PARTICIPANTS’
PAPERSRESOURCE
MATERIAL SERIES
No. 57CRIME PREVENTION: CURRENT ISSUES IN CORRECTIONAL
TREATMENT AND EFFECTIVE COUNTERMEASURES
Muhoro Peterson Kamunyu*
I. INTRODUCTION
In the recent past, the correctional
services in Kenya have been in the print
and electronic media spotlights. They havereceived critical appraisal that sometimes
has been outright negative. They havebeen as it were stripped and laid out forvery close scrutiny:“Naked inmates shock judges inprison visit” screamed the East
African Standard of 4.11.99 front
page. “Woman jailed for seven years
for stealing husbands cow” - Daily
Nation - 4.11.99
The editorial leadership of the print
media has also argued against the excess
and the rot that is currently to be found incorrectional institutions. The concern
shown leaves one wondering whether allthese shortcomings have been there allalong with nobody noticing or it is the old
fashion of bashing public institutions withcorrectional institutions providing an easytarget. The following discussion istherefore an attempt to add to the debate
by objectively looking at the critical issues
in this drama. I have therefore examined
the following areas: i) Difficulties in developing effective
rehabilitation programmes inprisons.
ii) The current and cumulative logisticalproblems faced by correctional
administrators.
iii) Suggested remedial strategies andtheir limitations.
*

Director Probation and Aftercare Service, Kenya

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Ideally a man is born free and thesojourn in life is a social drama in pursuitof enjoyment of that freedom. The social
norms from onset reinforce this being “free”
status. This is so until the long arm of thelaw of the land catches up withtransgressors and the law breakers and foronce the freedom is taken away. The
punishment as often is the case - isautomatic exclusion and separation fromthe rest of society and being placed undercharge of a correctional institution. Within
the institutions are well rehearsed andregimented roles, rules and regulations.
The offender of necessity has to adjust to
the new status and fit into a new life - life
inside the prison walls. This process offitting into a new life is gradual, thoroughand ends up abolishing the individualism
and privacy - values that one has long beensocialised into.
Prisons by design are places where
offenders are sent down as punishment.
They are meant to epitomize both theretributive and deterrence principles ofsentencing. The architecture and social
aloofness further reinforces this feeling ofpunishment. Also prisons are places where
hardships are inevitably occasioned
whether by design, deliberate or otherwise.
The deprivation of personal liberties, thedenials of the basic choices in life, thewithholding and withdrawal of basic
privileges. All the basic issues that findexpression in ordinary life are controlled
and sparingly provided.
Prisoners soon learn the art ofconforming to the expectations of custody.
Prison stay only makes sense depending
on ones ability to quickly adjust and115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
assimilate the social life in prison. In so
conforming, the offender is able to copewith the pains of imprisonment.
Adjustment by offenders translates itself
into various social relationships. Decision
making on the most basic chores androutines is regimented. Orders are issued
out and obedience extracted. Soon enoughan offender is institutionalised into amechanical actor to programmed
commands. The more an offenderassimilates into the social life in prison, themore he/she becomes dependent on thefavours conferred by correctional services.
The institutionalisation bonding on theoffender creates dependence complex thatnegates any long-term rehabilitation
efforts. Prisons therefore looked at fromthe theoretical framework have in built
such heavy odds that deny offenders an
opportunity or a chance with reasonableprobability for rehabilitation. As is often
quoted, it is not possible to rehabilitate
offenders in situations of captivity.

II. CURRENT ISSUES IN PRISONS
The issues that have brought prisons
into close focus relate to:-Over-crowding in prisons
Old and dilapidated prisons

