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Title: Exploring how the Kenyan court could balance the state's duty to punish pregnant women and mothers with young children for criminal offences with the obligation to protect the rights of the child as provided for under the United Nations Convention on the Rights of the Child
Author: MacHaria, Alice Wambui
ISNI:       0000 0004 7970 1175
Awarding Body: King's College London
Current Institution: King's College London (University of London)
Date of Award: 2019
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In Kenya, England and Wales as in many other jurisdictions, the imprisonment of pregnant women and mothers with babies is not prohibited by law. Yet, the circumstances in which these children are held challenge the legal provisions on the protection of children. Adopting a child rights perspective, this study explores how the criminal courts in Kenya could go about sentencing mothers of young children for the commission of criminal offences, whilst protecting the rights of the child as envisaged under the United Nations Convention on the Rights of the Child (UNCRC), which Kenya domesticated in her 2010 Constitution. Drawing on the author's experience as a sentencer in the Kenyan court and with reference to domestic, regional and international law, the study argues that children's rights are presently left in abeyance when their mothers are sentenced to imprisonment, and that greater efforts should be made to recognize and give effect to the child's existence as an equal holder of human rights, despite being dependent on the convicted caregiver. It explores the evolution of women imprisonment in Kenya, the imbedded patriarchal systems, application of precedence as well as the court's discretion in view of the dependent child, and concludes that policy reform in this respect calls for change in attitude and approach on women and children's issues. Observing that most women imprisoned with their children fall beneath the custodial threshold set by law, the research examines how current sentencing practices could be reformed, and suggests harnessing the Kenyan Power of Mercy Committee, the Kenyan Sentencing Guidelines and other practices from developed countries in protecting the child's rights, whilst delivering proportionate sentences for the offending mothers. It is concluded that strict accountability for the dependent child should be situated with the judiciary through the trial court, and that the same be pronounced as a mandatory legal requirement measurable through the court returns.
Supervisor: Player, Elaine Beryl ; Gilmore, Stephen Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available