A Study on Community Service Order in Uasin Gishu County in Kenya

Table of Contents

1.0 CHAPTER ONE: INTRODUCTION
1.1 Background to the Study
1.2 Statement of the Problem
1.3 Research Questions
1.4 The Objectives of the Study
1.5 Hypotheses prepositions
1.6 Justification and Significance of the Study
1.7 Scope of the Study
1.8 Outline of Chapters

2.0 CHAPTER TWO: LITERATURE REVIEW AND THEORETICAL FRAMEWORK
2.1 Introduction
2.2.1 Historical Background of Punishment
2.2.2 Various Perspectives of Punishment
2.2.3. Punishment as Retribution
2.2.4 Punishment as Deterrent
2.2.5 Punishment as a Rehabilitative Measure
2.2.6 Desistance rehabilitative measures
2.3 Development of Community Service: International Perspective
2.3.1 Community Service Experience in North America
2.3.2 Community Service Experience in New Zealand and Australia
2.3.3 Community Service Experience in Western Europe
2.3.4 Community Service in Ireland
2.3.5 Community service experience in Zimbabwe
2.3.6 Community service Experience in Uganda
2.4 The Kenyan Experience with Community Service
2.4.1 Prison reforms in Kenya
2.4.2 Probation Sentences as a means of decongesting prisons
2.5 Gaps in literature
2.6 Reparation and Restorative Justice
2.7 Theoretical framework
2.7.1 Behaviourist Theories in Working with Offenders
2.7.2 Social Learning theories
2.7.3 Social Cognitive Theory
2.7.4 Pro-Social Modelling

3.0 CHAPTER THREE: RESEARCH METHODOLOGY
3.1 Introduction
3.2 Geographical Location of the Study Area
3.3 Research Design
3.4 Target Population
3.5 Sampling procedure and sample Size
3.5.1 Sample Size
3.6 Methods of data collection
3.6.1 Interview schedule
3.6.2 Interview guide
3.6.3 Observation
3.6.4 Focus Group Discussions
3.6.5 Key Informant Interviews
3.7 Reliability and validity of Research Instruments
3.7.1 Validity of Research Instruments
3.7.2 Reliability of research Instruments
3. 8 Methods of Data Analysis
3.9 Problems encountered in the field
3.10 Ethical considerations

4.0 CHAPTER FOUR: PRESENTATION AND DATA ANALYSIS
4.1 Introduction
4.2 Background information of the respondents
4.2.1 Sex of the respondents
4.2.2 Age of the Respondents
4.2.3 Marital Status of the respondents
4.2.4 Level of Education of the respondents
4.2.5 Occupational Status of respondents
4.3 Community Service Order
4.3.1 Respondents' Knowledge of community service order
4.3.2 Kinds of Offences Committed by Community service offenders
4.4 Community's, stakeholders Attitudes and Perceptions towards Community Service
4.4.1 Attitudes To Community Service Order
4.4.2 Key Informants Perception towards Offenders on Community Service
4.4.3 Perception of Victims towards Community Service Order
4.4.4 Perception of Offenders and Ex-offenders regarding Community Service
4.4.5 Benefits/Strength of the Community Service Programme
4.4.6 Benefit to the Community
4.4.7 Benefits to the Offender
4.4.8 Community service programme as a way of reconciliation between offender and the victim
4.4.9 Preferred mode of sentence in the judicial system
4.4.10 Offenders prior knowledge on community service order
4.4.11 Community service and reformation of the offenders
4.4.12 Recommended Offenders for Community Service Intervention
4.4.13 Weaknesses of the Community Service Programme
4.5 Overall Effectiveness of the Community Service Programme
4.5.1 The Community
4.5.2 The Victims
4.5.3 The Offender
4.5.4 The Judiciary
4.6 Critical appraisal of community service and rehabilitating offenders
4.7 Challenges facing Community service programme
4.8 Research prepositions

5.0 CHAPTER FIVE: SUMMARIES OF THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
5.1 Introduction
5.2 Summary of the findings
5.3 Conclusion
5.4 Recommendations
5.5 Suggestion for further study

REFERENCES

INTERNET SOURCES

1.0 CHAPTER ONE: INTRODUCTION

1.1 Background to the Study

Community service programme is the newest mode of sentencing option in the administration of justice in Kenya. It is a non-custodial sentence for non-serious offenders, and any court of law as discretion to convict an offender into this sentence (Riechi, 2004). The efficacy and effectiveness of community service order is examined in this study. The concept of what constitute a crime is influenced by culture and historical perspectives. Some actions are criminal in one culture but not in others. In Egypt and Sudan female circumcision is legal while, in England and many other countries it is prohibited. Changes overtime in our ideas of what does or does not constitute a crime reflect humanitarian concerns, scientific advancement, industrial progress as well as increased affluence. Crime thus can be considered as a social construct, a product of social and cultural influence rather than a universal truth (Mushanga, 1976).