A. Overcrowding in Prisons
There are 78 prison establishments in
Kenya. Their capacity is indeterminable
and they are stretched to accommodate
anybody convicted to serve a prison term.
It is however generally agreed that with
between 33,000 to 40,000 daily average
prison population; the prisons in Kenya arein some cases 100% - 150% overcrowded.
The prisoners are:8,000 - 10,000 - in custody- awaiting trial- awaiting sentence or- awaiting repatriation
25,000 - 30,000 - c o n v i c t e d a n dsentenced prisoners.
The growth of prison population has
been rapid and the trend has been upwardwith no peak in sight. This could partly be
accounted for by the actual population
growth which reflects that up to 46% of
Kenyans are aged 24 years and below.
It is also true that by tradition and due
to absence of effective and extensive noncustodial sanctions, imprisonment as acustodial sentence has been extensively
utilised by the courts. Unlike any othersentence, custody has a high public profile
relative to other sentences. With arelatively young population, it ispredictable that potential for more people
being sentenced to prison in future is high- very high indeed given the population
living below poverty line.
The rapid population growth; arelatively large proportion of youthful
population, a poorly performing economy;
and the courts preference for custodysentence and we have an ideal recipe for
prisons overcrowding. Prisons overcrowding means the facilities meant for few
are increasingly stretched to cater for more
and more prisoners. It is a common sayingthat prisons never fill up. What is a fact isthat physical utilities in prisons are overused, over utilised, over-stretched and theconsequent wear and tear is fast andevident. Prisoners are therefore left toshare minimum of everything - food,clothing, sleeping space, exercise space,
and welfare is limited to the bareminimum. Overcrowding generally
prevents realisation of any planned
utilisation of prisons resources, facilities
and leads to otherwise uncalled for
restrictions. This is the unending cycle of325

RESOURCE MATERIAL SERIES No. 57
overcrowding leading to decrease resources
leading to overcrowding in prisons.

picture is not as gloomy as it has been
printed so far.

B. Old and Dilapidated Prisons
Majority of the prisons institutions in
use today were built in 1920’s, 1930’s and1940’s. They were built during the heydays of colonial authority in Kenya. Today,
the same prisons are found in many
districts - same architecture, sagging walls
and a perimeter barbed wire fences.

III. CURRENT PRISONSPROGRAMMESSuch physical facilities incur heavy
maintenance costs, are problematic tomaintain in hygienic conditions as
demanded by public health act and in mostcases are a public eye sore. They are
degrading settlements to live in both forthe prisoner and prison officer. The obvious
solution to these old prison institutions is
to embark on building new modern prisons.
This however is an expensive venture anddoes not attract goodwill in times of scarce
resources allocation.
Overcrowding in our prisons coupledwith old dilapidated prison buildings leads
to: i) Unhygienic living conditions which
often lead to outbreak ofcommunicable diseases. The
incidence of skin diseases, water andair borne diseases is symptomatic of
this problem.
ii) U n d e r f e d , m a l n o u r i s h e d a n dweakened prisoners who are likely to
succumb to illnesses.
iii) Poorly clothed prisoners.
iv) High incidences of aggressive
tendencies of prisoner to prisoner or
prison officer to prisoner.
Given such heavy odds, it is a difficult
task for correctional administrators tomount effective rehabilitation
programmes. This however does not meanthat efforts are not made. Indeed the326

A. Prisons Farming Activities
Kenya is basically an agriculturalcountry. The majority of the population
derive their livelihood from agriculture andagricultural related activities. Land as aresource is therefore central to majority of
Kenyans social-economic engagements.
The prisons service controls a sizeable land
estates - some of it in prime agriculturalareas. Farming in prisons is therefore
potentially a major activity for theprisoners. A lot of efforts are made to
produce basic foodstuffs viz; maize, beans,rice, bananas, fruits, vegetables. Livestock
farming is also encouraged especially in low
rainfall places. A combination of unpaid
labour, rent free farmlands and trained
prison officers should ideally produce
enough to create a surplus for the market
place. The results in appropriation in aid
realised however reflect dismal returns.
In spite of this, prisons farms have apotential to feed the prisoners and realise
surplus for sale. Such proceeds could inturn be ploughed back into welfare
activities that could lessen the negatives
on prisoners’ lives and brighten the dullcorrectional lifestyle.
B. Prisons Training Activities
Our prisons are reknown for producing
top class products. The carpentry
workshops, weaving tailoring, masonry,
blacksmith, printing are some of the skills
taught to prisoners. Indeed some of the
products from prison industries competefavourably in the market place. In 1999,
prisons stand in Nairobi Agricultural show
was awarded first position against stiffcompetition. From the major prisons,medium and small workshops keep the

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
prisoners busy. With unpaid convict labour,
qualified instructors and a controlledenvironment, prisons produce goods whose
value would offset any cost, however, prison
industries do not generate any sizeable
revenue - why is this?

reinforced genuine character change ispossible. Such spiritual appeal to beeffective has to be launched, managed andrun by existing community religious groups
rather than being tied to the regimented,
correctional programme.

