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.
Women are particularly at risk.
Imagine you are an unemployed single mother with limited resources. You need to put food on the table and your options are few and far between. You secure a job interview but with no money available for child care, you leave your child at home alone, or in the care of a friend. As a result, you find yourself arrested and taken into custody.
We meet many mothers in conflict with the law faced with charges of child neglect. Many have been out looking for work, and others work part-time menial jobs to cater for their young families.
Child neglect is a statutory offence where a parent has failed to meet a child’s needs. The law 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 while in search of an income. Though the courts are keen to protect the welfare of children, the role and responsibilities of fathers is 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 be given prison sentences rather than non-custodial options.
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.
The ripple effect of discriminatory laws.
Mothers are subject to the impact of a multitude of structural and systemic barriers that disproportionately affect women. Some may consider it discriminatory to charge women with child neglect while fathers are less often 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 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 can do more to provide essential support for families in these times? In the spirit of Ubuntu-ism in which it is often believed that it takes a village to raise a child, perhaps we have strayed from this approach to parenting. Should the law make room for a more communal approach to childcare? It is no longer feasible to uphold rigid sentencing.
As Justice Defenders we dream of a day where no one is punished or imprisoned without telling their side of the story.
It is time we provide a people-centred approach to the justice system. We hope to work towards a better aligned justice system that is respondent to society’s needs and upholds fairness. 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.
Learn more about our model.
AUTHORS
Willis Ochieng, Assistant Legal Officer
Ivy Mang'eli, Communications Officer