The consensus view states that a society’s legal system is based on an agreement amongst most of its members about what behaviours will not be tolerated and should therefore warrant punishment (Russel,1992). This view sees the aim of a legal system as a means of preserving a stable society and is more or less of equal benefit to all its citizens. The conflict view (Russel, 1992) a sociological approach rooted in Marxism philosophy of 1875, takes a very different approach, which maintains that law benefits some far more than it benefits others. According to this approach, there are many competing groups within the society, groups such as the unions, industrialists and professional bodies which are in conflict with each other because some people are wealthy and powerful than others. Criminal laws exist to protect the rich and powerful from the remainder of the population. In this premise, the ruling group secures its interest at the expense of the underprivileged members in a society (Russel, 1992; Dwyer, 2001).

During the Victorian era (1800s) it was believed that it was possible to spot a criminal by his or her physical features. This idea was known as physiognomy. This meant that a person’s character and intellect as well as intention could be read in their appearance, on their heads and faces. The pioneer of this view was an Italian army doctor; Cesare Lambroso (1876). Who argued that some people were born with a strong, innate predisposition to behave antisocially (Mushanga, 1976). With the advent of Colonial and post–colonial period in Kenya, the laws governing man’s activities were written down in form of statutes (Daily Nation Sept. 8, 2006). These statutes were meant to regulate citizen’s daily activities and show what legal omissions and commissions were. The sanctioning system also changed. This saw the emergence of the courts of law, where magistrates would preside over cases. This replaced the African Elders and their Councils (Mbiti, 1969).

Over the years the criminal behaviour and pattern in man has changed in many ways. His activities on earth have been changing. The changing nature of criminal complexities and their occurrence has led to a need for reforms. In the African societal and social set-up, offences were dealt with depending on the nature of crime committed. The council of elders was authorized to hear all complaints on commission and omission, and then arbitrate. In this set-up criminals were punished within the limit of the community who took full responsibility. In essence, the community and the elders prevented recidivism and accommodated the reformed offenders, for example the Nchuri Njege among the Meru community and kokwet among the Nandi community (Mbiti, 1969; Clifford, 1974; Russel, 1992).

With the adoption of the court system, alternative methods of dealing with crimes and criminals were set up. The prisons were also established for those found not fit to live within the community. The prisons acted as places of confinement of offenders for punishment and rehabilitation. In the courts, there are different methods of disposal of cases, depending on the gravity, seriousness and nature of the crime, for example unconditional discharge, fines and bonded to keep peace for a specified period (Community Service in Practice, 1997).

Custodial sentence was the preserve for the leadership in the olden kingdoms who would confine any dissenting person until his/her relatives paid ransoms. Also due to frequent raids and attacks, captives of wars were confined in the king’s palace for sacrifices to gods and even in exchange for specific conditions especially among the Ibo of West African, Buganda and the Busoga of East African Countries (Mbithi, 1969). The Community Service Order represents a shift from the more traditional methods of dealing with crime and the offenders towards a restorative form of justice that takes into account the interests of both the society and the victim. The introduction of this non-custodial option was as a result of the realization that the problem of crime cannot effectively be solved by incarceration and fines alone (Government report on Community Service, 2000; Dwyer, 2001).

Basically, the Community Service Order provides an alternative to physical imprisonment and is particularly geared to benefit first and the youthful offenders. It is supposed to give an offender the opportunity to reflect on her or his wrongdoing and appreciate the effect this has on other people after guidance and counselling. Most importantly, the offender is not only kept out of prison where s/he would otherwise come into contact with bad elements, but s/he is made to pay reparations for his/her wrongs to the society by doing work that directly benefits that society. It can be an exacting form of punishment and is not intended to be an easy way out for the convicted persons. The Community Service Order also helps to reduce the ever increasing prison population and can thus save the taxpayers millions of shillings that go toward running prisons. Equally, of importance is the expectation that the convict avoids stigmatization that normally follows imprisonment (Oguk, 2000).

