Written by Mary Malemba, People Daily

Emma Atieno was just going about her daily business when she abruptly found herself bundled inside a city askaris van. And before her mind could grasp that she had actually been arrested, she had to comprehend with news that she and her colleagues would spend the night at City Hall cells and arraigned the following day. Her mistake, her quest for working hard to earn a living.

In 2020, Atieno had left her home with wares she intended to sell in the streets of Nairobi’s town centre. Her intentions were to complement her husband’s income and also arm herself with a few coins of her own as a woman.

But even before she could sell anything, city askaris commonly referred to as kanjo, pounced on the hawkers. While her colleagues managed to escape the swoop, luck was not on Atieno’s side as she found herself bundled in an old looking cabin pick-up.

And since it was already past court working hours, she had to spend the long night at the County Hall cells and arraigned before a County Court the following morning.

She pleaded guilty to the charges of hawking without a license and was fined Sh10,000 or serve three months in prison if she failed to pay the fine.

“I could not afford raising that amount, so I was sent to Lang’ata Women’s Prison where I was to serve my sentence,” she recalls.

Emma Atieno was arrested and jailed for hawking leaving her children without their mother

The same day Atieno was arrested, her husband was attacked by unknown people and suffered serious injuries and taken to Kenyatta National Hospital for treatment.

This meant her two young children were left without the care of both parents and in the mercies of her friends.

“My phone had broken down during the arrest fracas, so I couldn’t inform anyone of my arrest. My children were on their own without their mother and father and they slept hungry that night,” says a tearful Atieno.

Were it not for Atieno’s good friends who accommodated her children for the few days she was in prison, the fate of the two minors would be unknown.

After three days of being in prison, her friend paid her fine. She was released and reunited with her family. “What would have been happened if I had spent the entire three months in prison? What would have happened to my children?” she poses.

The consequences and effects of women going to jail over petty offences is beyond just serving a jail term. Aside from stigma and shame, the term “ex-convict” brings to former imprisoned women, those left behind, especially children are left helpless.

Hated by her children

For Beatrice Tekira, she blames herself for her children’s misfortunes – they grew up seeing her in and out of prison over petty crimes such as shoplifting. In all her arrests, she had to serve a sentence as she could not afford paying fines. The effects of her frequent arrests were mirrored on her children.

In 2002, Tekira’s husband abandoned her and their three children, leaving her with the heavy responsibility of the family breadwinner.

“I started a food kiosk business, but it was not doing well. At the end of the day, I would be left with nothing for my children or even restock,” she shares.

This pushed her to shoplifting in the supermarkets. He first attempt saw her arrested and charged with stealing. She pleaded guilty to the charges and was sentenced to three years in prison. She was sent to Lang’ata Women’s Prison.

Beatrice Tekeira has been jailed multiple times and this has had an adverse effect on her children

After the completion of her term, she went back to her rented house only to find a new occupant. Her children had been evicted and were roaming the streets. She managed to find them, brought them together and attempted to rebuild her life.

“Being an ex-convict, I could not get a job to sustain myself. Therefore, I went back to stealing, which saw me back in prison again. That was the beginning of my frequent arrests and imprisonment,” she says.

Between 2001 and 2018, Tekira cannot remember the number of times she has been arrested for stealing. “All those years, I was in and out of prison because of stealing to feed myself and children. All I needed was to earn decently, but I could not get it since I was an ex-convict,” she says.

And due to her history, most of the time she was sentenced without an alternative of the fine, and therefore had to serve a full sentence.

And as she languished in Kenya’s prison, her children suffered the consequences of having to live without their mother and the stigma of being children of a convict.

This greatly affected them and they harboured anger against their mother which turned to hatred and animosity. The children perceived her as a shame and a let-down to the society and a mother who never cared about her children.

In 2018, Tekira decided her three-year sentence from 2016 was the last time she was going to spend in prison and opted to change her ways for good.

And for the last four years, the once hated woman has chosen to be a hope to women who are serving sentences or are leaving prisons by openly talking about her life experience and how she was able to cope with life after prison.

Both Atieno and Tekira believe that alternative sentencing, such as non-custodial sentences that don’t require one to go to prison, would protect the children from being punished for “sins of their parents”. Examples of alternative sentencing include community service order where one carries out, community work such as cleaning the market. Conditional discharge, on the other hand sees one acquitted, but on condition, such as they shouldn’t be taken to court for similar offences. A suspended or deferred sentence is when the sentence is delayed for some time instead of serving immediately. Lastly, restitution to the victim requires one to for example pay for what they have stolen instead of going to jail.

Tekira says if she served a non-custodial sentence, she would have been punished for her wrong doings as well as be present in her children’s life and ensured to her level best that they got a good education.

High numbers of female petty offenders

A 2022 report of a study by Clean Start Solutions-Africa, an organization that helps female ex-convicts in rebuilding their lives while incarcerated and after their release shows 72% of women in prisons were convicted over petty offences.

Emmanuel Wanyonyi, the author of the study, which was carried out in partnership with the International Commission of Jurists – Kenya (ICJ-Kenya) and Ford Foundation says these women were sent to prison because they could not afford to pay fines, whose alternatives were to serve a prison sentence.

“Majority of female prisoners are serving sentences of between one to two years. Loitering with intent to commit prostitution was prominently mentioned as the reason they are serving prison term,” says Wanyonyi.

The researcher further says 87% of the petty offenders were not informed of their rights while being arrested, charged or being sentenced. During the sentencing, 62% of the female petty offenders were not given an alternative to imprisonment while 34% were given alternatives.

Also, the majority of the female petty offenders could not afford defense lawyers or even pay bail terms set-up by the courts for their release pending their trials.

The study further revealed that the rights of the accused persons are violated during the pre-trial detention where they are forced to strip naked for intrusive searches.

Wanyonyi says there was need to decriminalize petty offences such as loitering, hawking, and other livelihood-related offences and to further have law enforcers comply with guidelines on types of offences and desist from making arbitrary arrests. “Criminal justice system should ensure women in conflict with the law are made aware of their human and legal rights during the whole process. This is because most of the offenders are illiterate or semi-illiterate,” he says.

Clean Start Founder and CEO Teresa Njoroge

Teresa Njoroge, the CEO of Clean Start says the research will give a leeway for a campaign to implement the recommendations.

She says petty offences can be solved through other means such as non-custodial sentences or community service order, which have been disregarded by Kenya’s judicial system.

“Kenya cannot continue sending women arrested while looking for food to jail. These arrests impact thousands of children who are left by themselves,” she says.

She says the majority of the victims are women in low-income bracket who are also their families’ breadwinners.

Clean Start has been at the forefront of supporting convicted women and ensuring their children are catered for while they are serving the sentences.

They further ensure that once the women complete their sentences, they are safely re-integrated back to the society and further set-up income-generating activities for them.

This story first appeared in People Daily on August 10, 2022