the use of imprisonment while providing for the absolute prohibition of the most extreme form of imprisonment—life imprisonment without parole.
Yet in practice, Kenyan courts have tended to lean in favor of imposing the death penalty and prison sentences on child offenders for capital and other offenses (Ongoya 2007). Relatively high numbers of children can be found among the country’s prison population: the number of prison inmates below 18 years of age (with a majority aged 16-17 years) increased from 2570 in 2013 to 3455 (about 1.3 % of the total inmate population) in 2014 (Kenya National Bureau of Statistics 2015). In part, the use of imprisonment for children in cases deemed as serious offending (and which are punishable by terms in prison for adults), despite the prohibition in law, reflects a crime control attitude and a retributive goal of the penal system. The tendency by courts to resort to prison custodial sentences also owes to the lack of alternative child-friendly facilities. Even in the wake of the new legal regime, which allows for the imposition of custodial sentences to be served by children in rehabilitation and other facilities (such as “borstal” institutions), the country’s facilities for these purposes remain few and far between. There are 11 rehabilitation schools (hosting an average of 70 children each) and four probation hostels in the country—all of which predate the new legislation. The full extent to which the conditions and programs that children undergo within these institutions comply with their legal rights is not clear due to the absence of dedicated research on this issue.