The Community Service Order seeks to avoid contagion effect of crime by ensuring that the convicted person is punished within the society while still maintaining family ties and undertaking usual and personal responsibilities in his/her well known surrounding. The involvement of the community in the rehabilitation process particularly, during the offender’s performance of community service task, is expected to have deterrence as well as reforming effect on the offender (Daily Nation 8, 2006).

1.2 Statement of the Problem

In Kenya, the attempt by the government to introduce penal reforms within its criminal justice system dates back to the early 1960s. The use of non-custodial measures initially targeted the curbing of overcrowding in prisons and its associated effects such as high expenditures incurred by the government in running the prisons.

According to Riechi (2002) and Mukemo (2000), a programme known as Extra Mural Penal Employment (EMPE) was introduced under Section 68 of the Prison Act Cap 90 of 1963. The Extra Mural Penal Employment (EMPE) was intended to consider all categories of offenders who were to serve a period of six months or less in prison and all responsibilities, including its management and supervision of offenders, were left to the prison department. Community service as an alternative to imprisonment, at its inception, was taken up very enthusiastically by the judiciary as part of the reform of the criminal justice system in Kenya. The Community Service Orders Bill was drafted and enacted into law and adopted on the 31 December 1998. It was gazetted on the 23 July, 1999 and it provided a platform for the establishment and introduction of the Community Service Orders Programme in Kenya. However, its implementation as an alternative to confinement is currently proceeding at a rather slow pace. Kenyan prisons continue to feel the impact of physical incarceration that has caused severe overcrowding, poor health conditions within prisons and general risk of insecurity to both the inmates and their handlers. It is evident that despite imprisonment and confinement, acts of recidivism have been on the increase (Oguk, 2000).

It is with this background, that community service order is being examined in this study with regard to its administration, applicability and efficacy in relation to rehabilitating offenders. The offenders’ rehabilitation in their known environment is regarded as effective means in curbing crime and reducing the cost of running prisons. Though the program came into effect in 1998 (Community Service Order Act No. 8, 1998) it has not been fully evaluated and its role in reduction of crimes is still debatable (Daily Nation, September. 8, 2006). The Community Service programme is not always administered to every offender, as sentencers consider the seriousness of the offence, including the rehabilitative status, application of treatment plan, purpose, nature, and appropriateness as well as its effectiveness in reforming the offender (Community Service in Practice, 1997). The court may at its discretion make a community service order requiring the offender to perform community service tasks comprising of unpaid public work within the community for a period not exceeding the term of imprisonment for which the court would have sentenced the offender. Persons or convictees sentenced to three years imprisonment or less are eligible for community service but the offence must first be regarded as ‘non-serious’ like being drunk and disorderly, stealing small quantities of food, trespass on a railway line, possession of traditional brew and gambling (Community Service Orders Act, 1998). The overall aim of undertaking this study was to establish whether community service and rehabilitation of offenders is effective with regard to recidivism, rehabilitation noticeable positive/negative change in behaviour of the offenders.

1.3 Research Questions

The following research questions were formulated in this study;

1. Is Community service order /programme effective in reforming offenders?
2. What are the communities' attitudes and perceptions towards community service?
3. What are the kinds and patterns of crimes/offences committed by people who are sentenced by court to do community service?
4. What are the salient and general challenges in crime correctional agenda of community service programme?
5. What are the constraints faced by offenders in the community work placement?
6. How can the implementation of Community Service Order be improved?

1.4 The Objectives of the Study

The primary objective of the study was to investigate the operationalization of the Community Service Order and rehabilitation of offenders with specific focus on Eldoret Municipality, Uasin Gishu County. Specific objectives are:

1. To assess the effectiveness of the Community service programme in rehabilitating offenders.
2. To highlight the communities’ attitudes and perceptions towards community service.
3. To investigate the general kinds of crimes/offences committed by people who are sentenced by courts to do community service.
4. To evaluate the general and salient challenges facing the correctional agenda of community service programme.
5. To identify the constraints faced by the offenders in the work placement agencies.

1.5 Hypotheses prepositions

For the purpose of this study, the researcher formulated the following hypotheses prepositions to guide the study.

1. Sentencing offenders to community service work instead of physical imprisonment promotes reconciliation and reintegration into the community
2. Sentencing offenders to community service work instead of physical imprisonment reduces recidivism.

