Research shows that maternal incarceration is often more disruptive for mother and child than paternal incarceration. Only 9% of children with a mother in prison are cared for by their father compared to 90% of children being cared for by their mother, with a father in prison.

Imprisonment can severely alter, disrupt, or even terminate mothering. Pregnancy, delivery, lactation, and parenting each require special consideration. For example, despite being recommended by doctors, breastfeeding is problematic for prisoners who have been separated from their children. Often seen by society as giving up on or abandoning their children, women in prison tend to invoke less empathy or tolerance than women whose mothering is disrupted through other means, such as illness. Despite the willingness of some women to mother in prison, the restrictions of the prison environment impact the ability to participate in mothering, which is often compounded by a sense of guilt, failure, stigma, and shame.

A Statistical Analysis of Imprisoned Offenders” revealed that there were 2599 convicted female offenders and over 387 children accompanying their mothers in prison in Kenya in March 2016 only (Njoki & Karige, 2016). These numbers, however, often fluctuate as some inmates are released when their jail term ends while others are remanded or jailed when found guilty of offences. For example, in Kenya, 4,053 and 3,348 children under four spent some time in prisons in 2005 and 2009, respectively (Kenya Prisons Service, 2005; 2009)[1]. Children of imprisoned women can be categorized into two: those who are separated from their mothers while the mothers are imprisoned and those who go into prison with their mothers.

According to the Kenyan constitution, Persons Deprived of Liberty Act (2014), mothers in prison are allowed to have their children accompany them until they attain the age of 4 years. The laws in Kenya allow children over the age of four to visit an inmate up to three times per year. For children younger than four, women prisoners are only allowed short mid-day visits or while they are nursing. All other times, the children are kept from their mothers in a nursery while their mothers are in their cells. Even with Kenya’s law allowing grown children to visit, many mothers spend time in prison without easy access to their children, and some never see their children at all.

Children in prison have often been referred to as forgotten or invisible victims of crime and the penal code. According to a 2019 report, children are usually held for lengthy periods in prisons in deplorable conditions (overcrowded, inadequate nutrition, exposure to disease, and insufficient access to pediatric healthcare). They are often incarcerated with adults and are at massive risk of systemic neglect and abuse. These children are exposed to all manner of crimes and criminals at a tender age.

The onus is on prisons to equip the institutions with child-friendly areas and train caregivers. Earlier this year, the Interior Ministry declared that all women’s prisons would be fitted with daycare centres to improve the welfare of the children born in the correctional institutions. While Kenya has made significant strides in improving the conditions for these children, the judiciary needs to review the laws for the sentencing of women with children. The disruption caused by COVID-19 has exposed the need to provide alternatives to imprisonment and implement compassionate, conditional or early release schemes that will decongest the prisons. Aspiration 8 of Agenda 2040 also outlines how children can benefit from a child-sensitive criminal justice system. Such a system would begin with preventive measures that ensure a pregnant woman or a mother with a child can be given non-custodial sentences for petty offences.

[1] Interdisciplinary Journal on the African Child Special edition 2019 Vol. 01, Issue 01