Non Custodial sentences as an avenue to de congest Kenyan Prisons

The Punishment of Probation - A Proposed Solution to the Prison Overcrowding G34/2612/2010


Contents
INTEREST STATEMENT 2
Prison overcrowding – negative effects on prison inmates 5
Alternatives to Imprisonment 7
Fines and Compensation Orders 7
Conditional (or Early) Release 8
FIELD WORK REPORT 9
Pre Bail Report. 12
Interviewing offenders who have been put on probation and community service orders on their suitability and the best areas where they can be posted – offender assessment. 14
Pre-Sanction Report 14
Community Service Reports 16
Assigning supervisors to the offenders to help in carrying out the orders of the court. 17
vacancies at probation hostels 19
children who have been arrested while loitering in the streets 20
Challenges that the Probation and Aftercare Department face in Kenya 21
Conclusion 22




INTEREST STATEMENT
Probation service is a Government agency involved in the administration of criminal justice specifically charged with the responsibility of implementing supervised non-custodial correctional services within the community
Kenya Prisons Service is headed by the commissioner of prisons. It derives its mandate from the Prisons Act, (Cap90) Borstal Act (Cap 92) and Public Service Commission Act of 2012.
Kenya Prisons Service functions are to contain and keep offenders in safe custody, rehabilitate and reform offenders, facilitate administration of justice and promote prisoners opportunities for social re-integration. To decongest the prisons, non-custodial sentences such as community service are used by courts as alternative to jail terms.
The population within prison is increasing leading to majority of prison overcrowding this me. This is leading to re-offending as offenders are not able to receive individual rehabilitation because there are too many offenders to rehabilitate. As this becomes more of a problem in today's society the government is coming up with new punishments which will help to reduce the overcrowding within the prisons. One of these new punishments is probation, this is a sentence which is been imposed by court and given to the offender either after the offender has served their sentence in prison or not at all. Ideally probation is supposed to give the offender a specialized treatment by making him work in a place where he will be taken care of and given individualized attention, while at it, the offender is accorded gainful skills that will later be used by them to become useful in the society and also to stop them from re offending.
Probation services also provide an after-care service for ex-Borstal inmates, those who have psychological problems and to supervise the reintegration of violent offenders. There also exist probation hostels, in which persons on probation must sleep at night but are free to go to work during the day. There are also two probation day-care crime prevention centres in the country.
The Probation and After Care service also provides a bail information programme through which the courts are provided with information regarding the community ties of the accused person. The Kenyan Constitution 2010 outlines the rights of an accused person and one of them includes the right to be released on bail or bond on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. The constitution further envisages that there will be a requirement not to hold offenders, whose offences are punishable by fines of imprisonment of less than 6 months, in confinement. This is also seen as the constitutional bid to decongest the prisons as initially all these class of offenders never had a legislative framework to guarantee them bail or bond, leading to them sitting in prison and coupled by the backlog of cases in the judiciary a while ago, things were not any better.
Also still under the probation department in Kenya is the Community Service order that is an alternative to custody and offers offenders the chance to make reparation for their offences by undertaking unpaid work for the benefit of the community. By and large this sentence also aims at decongesting our prisons in order to have relatively manageable number in the correctional facilities.
According to statistics, the capacity of Kenyan prisons is about 22,000 inmates but currently the prisons facilities are choked to the tune of over 53,000 inmates- that is not any good news to a country that still has issues of economic growth to grapple with. It is in the public interest that the prisons be decongested to cut down on the taxpayer's money that could have been channeled to other developmental projects, in managing correctional facilities. Some people may argue that prisons form an integral part in any countries economy because the people who are behind bars are the ones that will make up the workforce and the consumer base for the products that have been manufactured in the country, on the contrary however, if we can get a cheaper option of managing these people and at the end of the day we still have the same end result- reform, then we will be able to have achieved an economic milestone.