1.6 Justification and Significance of the Study

This study contributes to a deeper understanding of the concept of community service order and its role in reformation of the Prison Act and other related laws in Kenya. The findings can be used to improve the community service order/programme, and serve as a basis of educating and sensitizing the public to accept positively community service programme. The study should also act as the basis of improvement of the community service order by highlighting its key challenges and weak points as well as gaps that act as recommendations that are aimed at improvement on the performance of the administration of justice to those directly or indirectly dependent on the service. The study also provides further understanding of constraints and difficulties faced by the judiciary and other stakeholders in implementing the Community Service Orders Act, 1998. Its on this basis that the current study add some more knowledge to the already existing stock; thus leading to coordinated activities and policy formulation in a logical set-up

In addition, the study also provides relevant information to other researchers and scholars interested in this general field of criminal justice administration and crime reduction. The findings of this study can be useful in improving the activities of the government and especially the Department of Probation by highlighting the constraints encountered by agencies that host the offenders on community service order. Although, community service came into effect in 1998 in Kenya, it is only recently that it is receiving increased attention by the stakeholders namely; magistrates, the offenders, community service officers, the prosecutors and the general society. This research identifies the problems, gaps and issues that hinder the full success of the Community Service Order.

Lastly, with the development of international repealing bodies like Penal Reform International (PRI), findings of this study provide a framework for their incorporation in the country’s rehabilitation process. Overall, the study generates several recommendations that will be useful in the general crime prevention in Kenya as well as in decongesting prisons that are currently overcrowded.

1.7 Scope of the Study

The study highlights the operationalization of the Community Service Order and offenders’ rehabilitation within the Kenyan society. The study was restricted geographically to Uasin Gishu County and it covered the major estates within Eldoret Municipality: Huruma, Maili Nne, Mwanzo, Kamukunji, West Indies, Kipkaren, Pioneer, Langas, Town Centre, Chepkoilel and Airstrip. Conceptually, this work is limited to the operationalization of the Community Service and rehabilitation of offenders’. The researcher covered the stated Estates due to its accessibility, availability of institutions that hosted respondents/offenders. It does not claim the complete representation of the prison system in Kenya. However, there is a linkage between the community’s involvement in rehabilitation of the victim’s and the victims’ negative or positive response and this has wider and general implication. The estates in Eldoret were chosen for the study after familiarization at the courts and the District probation office. In Uasin Gishu county, there are 8 (eight) courts and they could generate enough respondents for the study. The area under study was also accessible, although there were minor difficulties during the rainy season in moving around the estate.

1.8 Outline of Chapters

The first chapter outlines the Background of the study, the Statement of the Problem, aims of the Study, the Research Questions and the Significance of the Study. Chapter Two presents a review of pertinent and related literature. The literature focuses on introduction of the Community Service Order and rehabilitation of offenders, the penal field of non-custodial sentencing and administration of justice. Other issues examined are offender placement and custodial rehabilitation of offenders. The chapter also deals with diverse issues in the application of non-custodial sentences in administration of criminal justice and current reformative methods with regard to meeting international standards. Chapter Three describes the methodology used in presenting the Community Service Order and rehabilitation of offenders’. The chapter also explains the research setting, the study design, the sample size, the research instruments and the procedure followed in obtaining the information. Chapter Four provides detailed thematic accounts of the analysis, interpretation and discussion of the empirical field findings. Chapter Five provides the summary, conclusion and recommendations of the study.

2.0 CHAPTER TWO: LITERATURE REVIEW AND THEORETICAL FRAMEWORK

2.1 Introduction

The study reviewed a number of publications (articles, seminar papers, government policy papers, conference proceedings, training manuals, legislative documents, research reports, business journals, textbooks, newspapers, google search and periodicals) that shed light on the Community Service Order and rehabilitation of offenders within the Kenyan society.

2.2.1 Historical Background of Punishment

Throughout history, imprisonment as a punitive measure has been used as a form of punishment by different societies. Prisons traditionally have been conceived as places where social deviants are sent and retained for the sake of protecting society’s harmony and preserving the rights and dignity of other members. The common attitude held was ‘lock them up and throw away the keys’. This was regarded as the only way these violators of the law could learn and refrain from committing further crimes. As institutions of punishment, the origin of prisons is traced from the Roman Empire. According to Mushanga (1976) the world’s earliest prison was the Mamertine Prison, which was built in the ancient Roman Empire in 7 B.C, although there are claims by historians that this practice was started for religious dissenters in ancient Greece by Pope Clement X1.

