Alex (not his real name), a man described as bright with big dreams found himself in trouble one fateful night.
Instead of taking the safe route, he got caught up in a misunderstanding that led to a minor offence. The law caught up with him.
When he was brought before the court, the judge saw potential in him and offered him a chance to redeem himself through a non custodial sentence instead of imprisonment.
A non custodial sentence refers to an alternative sentence to imprisonment.
In such a case, when someone is convicted in court, the judge can give them a non custodial sentence - an alternative to a prison sentence where convicts could get a fine or need to do community service.
Andrew Mungai, the assistant director at Probation and Aftercare Services has described non custodial sentences as an opportunity given to a convict to serve time in the community.
This is aimed to preserve the family unit, to make sure that if you're a first-time offender, or a special needs offender in regards to age or if you are sickly, you get to serve time in the community rather than in prison.
"Research has shown that imprisonment doesn't always work. For medium to low-risk offenders, non custodial sentences are ideal. Violent and high-risk offenders need to be taken away," Mungai says.
How non custodial sentences came about
According to Mungai, it first started in America, where non custodial measures were tried and victims were found to have reformed and the process was also cost-effective.
"In Kenya, it started with juveniles and women, in a connotation that probation is associated with children. It started as a programme for the youth but it works for all offenders regardless of age and gender," Mungai explains.
He says the programme was formed by the Probation of Offenders Act, Cap 64, Laws of Kenya, which was enacted in 1946 but the service was operational from 1947.
Mungai says the non custodial programme's main agenda is to provide rehabilitation to the offenders through their mandate, 'kurekebisha na haki.'
He says the programme aims to reintegrate the offenders back into the community.
Advantages of the programme
Mungai says the programme has various merits that come about from the programme that are derived from it.
First, it helps to decongest prisons by giving people second chances as in the case of first-time offenders or if the circumstances that led to the offence are given consideration by the judge.
Secondly, it helps preserve one's status back in the community in order to avoid discrimination and seclusion that is experienced by ex-conflicts after they have been released from prison.
The programme is cost-effective since maintaining someone in prison is costly.
This is because with non-custodial sentences, you reside in your home, and can do your own things but report periodically to the probation office.
"Research has shown that non-custodial sentences are more effective in reducing repeat offences. That is where the world is moving after research saying prison is like a revolving door - you go and come back again - we have to change the way we do things."
Who is eligible?
According to Mungai, Cap 64 says all offences that attract three years and below can benefit from non-custodial sentences through probation services.
"If the sentence exceeds three years, but the judge or magistrate rules that you as the offender are eligible for the non custodial sentence, such an exception can be made," he says.
He says all offences are applicable to a non custodial sentence, except in cases such as the Sexual Offences Act which stipulates a minimum of a 20-year sentence.
The probation officer highlights a similar instance of capital offences like robbery with violence or murder where offenders are eligible for life sentences.
He says that for the two instances, the only way one can pass for a non-custodial sentence in any of the scenarios is when it is under the discretion of a judge or magistrate.
"Such instances of 15 years or more for sexual offenders is something judges have been up against saying there needs to be a review of the Sexual Offenses Act of 2006 as it limits the disposition of justice."
Mungai says the Probation of Offenders Act Cap 64 stipulates that the non-custodial sentence runs from six months to three years as provided by the law, under the Community Service Orders (CSO) of 1998.
CSO can be from one day to three years. Here you do some work in a public institution and is a programme headed by a judge, he explains.
He notes that for an offender to be granted a non-custodial sentence, several considerations are made.
For instance, the judge considers if you are a first-time offender, the type of offence and the circumstances leading to the offence.
Factors such as family preparedness to receive the offender's community acceptance and whether the offender is remorseful for the offence committed are also put into consideration.
"We do civic assessment to determine if the risk level is high, low or medium, all at the discretion of the judges for they are the ones who make the decisions," Mungai notes.
What happens after the non custodial sentence?
The probation officer says the court refers probation officers to do a report, and from it, they do assessment screening on the offenders.
"It is not everyone who will be referred to us by the judges, for some, they might be found suitable to end their sentence," he says.
"It starts with the court and ends with the court. Non custodial sentence as per the penal code is one of the sentence repositions. The way you may be fined, you'll be given conditions, and discharged, the same way you'll be given a custodial sentence. It is all provided for by the law, made possible by the judges."
He says that while an offender is undergoing their sentence, their file is said to be active and it is based on scores in regards to the offender's compliance with the stated regulations of probation.
Mungai says they can go back to court seeking revocation of that order, in an instance where the offender was not reporting to the probation offices.
He says if it was well, the offender is said to have successfully completed the sentence and their file is closed.
Mungai says if you have been convicted on a non custodial sentence, go for a certificate of good conduct and provide a letter from the probation office showing you have successfully completed your sentence, you can be granted the certificate, unlike the individual who went to prison.