A reasonable guess is: -D. Prisons Welfare Service
The Prisons welfare services were
established to create a linkage between theprisoner and the outside world. The
welfare officers are meant to keep bridges
between the prisoners and their families
or any other relations. Hence the welfare
services is staged and run by civilian staff.
The scope, effectiveness and efficiency of
welfare units in prisons are doubtful. Often
times, the greatest problem is lack of funds
to sustain welfare activities that aremeaningful and of benefit to the prisoners.

-

demotivated prisoners
lack of marketing skills by prison
authorities for their products
wastage occasioned by training

Majority of the prisoners have left
custody with improved skills on various
trades. It is however doubtful whether they
engage in the same trades once out ofprison. One reason is that majority ofprisoners learn these trades and perfecttheir skills through force of circumstancesand not through their voluntary individual
choice. The interest is therefore sustained
as long as they are in prison.

C. Prisons Spiritual Guidance andCounseling
The Kenya Prisons spiritual guidanceand counseling services are now recognised
as having positive inputs. Based on thereligious crusade of reclaiming lost soulsof the sinners/offenders, all the majorreligious denominations have set up basein prisons and do provide religious
teaching, guidance and counseling services
to prisoners. In some instances theprisoners do have character change from
criminality at least as they confess while
in prison. Whether they maintain the same
positive characters after their sentences
are over is another issue.
It is true, one dimension of any person’s
culture is the religious believes and values
attached to it. Without even compounding
rehabilitation, it is possible to appeal to theprisoner’s soft spot and if systematically

There is also the old issue of welfare
officers who are advocates of generic social
work practice, principles and ethics ofsocial work being relegated to work within
the limits of prison walls. Whatever thegood intentions there remains conflict ofinterests. For example the principle ofconfidentiality is difficult to keep. What
information is one duty bound to disclose
to prison authorities?
It would be better perhaps for thewelfare units to operate from outside theconfines of prison walls i.e. creating rapportof the community so that the eventual
prisoners resettlement is easy and smooth.
These and many other issues continue
to hamper the welfare services in prisons.
IV. OTHER SENTENCING OPTIONS
Any discussion of the merits or demeritsof custodial sentences, the pros and consof imprisonment and advantages or
disadvantages end up looking at theavailable alternatives.

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RESOURCE MATERIAL SERIES No. 57
These alternatives are;-Diversion strategies during the pretrial stage.
Non-custodial sentencing options
during the pre-sentence stage.

A. Diversion
Criminal justice process starts fromarrest of suspect, through arraignment incourt, trial conviction or otherwise,
sentencing and punishment. Diversion
refers to deliberate intervention
mechanisms put in place to offload
suspected offenders from reaching the final
stage of conviction and sentence. The
diversion could be facilitated by the policearresting arm of the Government, theprosecutors or the trial court. At any stage
during the process, the preferred charge
can be terminated and the suspect let off
with a warning, caution or an order to keep
peace over a given time. The objective ofany diversion is to stem off categories ofpetty persistent offenders, youthful
offenders, misdemeanour range ofoffenders and other nuisance offenders
from clogging the criminal justiceadministration. All these categories whenaggregated amounts to quite a sizeable
number who would otherwise be tried witha possibility of conviction and most likely
imprisonment.
Diversion is therefore a useful strategy
if properly implemented. So far however,the statistics available reflect a negligible
practice. It is therefore not uncommon forjuvenile offenders to be overcrowded inapproved schools, borstal institutions andother remand centres. This would not be
the case if diversion was used to asignificant level.
B. Non-Custodial Options
Non-custodial sentences range fromfines and other monetary penalties,

328

conditional and unconditional suspended
sentences, probation orders, community
service orders; each of which is outlined
hereunder:i)Fines:The use of monetary penalties is now
recognised as expedient and processes alarge proportion of offenders in any given
court. The monetary penalty as a penal
sanction assumes among other things that:“an offender is penalised proportional tohis/her earning capacity”
Often however, the fines are dispensed
by magistrates and are dependent on
subjective discretionary considerations.
There are not set guidelines to standardiselevels of the fines awarded and therefore
avoid excesses. As mentioned earlier,majority of the population are living below
the poverty line. Add another lot who arein economically precautious position andthe proportion who cannot afford to pay
fines increases. To compound the fine as a
viable option is the fact that is given as analternative to imprisonment thus:“So much to be paid or in default so manydays/months/years to be served in prisons”
Majority of such offenders are unable toredeem themselves and end up in prison.
Fines as a sentence remains the mostmisapplied and inconsistent in penal
intention. A common offence of stealing forexample attracts a fine whose range andvariation is so wide that it is unjust. It is
however the case that fines account for thelargest proportion of courts sentences - over
70% in some cases in any given year.
Assuming an effective and efficient fines
collection and management, more offenders
could be cleared using this option than ispresently the case.