During those early days, prisons were regarded as torture facilities and places for subjecting offenders to hard labour. Individual criminals were punished by the state through direct physical pain. Punishments varied, but the most common ones included branding, whipping, mutilation and hanging (Morris et al, 1990). In certain instances prisoners were given knives and swords and were ordered to torture each other, they were at times boiled to death. This was all done in public viewing. The different kinds of punishments were intended to humiliate the criminal by subjecting his/her body to unbearable suffering and pain (Russel, 1992).

It should be noted that although there were prisons before the 18 Century, these were used exclusively as pre-trial places or detention centres for vagabonds and misfits pending the time when the judge/magistrate would be on the circuit in the area (Burstein, 1977:10). By the 18th Century, there was increased reliance on the use of prison and incarceration as the central mode of dealing with adult offenders especially after the decline of transportation of vagabonds and the unemployed as sources of labour to far away countries especially the new found lands (Garland, 1985). This became a common practice, for example, in England where it was in accordance with the Victorian penal system. All those people who were rounded up for committing crime served two years of imprisonment minimally with or without hard labour. This kind of isolation had an impact on criminals and caused mental affliction through the denial of freedom.

However, by the end of the 19th Century, reforms had started to be introduced and alternatives to incarceration such as imposition of a monetary fine were being encouraged. Detention in penal institutions however, continued to be the core of the entire system. In most cases, those arrested were so poor that they could not afford to pay fines and were thus imprisoned. Therefore, regardless of such developments, the official policy in Britain, for example, still remained incarceration (Garland, 1985).

Nevertheless, the incarceration was still regarded as a humiliation to fellow human beings because the prison was intended to help the deviants to reform. This was supported by Michel Foucault’s view as quoted in Garland (1985:31) that “the prison from the start was a technique of transformation and not a punishment, directed at the criminal’s nature and not his act”. Such sentiment could have been a contributing factor, for example, that led the American statesman, Benjamin Franklin, in 1787 to host a meeting of prominent citizens at his home to discuss possible alternatives to the then current methods of punishing convicted criminals (Burstein, 1977). According to Carter et al (1976) this resulted in a radically new approach based on principles of democratic belief that “deviance required reformation as much as punishment or as a substitute for punishment”. Hence, this alternative approach to the then current methods of punishing convicted criminals were aimed at bringing in the element of rehabilitation as a component of the prison, as well as calling upon the American government to make prisons better places for the deviants to stay. This new philosophy is said to originate from the Christian belief that prolonged isolation encourages the prisoner to involve him or herself in prayer, meditation, reflection and penance (Burstein, 1977:11). It was intended to show the authorities that punishment should not only be directed at the physical body but also to the mind and the soul in a more humane way. This contributed to radical transformation in how the prisoners were handled in the whole of America, resulting in the formulation and adoption of new legislation and thus began the prominence of the penitentiary reforms.

However, it was later realized that solitary confinement had negative effects on the life of the prisoner, leading to depression, stigma, delusion and to some extent madness and hence creating more serious problems to individuals, families and communities involved (Garland, 1985). Community-based correctional strategies are numerous, encompassing a range of humanitarian, fiscal, and pragmatic motives. First, with the growth of the humanitarian movement in the administration of justice, the notion of mercy and compassion combined with consideration of human dignity, which began to infiltrate into sentencing practices and correctional decision-making, led to consideration of non-custodial sentences. For offenders who represented diminished risk to society, it was felt that custodial sentences and even coercion might be unnecessary. Second, for an untold number of lesser and situational offender like pickpocket, vagabonds, trespassers; many reformers held that penitentiaries can be “school of crime”-which would impede successful rehabilitation and community reintegration. Third, from an economic point of view, it would cost far less to supervise criminals in the community than to maintain them in institutions. Furthermore, the families of those sent to prison often became financial burdens to the community and state. Fourth, many community-based correctional strategies are deemed to have the practical value of helping offenders to achieve positions of respect in their neighborhoods and communities. Fifth, with the recent trends in prison overcrowding in Kenya, or altogether eliminating the offenders’ period of confinement in Kenya has been viewed as a more pragmatic approach to the management and control of the less seriously involved criminal offenders. And sixth, since the onset of the 1960s, there seems to have developed a “last resort” correctional philosophy which maintains that the traditional avenues of punishment and correction have been working and new, Innovative approaches must be tested (Hudson and Galaway, 1990).

