The law can be harsh and sometimes discriminatory. Around the world, people in defenceless communities cannot access justice and often don't get a fair hearing.
For single mothers, one decision can lead to irreparable damage.
Imagine you are a poor, single mother who gets a job interview. You need to put food on the table and your options are limited. Without child care, you leave your child at home alone, or in the care of a friend. Immediately, you find yourself thrown in prison for child neglect.
This is the story for women like Muthoni* and many others we’ve met through our legal offices. Without any legal knowledge or representation, Muthoni found herself in prison. Now, she’s working with our paralegals to have her sentence reviewed, with the hope that she can reunite with her child sooner.
Child neglect is a statutory offence. It seeks to uphold the best interests of the child where parents have abdicated their responsibilities. In Kenya, women – in particular single mothers – are the people most often charged with the offence. Often, as sole providers for their young families, those without the money to pay for childcare, face the difficult decision to leave their child unattended in search of an income. Though the courts are keen to protect the welfare of children, the role and responsibilities of secondary caregivers – the fathers – are often overlooked. It’s rare for a male to be charged with the same offence.
Once single mothers enter the criminal justice system, many can’t afford legal representation or bail. As a result, they’re more likely to get prison sentences rather than non-custodial options.
Each of us should be equally protected by the law and answerable to it, no matter our background, gender, or status – the scales of justice need balancing. We need our laws to reflect the society we live in.
Evolving family dynamics.
The number of single-parent families is rising. According to the Kenyan national census, families headed by single parents in Kenya rose from 25% in 2009 to 38% in 2019.
After a separation, it’s common for mothers to get primary custody of the child. Research indicates “single-parent families — and especially mother-only households — are more likely to live in poverty compared to married-parent households.”¹ With many fathers absent, women face the heavy responsibility of securing an income, while also being the sole caregiver. Resulting in a disproportionate number of women facing charges of child neglect.
Mothers can’t win. The system is structured to perpetuate double standards when it comes to parental care, income generation and the nurturing of children.
The ripple effect of discriminatory laws.
Some may consider it discriminatory to charge women with child neglect while fathers are hardly held to the same standard. Indeed, women are often the victims of circumstance. Whether it be poverty, gender-based violence or a lack of opportunities – many find themselves standing before the court charged with child neglect. The courts proceed to mete out charges with little regard for the impact it has on the lives of the women who are sentenced or the children themselves. A generation of children are left without parental support. The ripple effect on wellbeing, education and health can be devastating.
It is time to reconsider the law and review its effects. Could it be possible that as a society we have failed to provide essential support for parents? If the state isn't able to provide access to low-cost childcare for single mothers, the law needs to take this into account. It is no longer feasible to uphold rigid sentencing. It must reflect changes in family dynamics.
As Justice Defenders we dream of a day where no one is punished or imprisoned – and certainly not caned or executed – without telling their side of the story. Our hope is for a world where each of us is equally accountable to and protected by the law.
Let us reflect on the law in these changing times. No longer is it possible to uphold rigid sentencing. It is time we provide a people-centred approach to justice.
Learn more about our model.
AUTHORS
Willis Ochieng, Assistant Legal Officer
Ivy Mang'eli, Communications Officer
*We have changed Muthoni's name to protect her privacy.