Prison overcrowding – negative effects on prison inmates
Problems and sufferings of jail inmates - Overcrowded prisons are not only uncomfortable but also destructive as prisoners who come out carry the consequences of their bad experiences to the free world after they are released. Overcrowding has several negative effects on the prison inmates. Crowding is only indirectly related to mere numbers or density of people. It is possible to feel crowded in the presence of few people, or not crowded in the presence of many. Prisons are characterized by restrictions and limitations. The prison environment generally includes various factors that can adversely affect physical and mental health of inmates. In crowded prisons where struggles and competitions prevail inmates may move to anti-social behavior as their already exists the problems causes by idleness, boredom and lack of personal control. Overcrowded prisons make the prisoners develop various negative characters that make them do more violent crimes when they come out of prison. Overcrowding has three different types of negative effects on the inmates. Overcrowding decreases the resources available for each and every facility. They will be deprived of rehabilitative programs like academic activities and vocational training. Recreational activities and self-improvement programs are not possible in an overcrowded environment. The lack of work makes prisoners idle. This would lead them to frustration and disruptive behavior.
Moreover overcrowding will result in the general scarcity of resources. For example availability of library books, washroom availability, television lounge seating and shortage of recreational materials. This lack of consequences can have various negative consequences on inmates. When prisoners are denied resources, they are frustrated. Competition among inmates for limited resources also results in violence, aggression and frustration. The next negative effect caused by overcrowding on inmates is behavioral problems. Crowded prison setting can increase stress, fear and tensions in inmates. Inmates find it difficult to cope with stress. This makes them depressed and aggressive. Overcrowding will negatively influence the interaction and social relations of the inmate. Crowded environment results in social withdrawal, competition of resources and less cooperation among the inmates.

Even though prison overcrowding is not the only reason for the dangerous conditions and the abuse that prevail in many of the prisons, it is one of the major problems faced by prisons. Prison overcrowding has various negative influences in the prison inmates. Overcrowded prisons harbor illness and unhealthy environment. Moreover it also makes the inmates struggle for resources. This struggles and competitions further criminalize the inmates. Prisoners thus are not benefited through this confinement if the prisons are overcrowded. Prisons are supposed to provide a healthy environment for the prisoners where they get a chance to regret, repent and renew them for the free world that welcomes them after the confinement. Overcrowded prisons do not give this environment. Overcrowded prisons are not only uncomfortable but also destructive as prisoners who come out carry the consequences of their bad experiences to the free world after they are released.
Most people leaving prison re-enter society with a drug addiction, few qualifications, and no money and return to the lives within which their crime(s) took place in the first instance. Others will have lost local connections to their family, their job, and their home. In situations such as these the likelihood of repeat offending is high. Acknowledging this, and the fact that the practice of sending individuals to prison frequently leaves the needs of the victims, the offenders themselves, and their respective communities unmet,

Alternatives to Imprisonment
Aside from probation and Community Service Orders, the use of different alternatives to imprisonment varies throughout Kenya.
Fines and Compensation Orders
Fines are a monetary sanction imposed upon a convicted offender which can vary according to
where the crime was committed, the gravity of the crime and the economic status of the convicted individual (when structured fines are used). Compensation orders (CO) are where money is paid by an offender to a victim directly.
Fines are most frequently imposed for minor offences. Generally, violent crimes (including sexual
Violence, example includes indecent act with a child or adult) are not tackled by imposing a fine as a principal sentence. Automatic fines, such as those for motoring offences and parking tickets, are criticized as they do not take into consideration the economic status of the offender.
There is no official data or formal data on the effectiveness of fines and compensation.
Conditional (or Early) Release
A conditional release can be granted to imprisoned offenders who have not completed the full term
of their prison sentence or those whose offences are minor and therefore there is no need for imprisonment. The conditional release imposes regulations on the offender's activities
and who he/she is in contact with. If an offender fails to meet these conditions, he/she may be returned to prison.
For conditional release to be as effective as possible there is a need for the community to beinvolved. It is important that vocational and educational training as well as employment should be made available to offenders (and ex-offenders) on conditional release.
FIELD WORK REPORT
The Probation and Aftercare Services in Kenya is under the ministry of Interior coordination in Kenya headed by Hon Olelenku. The diagram below represents the organizational structures hierarchy in the department.