Bazemore and Maloney (1994) believed that crime is social, not biological, in origin and that, with a few exceptions, crime lies within the boundaries of normal human behavior. According to him, no act is naturally immoral or criminal. He viewed crime as anti-social acts that reflect current morality, which changes continually along with the social structure. He further stated that upper-class individuals will commit crime if they sense a good opportunity to make a financial gain and if their lack of moral sense enables them to violate social rules. The drive towards success at any price pushes wealthier individuals toward criminality. However, he recognized that official crimes are a function of poverty. It is not the absolute amount of wealth that affects crime, but its distribution of available resources. Walgrave (1995) observed that the nature of a society controls the direction of its criminality. He stated that criminals are not social misfits, but products of the society and its economic system, “capitalism”. He further stated it’s the “mode of production” that has relatively produced a high level of crime and violence.

Currently, most prison authorities across the world work on a system not only of punishment as retribution but also for purposes of reform, rehabilitation, deterrence and incapacitation (Tomasic & Dobinson, 1979:3). These should be regarded as the ultimate aims of punishment. Carpenter in Garland (1985:60) states that “to consign a man to prison is commonly to enroll him in the criminal class…prisons the world over produce the very thing they are designed to prevent”. This has been among the factors that have made the use of prisons criticized throughout history and has led people to become disillusioned and determined to advocate for alternatives, especially when dealing with minor offenders.

2.2.2 Various Perspectives of Punishment

Various theories have been postulated to support the use of punishment. These theories play a significant role as far as reform in the criminal justice system is concerned. The principal consideration is that punishment is either for prevention (deterrence) and retribution or reformatory (rehabilitation) purposes. Rabie (1977:1) argues that punishment have been traditionally developed as moral justification of the nature of offence and they portray vital clues as to the purpose of punishment and as such have been of importance and concern to the legislators, the police, prosecutors, probation, courts and prison administrators.

2.2.3 Punishment as Retribution

According to the retributive theories, the form of punishment given is justified because it assumes that the offender is being treated in the same way he or she deserves to be punished. The communities and the victims are more interested in seeing the offender serving a more serious punitive punishment that must be as painful as imprisonment. Hence retribution is intended and seen to make the offender experience a similar or even a more punitive punishment than what the victims underwent through. In this instance, the society believes that the injustice suffered and brought about by the crime committed is removed. As Gardiner in Rabie (1977) stated: “The desire to make the offender suffer, is not because it is good for him/her, not because suffering might deter him from further crime but simply because it is felt that he/she deserves to suffer and the suffering is thus the essence of retribution”. It also presupposes that the punishment given to the offender may have an educative effect on others. Therefore, people would be in danger of moral deterioration if those who commit crimes were left unpunished by the law.

In conclusion, as argued “The retributive view is that punishment is justified on the grounds that wrongdoing merits punishment and it is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing” (Baird and Rosenbaum, 1988:8).

2.2.4 Punishment as Deterrent

The Deterrence theory is intended to discourage both the offender and the general public from recommitting or being tempted to commit crimes. Punishing the offender by sentencing him or her to serve punishment is aimed at giving the offender such an unpleasant experience that he or she will not want to commit crimes and receive similar sanctions in the future. On the other hand, there is also the general deterrence, whereby the general population is discouraged from committing crimes if they see the consequences of doing so. Therefore the punishment that is given to the offender(s) acts as a deterrent to the entire public (Baird and Rosenbaum, 1988:8). Rabie and Strauss (1985:30) stress that deterrence as a form of prevention can take other forms, like incapacitation, that is also intended to prevent the occurrence of crime by reducing the offender’s chances to commit further crimes. For example, if an offender proves to be a habitual criminal, she or he can be sentenced to life imprisonment or sentenced to death.

Imprisonment as a form of punishment plays multifaceted roles such as rehabilitation, or reformation, deterrence (preventive) and retribution. However, there are noncustodial mechanisms that, if effectively applied, can achieve the same results without necessarily sentencing offenders to prison (Rabie and Strauss, 1985).

2.2.5 Punishment as a Rehabilitative Measure

This perspective is not only intended to make offenders serve their punishment by sending them to prisons, but also aims at ensuring that the offender is reformed and rehabilitated into a law abiding person. The prison as an institution is supposed to provide social rehabilitation programmes to inmates, such as vocational training and sports, which help inmates develop and acquire new skills so that when they leave prison they are able to be self-reliant and productive to their communities and their families (Feldman, 1996:333). Activities such as sports help inmates to develop a sense of responsibility and instill discipline in them.

It should be emphasized that other services provided by trained personnel, like social work, should include guidance and counseling. This process of preparing inmates should be started immediately after an offender is convicted to prison and a follow-up, after-care services should continue after he or she leaves, and is intended to help the ex-offender to be accepted and resettled back in his/her community. However, in most cases, prisons in the developing world rarely offer such reintegration programmes for inmates, due to financial constraints. According to Sekhonyane (2005:6), most African governments are faced with financial constraints, which render them incapable of allocating sufficient funds to the prisons to run such programmes.

