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

ContentsINTEREST STATEMENT...................................................2

Prison overcrowding – negative effects on prison inmates............5Alternatives to Imprisonment........................................7

Fines and Compensation Orders....................................7Conditional (or Early) Release...................................8

FIELD WORK REPORT....................................................9Pre Bail Report....................................................12

Interviewing offenders who have been put on probation and community service orders on their suitability and the best areas where they canbe posted – offender assessment....................................14

Pre-Sanction Report.........................................14

Community Service Reports........................................16Assigning supervisors to the offenders to help in carrying out the orders of the court................................................17vacancies at probation hostels....................................19

children who have been arrested while loitering in the streets....20Challenges that the Probation and Aftercare Department face in Kenya...................................................................21

Conclusion..........................................................22



INTEREST STATEMENTProbation 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 released1. 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 confinement2. 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.

1 The Constitution of Kenya 2010 Art 49(1)(h)2 The Constitution of Kenya 2010 Art 49(2)



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 inmates3- 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

3 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



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 inmatesProblems 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 ImprisonmentAside 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 adult4)

are not tackled by imposing a fine as a principal sentence.

Automatic fines, such as those for motoring offences and parking

4 S 11(1) Sexual Offences Act No. 3 of 2006 [Rev. 2009]



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 imprisonment5. 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.

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



FIELD WORK REPORTThe 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.6

6 Pre Trial Detention in Kenya; Balancing the Rights of Criminal Defendants and the Interests of Justice [2011]



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.7 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

7 R V Peter Njoroge and 2 Others, Mlimani Criminal Case No, 1651/2013(ongoing)



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 ReportPart 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 ReportsInstead 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).8

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.

8 http://www.probation.go.ke/index.php/component/content/article/12-our-services/30-probation-orders?



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 9, mostly they were brought to the probation

9 Borstal Institutions Act Cap. 92 [Rev. 2009]



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 KenyaWhile 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.

ConclusionDecongesting 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.

non custodial sentences as an avenue to de congest kenyan prisons

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