Harsh provisions in the laws on alcohol consumption, sexual offences, traffic, the protection of wildlife and forests have resulted in the congestion of prisons, a judge has told a committee of the Senate.
Justice Luka Kimaru asked the Senate Ad Hoc Committee on Prisons to consider coming up with a policy on punishment to make it easier for the reform of those convicted and to give judicial officers leeway to give a variety of sentences.
He said that the minimum sentences provided for in the Alcoholic Drinks Control Act popularly known as Mututho Laws, the Sexual Offences Act, the Traffic Act and the laws on wildlife and forests have largely contributed to an increase in prisons' population.
"These Acts provide for minimum sentences, meaning that the court cannot exercise discretion to fit the crime with the punishment," said Justice Kimaru.
The judge is the chairman of National Community Service Orders Committee. The ad hoc committee was created in October 2015 after Senators approved a motion by URP-nominated Senator Fatuma Adan Dullo for the House to look into the state of prisons in the country.
The committee was asked to come up with recommendations on the policies and laws that can align current laws on correctional services with the Constitution and international standards.
The population of prisoners has increased from 32,000 in 2009 to 56,800 today, said the judge, with the increase attributed to the minimum sentences provided for in the laws.
"Some of the laws are so stiff that they don't take into cognisance the people who are likely to be caught in it," said the judge.
He gave the example of a case in Isiolo where an old woman was convicted and ordered to pay a fine of Sh100,000 or spend a year in prison for selling boiled eggs on the roadside.
The Isiolo County Assembly passed the law that imposes that punishment for selling food in unhygienic conditions. Those likely to be caught in those circumstances would not afford the Sh100,000.
The laws on forests also treat those collecting dry firewood in forests the same way as illegal loggers, which means that the needy end up being punished for such simple things as looking for firewood.
In the law on sexual offences, a 19-year-old would be jailed for a minimum 10 years for having sex with a 17-year-old regardless of whether it was consensual.
A young man of the same age would be jailed for life, or even sentenced to death, for robbery with violence, even when all he did was violently snatch a purse.
In such cases, judges find that their hands are tied and they cannot exercise discretion in sentencing.
Justice Kimaru said about 10,000 of the 56,800 prisoners are such cases.
"Developmental age is not considered. They could just be gullible youth who are easily swayed. It's a waste of energy," said Clement Okech, the assistant director of probation.
Mr Okech said a study they carried out in 2009 showed that 92 per cent of remandees in prison at that time were below 35, meaning they were wasting their youth in jail, where they are also likely to get hardened as they come into contact with criminals.
"Determinate sentences with no regard to developmental age and circumstances may go contrary to the Constitution, which is friendlier towards reformation," said Mr Okech. Justice Kimaru and Mr Okech said an overarching policy on punishment to guide MPs as they prepare laws would give judicial officers some leeway to sentence.