2.2.6 Desistance rehabilitative measures

There is a growing body of literature proposing that the focus of probation work be shifted away from ‘offending related’ to ‘desistance focused’ matters. (Farrell, 2004). This literature says that understanding how and why offenders stop committing crime is crucial for the development of effective crime prevention and criminal justice practices. According to Bottoms et al (2004) the study of desistance properly includes any significant lull or crime-free gap in the course of a criminal career.

Farrell from his study of 199 offenders (Farrell, 2004: 228) argues that while cognitive behavioural work is not to be abandoned in that it correctly focuses on increasing offenders human capital (i.e. their own skills), it is unable to address the wider social and economic needs - what he calls social capital - of offenders. It is social capital that is necessary to encourage desistance. Helping people develop human capital (personal skills, capacities and knowledge) can involve a range of both one to one and structured group programmes. These can include motivational interviewing, structured programmes and pro-social modelling.

In social capital theory the core idea is that social networks have value. According to Putnam (Putnam, 2000) social capital refers to connections among individuals-social networks and the norms of reciprocity and trustworthiness that arise from them. He distinguishes between Bonding social capital and Bridging social capital. Bonding social capital denotes ties between people in similar circumstances, for example family unit, close friends and neighbors. Bridging social capital includes more distant ties like acquaintances, loose friendships, and relations with workmates. The Desistance literature seems to suggest a refocus on the traditional ‘welfare’ aspects of social work, working with the client on family problems, employment, addictions and overcoming what Rex (Rex ,2001) calls social obstacles.

The Liverpool Desistance Study (Maruna et al, 2004) highlighted the importance for ex-offenders of achieving ‘redemption’ through engagement in ‘generative activities’ which help to make sense of a damaged past by using it to protect the future interests of others. Research indicates that it is constructing a new identity as a person with something to contribute that distinguishes those who ‘go straight’ from those who do not (Maruna, 2004). According to (Toch, 2000) involvement in altruistic activity provides offenders with a sense of accomplishment, grounded increments in selfesteem, meaningful purposiveness has restorative implications. Community Service seems to have relevance in offering ‘redemptive’ opportunities echoing findings that offenders valued work they could recognize as being of benefit to the recipients (McIvor, 1992).

2.3 Development of Community Service: International Perspective

This section outlines a brief history of Community Service internationally and assesses the Kenyan case in international context. The section also reviews the literature on the enhancement of Community Service through the application of rehabilitative practices. Formal Community Service programmes began in the United States with the establishment of the Alameda California programme in 1966(Harris and Lo, 2002). This programme focused on female traffic offenders who could not pay a fine, and for whom a jail sentence would have created a hardship. The growing reputation of the Alameda programme led to other court referral programmes developing and replicating the same across America, with the feature of voluntary participation by offenders as an alternative to fines, or in some cases, imprisonment.

In Harris and Lo (Harris and Lo, 2002) however, there is a claim that the adoption of Community Service in the United States has been localized and patchy, and not seen as a realistic option for serious offenders. According to the literature (McIvor, 1992; Hudson & Galaway, 1990; and Harris and Lo, 2002) Community Service was more enthusiastically embraced in Britain, proving to be a popular measure with the courts. The British experience served as a model for schemes that were subsequently developed across Western Europe. In Britain at this time, concerns were being expressed about the levels of overcrowding in prisons, the increased cost of incarceration, the recognition that imprisonment did not lead to less re-offending and that it had detrimental effects on individual offenders and their families (Home Office, 1969). Against this background the Advisory Council on the Penal System put into task the alternatives to custodial sentences. The council was chaired by Baroness Wootton and became known as the Wootton Committee. In the Council’s 1970 report, Community Service orders were seen as the ‘most imaginative and helpful’ of the committee’s recommendations (Advisory Council of the Penal System, 1970) and entered legislation with the 1972 Criminal Justice Act (Home Office, 1969).

A number of research studies such as those of (Morris and Tonry, 1990; Hudson and Galaway, 1990) have addressed facets of Community Service in many countries. The widespread appeal of this sanction lay in the possibility that it could fulfill many sentencing aims; punishment without the cost of incarceration, the offender being made more accountable to the community, and also rehabilitation of the offenders in order to reduce future re-offending. The ‘catch all’ nature of the sanction however contributes to difficulties in researching the many facets of Community Service and difficulty in measuring successful outcomes.