Fig. 1. Administrative structure of Probation and Aftercare services.
Source:http://www.probation.go.ke/index.php/10-articles/brief-slider/9 newadministrative-strucutre. (Last viewed on 7th Dec. 2013)
My attachment journey started by meeting the National Director whose office is localized at Reinsurance Plaza 11th Floor in Nairobi. With the passion I had, I armed myself with the recommendation letter and my impressive CV. Being a busy person, at the Director's office reception desk, I had to wait for about six hours before gaining access to him, as I was not alone, other probation officers had also come to give their work related reports, I struck a conversation with one of them who was whining about the effectiveness of the probation and aftercare services in Kenya.
One of the things that struck me was how the supervisors were misusing the opportunity to make the offenders work in areas that were not relevant and out of the offenders scope, there was this specific example he gave of how an offender who had been posted to undertake a Community Service Order in Nakuru was now reduced to a manual labourer in the supervisor's maize farm. That shocked me as much, my take was that offenders should be providing services which are of benefit to the larger community circle but not that individuals be the ones that are benefiting from such labour.
I had to ask questions and seek his opinion about the effectiveness of Probation and aftercare services in terms of decongesting prisons in Kenya- after all that was my driving passion. This seemed to him as an interesting area which he also concurred with me that needed an in-depth study. We talked about how there could be a decongestion policy and how the probation and after care services would be of help.
Later on I was sited across the table, in front of me was the Director himself, after a few chitchats, he apologized for keeping me for long and our long discussion ended in him assigning me to work at the Milimani Law Courts probation department, which included also The City Court, their offices were located at Nyayo house in 18th floor, he recommended me and I left to my new work station, where I would work for the next three weeks.
My first day at my work station saw me get introduced and to be familiar to the staff at the offices, I was assigned to a Probation Officer known as Mr David Ikimat who hails from Turkana County. He took me round the place and sat me down and gave me the general areas that we would be working on. They included:
Interviewing offenders to assess their economic status so as to write a pre-bail report addressed to the court.
Actual presentation of the reports to court
Interviewing offenders who have been put on probation and community service orders on their suitability and the best areas where they can be posted
Assigning supervisors to the offenders to help in carrying out the orders of the court.
Finding out whether there are vacancies at probation hostels so as to place offenders who may have been put on probation or community service orders and their families or the victims of such offences are still hostile and can inflict bodily harm unto them.
Interviewing children who have been arrested while loitering in the streets so as to get their social and hence, family backgrounds.
Pre Bail Report.
One of the places that the probation has ventured on is in the area of pre-bail reports. The Probations and Aftercare Service Department is calling for policy guidelines to promote use of pre- bail reports by the courts. A pre-bail report is a social inquiry report written through information generated about the background and community ties of an accused person. The purpose of such a report is to provide as much verified information as possible to the court about the accused that will help make a rational decision on bail terms. Such a report is used to assess the likelihood of an accused person appearing in court. Although the practice of providing courts with pre bail reports, upon request, was introduced in 2009, the system is still not regulated by law, which means courts use such reports at their discretion. The push for use of pre bail reports comes when courts are raising the red flag over an increase in the number of accused persons jumping bail; majority of the public still doesn't understand how the bail system works.
Part of my engagement in the probation department was to interview offenders on remand and whose cases had been considered for bail so as to establish whether they really were eligible to be given bail, I specifically headed to Industrial Area GK Prison for this assignment. The situation in the Prisons are not a pleasant experience, much as the former ministry of Home Affairs made them habitable, there is still a lot to be improved on in terms of space. I interviewed specifically three offenders who were charged with two counts of kidnapping with intent to confine, contrary to section 259 of the Penal Code. One of the offenders cried about the wardens not being able to offer personal attention because in his opinion they were too many.
Several factors are considered when preparing a pre bail report, including whether an accused person will appear in court. This may be linked to a person's background and community ties, including any previous failures to appear in court or whether he has a fixed abode and relatives that can trace him if he disappears. An accused person's economic means, circumstances under which an offence was committed, including its seriousness and severity of probable penalty, the community's attitude towards the offence, and whether possible release of an accused poses any danger to the community or victim, are also factored. Capital offences like murder and robbery with violence — that are punishable by death — however, present a unique challenge because such penalties are viewed as 'incentives' that can push one to abscond if granted bail. On the other hand, 'minor offences' for which bail should ordinarily be granted, such as creating a disturbance, threatening violence and causing a breach of peace, could sometimes escalate, forcing a court to deny bail.
The above experience shows how embracing pre bail reports can help in decongesting the prisons so that the wardens can only concentrate on the people that have already been convicted and to give them personalized attention to ensure that they are churned out as responsible members of the society- through that, the law shall have achieved its objective of rehabilitation, restorative justice and deterrence.
However as I noted in my field experience, a potential drawback of pre bail reports, however, is that they can be prejudicial to the accused person, for instance where the community deems one 'unreliable'. There are also other challenges occasioned by the increasingly influential role played by probation officers. This has seen some accused persons and their relatives offering bribes to influence contents of bail reports. Besides budgetary constraints and shortage of personnel in the probations department, getting information on an accused person, especially in big cities and towns may be difficult as some of their relatives were practically not traceable.

