How disciplining errant child earned woman 25 years in jail

For most children in Kenya, spanking as a way of correcting unruly behaviour is an ordinary part of their experience, both in school and at home.

Inflicting this kind of corporal punishment is routine; it can be brutal and has never been a problem in most societies. Most parents may have borrowed the concept of corporal punishment to correct children by caning in religious books as recorded in Proverbs 23:13-14, which recommends caning to correct a child. 

In most societies, parents who do not spank their children are considered spoilers.

Although caning was banned in Kenyan schools in 2001, corporal punishment, including caning, is still practised in primary and secondary schools across the country.

However, do you know that caning of an errant child as a way of punishing him or her can land you in jail?

A woman has been jailed for five years after pleading guilty to the offence of assaulting her daughter.

Jailed for 25 years

The woman was initially jailed for 25 years by a magistrate’s court but the High Court last week reduced the sentence to five years.

The woman was charged with the offence of causing grievous harm, contrary to Section 234 of the Penal Code.

At the time of taking plea, the woman pleaded guilty to the charge. But she defended herself saying that her intention was to punish the child for her own benefit and not to harm her.

After listening to the case, the trial court considered the offence and circumstances in which it was committed to be of a reckless and unlawful nature, calling for a stiff, long custodial sentence.

The court then ruled that the evidence against the woman was overwhelming and jailed her for 25 years. Her plea that she was merely correcting the minor fell on deaf ears.

The woman, who has been in prison for the past two years, lodged an appeal where she asked Malindi High Court Judge Reuben Nyakundi to review the sentence.

Her submissions for a revision hinged on the grounds that the trial magistrate failed to take into account that she was remorseful for her actions and the reason she pleaded guilty.

“The punishment as inflicted was motivated by a desire to correct the truancy behaviour of the minor but I accidentally inflicted serious harm,” said the woman.

Pre-sentence report

On the other hand, she claimed that the impugned sentence was passed without taking into account the pre-sentence report.

The woman said she is remorseful for the offence and the psycho-traumatic effect occasioned her own child. 

However, the court observed that the degree of harm and violence the woman meted out against her defenceless, innocent daughter was uncalled for and did reflect the sentence imposed by the trial court.

The court did not agree with the woman that the punishment was meant to correct the child.

“This to me was a deliberate assault against a child of tender age from a person with the responsibility to protect and ensure the best interest and welfare of the child is realised,” said the judge

In determining the revision case, Justice Nyakundi put into consideration various aspects that govern cases of this nature.

The High Court asked itself whether the trial court, in determining the appropriate sentence, considered relevant aggravating factors both general and those specific to the type of offence.

Also, the court asked itself whether the mitigating factors and personal circumstances would have resulted in a lower sentence and, finally, whether in the totality of the evidence, the sentencing court ensured that it is proportionate to pass the sentence to punish the offending behaviour of the woman.

Justice Nyakundi noted that it is not in dispute when considering the sentence, that the trial court factored in the seriousness of the offence and the woman’s culpability in breach of trust as a parent to commit the offence.

No previous conviction

However, the court observed that from a preliminary review of the record, the woman had no previous conviction although her action indicated higher hostility to the victim.

“In my view considering the post-conviction pre-sentence report, there is sufficient prospect of rehabilitation of the woman  and appropriate measures ought to be taken to promote victim-offender mediation to restore corresponding trust set out in the probation report,” said the judge.

“It’s unavoidable that certain steps ought to be taken to address the offending behaviour which would result in an upward adjustment and improvement of relationship of mother-child reunion,” added the judge.

Of concern to the judge was that the extent of the problem with this sentence is the precise impact the woman’s long incarceration would have on her children, including the victim.  The judge said that the stigma surrounding the offence, to both the victim and the woman, adds to the feeling of isolation.

“Having a parent found guilty and sentenced to 25 years' imprisonment must have come as a shock to the victim and the residual fear of separation and alienation for that period of incarceration. Speaking generally to the facts of this case, incarceration of the appellant serves more of an answer to the state of her wrongdoing than to meet and how best to repair the harm caused to her child,” said Justice Nyakundi.

What needs to be clarified in this case, according to the judge, is whether the psychological effects of separation, risk of relationship breakdown, risk of the victim not being taken care of by the foster institution and her vulnerability, are a compelling interest that could have been weighed against the long incarceration period.

Best interests of victim

The judge was of the view that a trial court has a judicial duty to pass sentence that takes into full account the best interests of the victim as defined in Section 4 of the Children’s Act, which include looking at the woman’s compatibility with the victim, her abilities, character and temperament and the impact thereof on the victim’s needs and desires.

A factor for concern, according to the judge, is the court’s obligation to mirror on the woman’s insight into understanding and sensitivity to the child’s feelings as well as her ability to provide for the victim’s emotional and psychological well-being and security.

Justice Nyakundi warned that in such cases, the trial court must therefore guard against relying on factors which only influence imposition of incarceration sentence.

According to the judge, it was necessary for the trial court to intervene if it is deemed to be in the interest of the victim and that in regard to this sentence, the trial court was under an obligation to strive to minimise any such disruptions as a result of the offending behaviour of the woman.

In recognition of the importance of these principles and the issue of incarceration of the woman as a care giver to the victim, the judge noted that the court looks at reformation and integration of the woman as a balancing act to have the sentence reduced to a short term period.

“With this in mind, the appeal on sentence partially succeeds by reviewing the period of 25 years and substituting it with a lesser period of five years with effect from October 8, 2018. The measure to revise the sentence is designed to meet the legislative objective to punish crime and criminal conduct of the woman and to rehabilitate the offender from her criminal disposition to become a responsible and accountable mother to her children,” ruled the judge.

In addition, the judge recommended that the director of probation and after care services, in conjunction with the Director of Children's Services, should offer appropriate remedial assistance during the interim period to lessen the culpability of the woman in future, with emphasis on giving due respect to dignity and paramount best interest and welfare of her children as human beings.

Justice Nyakundi concluded that the rehabilitation roadmap by the two entities should cover a wide range of activities, including psychological intervention for both the victim and the appellant and cognitive behaviour change to truly ensure parent-child relationship to reduce the risk of re-occurrence of the offence.

[email protected]