The notorious law: This is what has landed many Kenyan women in jail

• There are about 10,644 convicted women prisoners in Kenya
• More than 70 per cent of women imprisoned in Kenya violated the Liquor Act alone
• Most inmates complained of a feeling of bitterness, sadness and being miserable

Visit any women's prison, and you will be met by the hollowed out, pained expressions on the inmates faces.

There are about 10,644 convicted women prisoners in Kenya, according to data from the 2017 Economic Survey, published by the Kenya National Bureau of Statistics.
Women prisoners are the clear minority in Kenya's criminal justice system, which currently holds 71,789 male prisoners.

But the offences that women are imprisoned for are very different from that of men, a recent audit of Kenya's criminal justice system shows, and give us a hint of how one piece of legislation can have a huge impact.

Unlike men who tend to be imprisoned for property offences such as theft and burglary, violent offences such as assault, and 'offences against the state' such as trading without a licence, for women, the story is very different.

More than 70 per cent of women imprisoned in Kenya are behind bars as the result of violating the Liquor Act alone, essentially brewing and selling alcohol without a licence, presumably brews like busaa and chang'aa. For men, Liquor Act violations make up just 29 per cent of all convictions.

The female share of all the other convictions does not surpass 10 per cent.
For most of these women, brewing alcohol is done out of necessity, to make ends meet in a harsh economy, the judiciary audit found.

The report acknowledged that granted, alcohol consumption and abuse is a public health concern, particularly as the unregulated brews sometimes lead to deaths and maimings. In response, authorities often "clamp down" on informal alcohol production and sale in a knee-jerk manner.

"Yet 4 million Kenyans are said to consume such products, usually without serious incident, and providing an entrepreneurial income stream to many," the report stated.

One might interpret this finding to be justifying or tolerating alcoholism and killer drinks. But this is not the case.

 The audit suggested that the criminal justice system was perhaps not the right mechanism to address the public health and social concerns that alcohol consumption poses, urging that a national conversation needs to be undertaken on this issue, and urged a change in "the tendency to downplay alcohol's economic value to small-scale traders without an associated consideration of how to generate alternative income sources."

Even going by data from the Kenya police, the most common reason for detention was for the offence of being drunk and disorderly, accounting for 15 per cent of all arrests.

If we include similar offences like loitering, causing a disturbance, being a nuisance, and offensive language or conduct, it suggests that nearly a quarter, 25 per cent of all people in police custody are there for what is essentially anti-social behaviour.

In addition, 'state offences' account for another 10 per cent of arrests. These are crimes against which the state is the 'aggrieved', and are related to offences like conducting a business without a license (i.e. hawking and the like), illegal gambling, illegal grazing and hunting, harvesting sand without a license, and so on.

Over-policed

In any case, the Liquor Act alone falls under this category, and is responsible for the majority criminal convictions of women in Kenya, suggesting that if this one law was repealed or modified, 70 per cent of women inmates in Kenya could be free.

It also suggests that criminalisation and prosecution of such petty offences in Kenya makes the whole law enforcement system almost entirely a war against the poor, and that Kenya may be over-policed in terms of entrepreneurial activity, and under-policed in terms of serious crime.

After offences to do with the Liquor Act and other 'state offences' women are also arrested for crimes such as prostitution, child neglect, child trafficking, fraud and homicide.

Offences relating to drugs amounted to 8 per cent of women held on remand, and even then 58 per cent of these were for mere "possession" or "being in a place of narcotic drugs".
There are 18 women's prisons in Kenya; Lan'gata and Shimo La Tewa maximum security women's prisons house the biggest number of women inmates, they have a combined population of between 2,000 and 3,500 offenders.

The average Kenyan woman prisoner is young (aged under 40), has little or average education, is a rural urban migrant and is likely to be an unemployed single parent.

A typical day in the cells

Overcrowding is a big challenge in most prisons, leading to poor sanitation, the spread of communicable diseases and lack of personal dignity of the inmates.

Women can have their children in prison with them until they are four-years-old. The older children stay in a nursery section during the day, where they are watched by a few of the inmates and guards. Currently there are about 90 children living in Langata Prison.

A typical day for the inmates begins around 6:30am when they wake up. The cell doors are opened at 7am, and roll call is at 8am. Then the inmates have their breakfast and go to their assigned tasks. They might be working in the kitchen, on the farm or on various projects.

Suicide

One study by scholars from Chuka University found an extremely high level of depression among female inmates. According to the findings, most female inmates slept most of the time and thought about committing suicide as a result of
imprisonment. Entering the criminal justice system can be a disruptive and disorganising experience; prisons are extremely stressful for inmates partly because they have little control over their environment.

The evidence of depression is usually related to experience of sudden deprivation of liberty, autonomy, and other necessities of life that are not common in a prison environment.

Most inmates complained of a feeling of bitterness, sadness and being miserable as well as hating the prison life and the lack of freedom. Other reported hopelessness, loss of interest, fear of death and restlessness, and suicidal thoughts.

Janet Mwendia* a former jailbird says that those feelings are inevitable.

"You look around and wonder how you will live out your entire life behind bars. And you need to escape. I fantasised a lot about the ways I could end my life. Turning to religion saved me."

These findings are doubly tragic considering that most criminal convictions of women are a result of just the Liquor Act alone, by which the majority of women are simply trying to provide for their families.

The Kenyan state clearly has a legitimate interest in regulating various types of commercial and other activity, the judicial audit found. However a national conversation needs to be begun around the appropriateness of using the criminal law, and in particular, the deprivation of liberty, in order to do so.

In many countries such "regulatory" offences would not be dealt with through the criminal courts but would be dealt with administratively such as through payment of a fine. Public education, taxation and cultural change may work better in terms of regulating alcohol abuse as a social concern.

Other suggestions to deal with women offenders have leaned more towards the use of non-custodial sentences in the interest and welfare of children and society more broadly (90% of women prisoners are mothers), such as community service, conditional discharge, and probation.

Christine Mungai is a writer, journalist and a 2018 Nieman fellow at Harvard University.