Interviewing offenders who have been put on probation and community service orders on their suitability and the best areas where they can be posted – offender assessment.
Pre-Sanction Report
Part of my assignment was to interview offenders who had been committed to probation and Community Service Order, and perhaps their family in the course of preparing their assessment report. Initially the offender was to be intervened in the court cells; afterwards we would visit the offender at home. We would sometimes, with appropriate permission, talk with others who know the offender. These included for example, teachers or employers. Our job was to make an assessment of the risk posed of re-offending. Among the areas considered in this are:
The seriousness of the offence
Offender's attitude to the offence
Why the offender committed the offence
Empathy towards the victim/s involved
Areas in the life of the offender where support and assistance may be required, such as drugs and homelessness.
The application of a risk assessment instrument is also applied.
Having completed the assessment, the report is submitted to the Court outlining the key areas relevant to the particular person. Where appropriate the report may also contain a recommendation in relation to supervision in the community. Once the court has consulted the report, a decision will be made, and a sanction imposed. There are a range of options available to the Court including:
A probation order
Adjournment on supervision for a further progress report
Fine Imprisonment
Part –Suspended sentence (with or without probation supervision)
Community Service Reports
Instead of a prison sentence, convicted offenders may be given the opportunity to perform unpaid work for the community. The legislation for Community Service Orders allows the Judge/magistrate to sentence a convicted offender two to six hours a day.

The offender must be 18 years or over to be considered and any order made must be completed within a year. The shortest time is one day.
Community Service is a direct alternative to a prison sentence and will only be considered by the magistrate if a custodial sentence has first been considered.
The magistrate will ask the Probation Service to complete an assessment as to whether the offender is suitable or not to do community service, and state whether there is work available to be completed. We would then interview and assess the offender in preparing the report. The magistrate will specify the sentence to be served if the offender fails to complete the order. The number of hours per week to be worked is agreed with the Probation Officer.
It is the responsibility of the offender to complete the community service ordered. The Probation Officer is responsible for informing the court of the successful completion of the order or for bringing the case back to court for any failure by the offender to complete the order.
Assigning supervisors to the offenders to help in carrying out the orders of the court.
Someone who is placed on probation will have to keep regular contact with their supervising probation officer and comply with all conditions of the probation order. It is only through this way that at the end of the period, the offender shall have been able to be a law abiding citizen assuming that they were willing and committed to change. During the supervision programme, offenders are helped to identify the cause of their offending behaviour and ways of avoiding it happening again. The supervising officer will visit the offender at home and may involve family members, if they feel this will assist the offender avoid further trouble. The offender will also meet the supervising officer at their office.
Offenders may be asked to participate in a group work programme. Programmes look at issues such as:
substance misuse;
anger management;
Offending behaviour; and
The development of social skills.

We would try to get supervisors for the offenders that had been committed to CSO. Most of the supervisors, for easier management would be the people under whose institutions the offenders worked, for examples head teachers of primary schools and the chiefs in the chiefs' camps. Concerns have always been raised in respect to the quality of the supervision and this has seen the offenders serve actual for a shorter time. However in probation department, there has been a consistency because most of these offenders are committed to probation hostels and are rather managed there with people who have the requisite qualifications, therefore it goes that they are better supervisors than the other ones who are accorded the responsibility of supervising while still undertaking their official responsibilities.
It is only when the supervision of the offenders is a success that we can say that doing away with the crowd in prisons is achievable. We have to continue noting the way it is imported for the offenders in the society to be integrated and also in order for them to stop re- offending. Along with assessing risk to public safety and re-offending, probation supervision strategies incorporate individual factors, along with general and specific response considerations (responsivity), including mental health issues, learning disabilities, victimization, parenting and family matters, gender and cultural factors, transportation challenges, access to services and community resources, and other identified issues or challenges.
While there was general agreement that conditions of supervision in court orders require enforcement, there was also agreement that failure to limit conditions to a plausible few simply sets offenders up for violation, which might be deemed the offender's failure, but might be understood as a failure of the agency's supervision:
vacancies at probation hostels
Probation Hostels are approved premises/place of temporary residence for low risk probationers. There are four Hostels with a total capacity of 200 residents and only one is for girls. The hostels are still operated as open institutions with limited restrictions and house less dangerous offenders. The majority of the residents are youthful probationers. The Hostels are situated in Mombasa (Shanzu), Nakuru (for girls), Eldoret (Kimumu) and Nairobi (Makadara).
We were involved in requisitioning for information about whether there was space in the hostels so that we would place the offenders , therein, the criteria was to find out the hostel which had a close proximity to the offenders' abode so that they could be placed therein.
The main challenge is the fact that these hostels are few and therefore there is a tendency that the offenders will at times be remanded in prisons for the amount of time that is proper for there to be vacancy. This ends up contaminating the offenders who are supposed to be interacting with ones in the same category. Confining a petty offender with those who are hardcore offenders may end up transforming this other one into a hardcore offender.
There was however a girls hostel in Siaya that the probation department was building. This will see the decongestion in the long run, even in the hostels, aside from the prisons. The government therefore has to channel resources towards the building of more hostels, similar to the one in Siaya County if there is an objective of making the offenders transform into useful members of the society.