115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSii) C o n d i t i o n a l a n d U n c o n d i t i o n a l
Discharges
The courts even after declaring a guilty
verdict have the option of awarding
conditional or unconditional discharge
depending on each case. The courts havewide discretionary powers in deciding
conditional or unconditional options. Thisis an opportunity the courts could use todischarge all those found guilty but who
have proof of ill health or terminal
illnesses. Rather than load prisons withsickly prisoners; the courts could use theirdiscretionary powers to allow such people
to be taken care of by their relatives andsuspend all such cases with other orders
as each merits. More importantly, thecourts could demystify conditional andunconditional discharges by offering
reasons behind such decisions in an open
court to stem off speculative concerns by
the public.

probation office existing alongside a court
establishment. This arrangement ensuresthat the court orders requiring information
are expediently attended to.

As it is the case, unconditional andconditional orders of the courts aresparingly utilised and the overall impact
is not significant. The contention here isthat these orders can meaningfully be usedespecially if for all such cases there is anaccompanying pre-sentence social report.

For any social report submitted to court,
it is entirely left to the discretion of thecourt to make a probation order or any
other sentence. To release or not to releaseis once more the discretion of the courts.
The concurrence level between therecommendations made in reports andeventual sentence given is 60% - 75%. Thisis an indication that the social reports dohave a bearing on sentencing.

iii) Probation Orders
Probation orders are empowered under
the Probation of Offenders Act, Chapter 64- Laws of Kenya. This act was passed on
12th December 1943 and probation services
were formally in use from 1946. Since then,the courts have utilised probation orders
as an alternative to custodial sentencing.
Overtime the proportion of probation
orders relative to custody has stayed as aratio of “one probation order for every four
to five prison sentences”.
The structure put in place to implement
this non-custodial court order covers thewhole range of offence spectrum and isestablished in the whole country with a

The Probation services has been
providing this information as reflected in
the following statistics: Year
1995
1996
1997
1998

Enquiries
Conducted
10,507
10,497
9,652
9,903

Order Percentage
Made
7,624
75.6
7,804
74.3
7,204
74.6
7,274
73.5

Provision of information to courts is acore function and a major pre-occupationof probation officers. Expenditure incurred
gathering information accounts for up to
one third of the time and other resources
available to the Department.

The cases awarded probation orders
u n d e r g o c o m p u l s o r y, m a n d a t o r ysupervision period of six months to three
years depending on the circumstances ofeach offender. This supervision period
confers necessary contact between theprobation officer and the probationer.
Coupled with the conditions listed in theorder, probation officer is able to use subtle
social work skills to extract conformity andcorrect behaviour.
The contact period is therefore the basisof social work arrangements that are

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RESOURCE MATERIAL SERIES No. 57
deemed useful and beneficial to theprobationer. Probation orders as practised
have the following advantages going for
them:
-

-

-

-

-

-

Probationers remain based in thecommunity during the duration of theorder.
Probationers stand to benefit fromany rehabilitation efforts designed tohelp overcome wrong behaviour.
Av e r a g e c o s t o f s u p e r v i s i n gprobationers in the community perclient is very low compared withcustody.
Probationers are prevented fromcontamination with criminals and thestigma associated withimprisonment.
Probation orders are made in respectof any offender regardless of sex, age
or religion.
P r e s e n t l y, t h e D e p a r t m e n t i s
handling a total workload of:

Men
7,931

Boys Women Girls Total
2,097 2,016
400 12,444

With a workforce of 300 probation
officers, this translates into a ration of 4070 probationers per probation officer.
Comparatively therefore probation orders
are easier to manage, relatively cheaper interms of cost-effect and gain social
acceptance readily when the community isproperly sensitised.

b) Holding Capacity:
Daily average - Prisoners - 30,00040,000
Daily average - Probationers 12,500-15,000
Ratio:
One probation officer for 40-70
probationers
One prison officer for 3-7 prisonersc) Daily average costs:
About Kshs. 130/ per prisoner perday
About Kshs. 35/ per probationer
per dayd) Budget allocation per annum:
Prisons - 65%-68%
Probation - 4.5%-5.5%iv) Community Service Orders
The Community Service Order Act No.
10 of 1998 became law on December 31,
1998. The Minister proclaimed it
operational on July 23, 1999 and it wasformally inaugurated on December 29,
1999.
The basic features of the new act arethat:-

