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
| Published date | 01 September 2023 |
| Author | Nancy Loucks |
| Date | 01 September 2023 |
| DOI | http://doi.org/10.1111/hojo.12540 |
BOOK REVIEWS 433
DOI: 10.1111/ho jo.12540
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
Nancy Loucks
Families Outside & University of Strathclyde
Email: Nancy.Loucks@familiesoutside.org.uk
Most countries fail specifically to task the judiciary with upholding the autonomy of the child and
protecting children’srights 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 con-
sideration for the impact on children punishes them for their mother’scrimes, with consequences
for the children’sfuture 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, Sv. M([2007] ZACC 18) in which Justice Albie Sachs stated that chil-
dren ‘.. . 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’simmediate 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, mean-
while 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
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