children who have been arrested while loitering in the streets
Often in the streets of Nairobi there are street children who roam aimlessly while wrecking havoc to motorists and pedestrians in equal measure. The Nairobi County Council, once in a while tries to clean the streets of such and these children being under age cannot be held in Police Stations, neither can they be placed in the prisons , mostly they were brought to the probation officers who were t, through interview and appropriate finding, reunite them with their families.
While at my attachment I was faced with a situation like this – where a child had run away from home because they feared that the parents were going to beat her up because of her academic performance, she had, according to her parents, been playing too much in school, an act that compromised the quality time she was to spend on books. After talking to her we found out where she lived - Dandora, went there and talked to the parents who agreed to abide by the conditions of not inflicting harm on her. She was finally reunited with her parents.
Challenges that the Probation and Aftercare Department face in Kenya
While at the attachment, the one thing that was evident was that the department was short of staff that would carry out the work. The amount of work is not commensurate to the workforce available. At times we were supposed to be at different places at the same time. Therefore the government should consider employing more officers to do the job.
Secondly there were inadequate funds. The situation is so bad that there is even unavailability of stationery that is to be used for office work; the offices had to buy his writing materials from his own money to facilitate the interviewing process. The inadequacy was also experienced in circumstances that the vehicle had no gas to make it run. Most of the visits were done on our own means of transport which the officer claimed that rarely was it reimbursed on the payroll at the end of every month.
Lastly was to do with the public who at times never understood the operations of the department. Some thought that when the offender has given out bail or bond, then it serves as a fine for the offence committed and as such, there is no further need of coming back to court, this tendency made the incidences of jumping bail to be numerous. Some of the people also attempted to bribe the officers so as to have a favourable report written on their behalf regardless of the true state of affairs. Therefore the government should endeavour to educate more people and if possible, incorporate probation studies into the syllabus at elementary and secondary levels.


Conclusion
Decongesting the prisons really require a lot of efforts that will ensure that the country abides with. The alternatives to imprisonment must be undertaken with a lot of caution because just going into it without proper policies will make it to crumble deadly. Where possible, probation services should have the option to require offenders to participate in alcohol/drug rehabilitation programmes, sex-offender rehabilitation programmes, restorative justice programmes, community services and other activities as considered relevant on a case by case basis. Probation services should be tailored to offenders needs. The economic status of the offender should be taken into consideration for all fines and Compensation Orders, but should ensure that fines for wealthier offenders are not out of proportion with their crimes. Legal provisions to enable courts to sentence certain offenders, including those addicted to drugs, to complete relevant and intensive treatment programmes as an alternative to imprisonment must be in place, the governments should channel more resources into rehabilitation centres with proven success in terms of the rehabilitation of the individuals treated.

Apart from the above bottlenecks, probation and other forms of punishments aside from imprisonment can go a long way in decongesting our prisons. A decongested prison can bring about quality service to the remaining inmates and at the end of it all, the products that have been churned out of prison can be well integrated into the society and they become useful, at the end we shall have avoided reoffending that is as a result of inadequate and substandard quality services that are in prison.
However we should also take caution to make probation a viable alternative which will, at the end of it all, be able to meet the quality standards that are set. This can be done by the government paying more attention to it and even giving it the required funds.
It is only until then that the criminal justice system shall have reformed.






The Constitution of Kenya 2010 Art 49(1)(h)
The Constitution of Kenya 2010 Art 49(2)
Principal Judge of the High Court, Richard Mwongo on "COURTS VOW TO SPEED UP WHEELS OF JUSTICE, DECONGEST PRISONS," Standard Newspaper, Kenya Last updated on 15 Oct 2013 00:00
S 11(1) Sexual Offences Act No. 3 of 2006 [Rev. 2009]

S 137F Criminal Procedure Code CAP. 75 [Rev. 2009]

Pre Trial Detention in Kenya; Balancing the Rights of Criminal Defendants and the Interests of Justice [2011]
R V Peter Njoroge and 2 Others, Mlimani Criminal Case No, 1651/2013(ongoing)
http://www.probation.go.ke/index.php/component/content/article/12-our-services/30-probation-orders?
Borstal Institutions Act Cap. 92 [Rev. 2009]