The following tables ably demonstrate
the above conclusion:a) Costs:
Staff
No. inPercentage
Strength Establishment
Ministry
22,451100%
Prisons
15,283
68.1%
Probation760
3.4%
Others
6,403
28.5%

-

-

It is a non-custodial sentence ofthe court.
It will normally attract the lessserious offences that lead tooffenders being imprisoned.
Offenders will submit to provide
unpaid labour in the community.
The supervising officer will be a
volunteer member of thecommunity.
The sentence will be judicial
driven.
The probation officer will be thelinkman between the courts, theoffenders, and the volunteer.

This programme is new and its impact

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115TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
as an alternative to custody is potentiallypromising as the initial statistics indicate.
Today over 4,000 offenders have gone
through this programme and presently
there are 1,500 CSO on supervision andperforming unpaid work.
v) Aftercare Services
The aftercare work with offenders istechnically difficult. It involves trying toresettle offenders who have already beenin prison. These ex-prisoners are released
earlier by quasi-judicial recommendations
made by various discharge boards.
The aftercare categories are:
1. Borstal inmates discharged forone or two years supervision.
2. Psychiatric criminal offenders
released but subject tosupervision.
3. Long term prisoners released but
subject to supervision.
These three categories account for
600-1,000 daily average per annum.
Probation Service therefore
constitutes a key role in non-custody
management. The data available
shows that the workload stands at:
1. Probation orders on supervision
12,444
2. Community service orders on
supervision
1,500
3. Aftercare supervises
800
Total on supervision (average)
14,744
Ratio of officer per supervisee isgreater than50
The capacity to hold more supervisees
is already stretched to the limits and any
more added workload would entail injectionof more personnel and more resources
especially reliable transport and officeaccommodation.
V. SUGGESTED WAY FORWARD
The administrative structure for aneffective and efficient administration ofjustice already exists. The process is welllaid out and has been rehearsed often
enough to provide confidence in the public
and trusted working arrangement. It is
however the case that the justice that is
supposed to reassure the victim and thevillain ends up being suspect and cause forpublic dissatisfaction. This has led tounwarranted over use of prisons and theconsequent overcrowding.
The following suggestions could remedy
the situation if applied with utmost goodfaith by all stakeholders: a) There is need for more use of noncustodial combination orders so as toreverse the monopoly currently
enjoyed by custody orders.
b) There is need to devise a proportional
and pre-determined fines tariff withconsideration for ability to pay.
c) There is need to separate the run on
the mill petty persistent offenders
who engage most of the resources.
This will redirect efforts to combating
serious crime.
d) There is need to use more diversion
strategies for the untried suspects
and other low rated offences.
Attention and resources to be given
to combating crimes such as pollutionof environment, drugs offences,frauds, white-collar crimes and otherfelonies.
e) There is need to use more community
strategies in crime prevention andtreatment of offenders. Probation
orders, community service orders,combination orders, fines would be

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RESOURCE MATERIAL SERIES No. 57
effectively utilised in this direction.
f) The courts to be sensitised to use
more pre-trial and pre-sentence social
reports as provided by probation
officers and others. The reports serve
to inform the courts on any given
offender appearing before themagistrate.
g) There is need for accelerate use ofearly release programmes and hence
cut back on the overall length ofsentence served in prison.
Non-custodial options have elsewherebeen demonstrated to work given the rightapproach by stakeholders. There is need
therefore to have the priorities right in thearea of criminal justice administration.
Sources:
1. Prevention of Crime and Treatment of
Offenders Seventh United Nations
Congress in Milan, Italy 26 August to
6 September, 1985.
2. Society Against Crime - Penal Theory
now edited by Howard Jones - Penguin
Books.
3. A Non-Treatment Paradigm for
Probation Officers - AE Bottom andWilliams McWilliams.
4. Ministerial Rationalisation and Staff
Rightsizing (OVPMOHAH & S)
October 1999.
5. Probation of Offenders Act, Chapter 64,
Laws of Kenya.
6. Community Service Orders Act, No. 10
1998.
7. Prisons Act, Chapter 90, Laws of
Kenya.
8. U g a n d a P r i s o n s S e r v i c e P o l i c yDocument - 2000 and Beyond.
9. Probation and Aftercare Service
Annual Reports.
10. Others - MTEF - Medium Term
Expenditure Framework (2000-2002),
Probation Department Reports.

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