KITUO CHA SHERIA BLOG

Deterrence over Punishment: Introduction of Parole in the Criminal Justice System

Introduction

Parole may be defined as conditional release of a prisoner, subject to supervision, before the expiry of the prison term.  This is a practice anchored in the realization that sentencing doesn’t have a unitary purpose. A lot of scholars have unpackaged that sentencing has multiple functions which include:  punishment, deterrence, retribution and a show of state power. There is a strong undisputed argument that sentencing is not just for the judges and the statute books but it requires a consideration of a number of factors, key of which are the objectives of the punishment and nature and characteristic of the offence. Parole therefore comes to play due to these factors. It is important to remember that parole is not excusing an offender, it is giving an offender a chance to serve the sentence away from the prison as stated in the South African Constitutional case of   S v Dodo 2001 (3) SA 382 CC, the Constitutional court made the point that the Executive has an important part to play with regards to sentencing. This paper discusses parole as a component of both the criminal justice system and the Executive.

A number of issues come to focus: –

1. Parole and the Objective of the Correctional Service system
2. Medical Parole
3. Implication on the Law on Parole

Background

The prison services in Kenya was architectured by the British East African protectorate with the enactment of East African prisons regulation of 1902. The structures were however established in 1911 in the Ministry of Home Affairs Sports and Heritage. 1917 saw the introduction of the Commissioner and Assistant Commissioner of Prisons to enhance management of prisons. This was a change from the Prison Board.

Statistics indicate that in 1911, the prison population in Kenya was only 6,559 inmates managed and supervised by 319 staff. These inmates occupied the prisons and the borstal institutions in Kenya. The period between 1963 and 2002 witnessed somewhat of neglect in the prison services. This resulted into a myriad of challenges not just for the inmates but officers who run this department.

Since 2003 under the Government of President Mwai Kibaki and the stewardship of Vice President Moody Awori, a number of major reforms were undertaken. This came as a realization that the neglect had created impoverished living conditions in the prisons.

They had poor sanitation, non-existent medical check-ups and a horrible diet to boot.  The inmates basically lived in seclusion without any knowledge of the outside world.  This dramatically changed as there was an introduction of computers, TV sets and better education materials. Today inmates in most prisons have days set aside to meet with their families, fashion and design days, a better diet and portions, sanitation is also remarkably improved and the inmates generally live in a better and accommodative environment.

In spite of these, there are still major challenges within the prisons services such as overcrowding which is the subject of this paper. Illuminating literature on the subject of “overcrowding in Kenya’s prisons” indicates the ripple effects of overcrowding to include spread of diseases, pressure on the limited resources and perhaps the Government in Kenya is also spending more money to run the prison facilities.

It is against this backdrop that this proposal is built. This is an attempt to use the law to create a mechanism where the objectives of correctional services are met and at the same time, there is an avenue to decongest prisons in Kenya. Currently, data from the prisons department indicate that Kenya has a population of 50,223 against a capacity of 2,900.  Below is a breakdown of the prisons numbers: –

Sample of population of inmates in Kenya’s major Prisons.

These statistics mean that Kenya has up to 50, 000 of her people who are not producing optimally but are rather dependent on the State. Further, this can be translated to more than 50,000 families that carry both a psychological and literal burden.

As much as putting these inmates away is designed to protect both them and the society; perhaps, there is need introduce a proper mechanism that may facilitate early conditional release for those rehabilitated hence reducing congestion and getting the productive force back to the society.

Parole and the Objectives of the Correctional Service System

Prison system or the correctional service system is meant to put those who have gone against the norms of the society away. The reason for this is so as to maintain peace and stability in the society. The other objectives are punishment deterrence and rehabilitation. Parole plays the role of alternative to custodial measures where it is not necessary, rewarding offenders for good behaviour participating in rehabilitating programs and a way of reintegration into the society.

Medical Parole

While the law in Kenya provides for mitigating factors in sentencing, it does not provide for non-custodial sentence for those who are ill. As much as inmates are entitled to medical care, a law establishing parole may give those with terminal illness the flexibility to get parole and serve their sentence in a more humane way.

Implication of a Law on Parole

What would such a law mean in Kenya? It means reform in the correctional services. It will also mean review of the criminal laws. Offences in Kenya may have to be looked at as more than just felonies and misdemeanours to include rules on parole. This will also primarily involve the judiciary, the executive, civil society and the community in the justice system. Parole helps to solve overcrowding in the prison system as it gives structure to the prisons. It is also in line with the best practices and international law.

Conclusion

I write this paper because of my conviction that it’s about time for Kenya to carry on prison reforms. Perhaps it’s time for an attitude change and an effort to make things better through legislation.

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

https://www.wordpress.poeticfountain.com

https://www.facebook.com/pennyformythoughtsKZ