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Alice Wambui Macharia, Rights of the Child, Mothers and Sentencing: The Case of Kenya

Document Cited authorities 2 Cited in Related
Published date01 April 2024
DOIhttp://doi.org/10.1177/14624745231184622
AuthorNancy Loucks
Date01 April 2024
Alice Wambui Macharia, Rights of the Child, Mothers and Sentencing: The
Case of Kenya, London: Routledge –Routledge Research in Human
Rights Law, 2021; 176 pp., £120 (hb), £36.99 (pb), £33.29 (ebook)
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 custo-
dial 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 Rights of the Child, Mothers and Sentencing,
Macharia examines two potentially conf‌licting obligations for judges: the duty to
protect the public from crime, and the duty to protect children’s rights. However, she
argues that the principled answer is clear, namely 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 (1989), and consistent with the land-
mark South African Constitutional Court case, SvM(2007), 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’.
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 practicing judge and the specif‌ic legal and cul-
tural context of a non-Western country sets it apart, adds notably to the literature in this
f‌ield, and has prompted the introduction of training for the judiciary, and child protection
policies in prisons in Kenya.
Focusing specif‌ically on Kenya, Macharia argues that consideration of the impact on
children when a mother is sentenced is not a new concept, as the State already commutes
the death penalty to life imprisonment if a woman is pregnant. The book argues power-
fully 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 coordination and communication between agencies and even institutional
neglect such as no allocation of additional food to support children living in prison
with their mothers. 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 most 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.
Macharia raises an interesting point regarding the lack of data collection about chil-
dren entering prison with their mothers: with no off‌icial record of a child’s existence
in secure facilities, as was the case in Kenya, this means that if child dies in prison,
there is no off‌icial oversight, documentation of, or responsibility for the post-mortem
Book Reviews 443

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