Smykla,(1990) states that “Imprisonment has been increasingly questioned as a rehabilitative technique for both juvenile and adult offenders”. People have argued that the prison experience often acts as a stigmatizing one, and at the end of serving the punishment, “the prisoner finds himself/herself labelled by the society as an undesirable or untrustworthy person despite the fact that s/he has been ‘rehabilitated” (Tomasic & Dobinson, 1979:3). Many have therefore come to believe that the community, and not the prison, is the appropriate locus for most corrections. This disillusionment of society towards prison’s failure to control crime rates and help offenders to reform worldwide resulted in a search for other possible alternative measures. Community service orders are one of the alternatives that have been adopted and implemented by many countries. In the western world, some European countries, like France, incorporated the use of community service orders in their criminal justice system to address the problem of prison overcrowding and reduction in government expenditure in 1983, borrowing a leaf from the Canadian experience where implementation of this programme has been in practice since the 1960s. In Italy, community service was introduced in 1980, Portugal in 1983, Norway and Denmark in 1984 and Finland in 1994. In the Netherlands it was introduced in 1989 as a court order officially called Community Service, the Performance of unpaid work for the general good (Klaus, 1998).

In the Eastern part of the world, especially within the Eastern block after the collapse and disintegration of the Soviet Union (USSR) in 1980s, many countries in Central and Eastern Europe and Central Asia faced economic hardships due to economic recession, leading to cuts in the financial allocation on social welfare programmes.

The resulting effect was an increase in crime rate. Most of the crimes committed, however, were minor and non-serious, and were committed by first time offenders (Pease, et al 1975). Community service as a non-custodial measure was introduced in Kazakhstan in 2001, the Russian Federation in 2001, in Latvia in 1999 and in the Czech Republic in 1997 (Stern, 2002). In 2001, a meeting organized by the Organization for Security and Co-operation (OSCE) was held in Bucharest, Romania, to address the problem of detention and to seek alternatives. This wave of change regarding penal reforms in the criminal justice systems was not only a challenge for developed countries of Europe, but has been Africa’s concern as well.

Different authors (Magezi, 2003:119; 2003:62 and the Community Service Act 5/2000) regard ‘community service’ as “a non–custodial punishment by which, after conviction, the court, orders for the offender to serve the community rather than undergo imprisonment”. Zedriga (1998:8) defines community service as “a scheme in which carefully selected persons who have committed non-serious criminal offences like petty theft or offences, causing minor damage to property, instead of being committed to totally establish physical imprisonment to under take penal obligations, are ordered to perform unpaid work of benefit to the community”. Morris and Tonry (1990:152), on the other hand, define community service as “a programme through which convicted offenders are placed in unpaid work positions with non profit- or taxsupported agencies to serve a specified number of hours performing work or service within a given time limit as a sentencing option or condition”. From the above definitions, one can conclude that scholars concur that community service is an optional alternative to imprisonment, in which the offender undertakes to perform free work that is beneficial to the community instead of going to prison.

2.3.1 Community Service Experience in North America

Community service was first established and has not been extensively developed for serious adult offenders (Morris and Tonry, 1990). There are wide variations in schemes across different states. Some states use Community Service as a stand-alone sentence, as parole conditions or usually as a condition of probation. A detailed study of 14 American Community Service programmes by Hudson and Galaway (Hudson and Galaway, 1990) identified two types of programmes. One group of programmes combined Community Service with other sanctions, including financial restitution and served primarily more serious offenders (those who had committed felonies-offences punishable by sentences of more than one year). A second group of programmes required offenders to complete Community Service only and mostly served by less serious offenders. From their review of these programmes they identified a number of development and research needs: For example, it was noted that this programmes were vague in terms of clarifying why Community Service might be a more appropriate sanction than others for accomplishing specific penal purposes.

There was also a need to define the actual offender population served by Community Service programmes and address whether the population being dealt with in the programme was appropriate to the programme purpose. More information was needed on the perceptions of offenders and other citizens to the Community Service sanction. A study of Federal Probationers who received court ordered Community Service in the Northern District of Illinois reviewed the perceptions of probationers and host agencies regarding Community Service orders. More than two-thirds of probationers interviewed perceived their Community Service orders as an opportunity to give back something to the society they had wronged. The authors (Allen and Treger, 1990) suggest that the principle of reform through Community Service may accidentally prove to be a powerful rehabilitative sanction and create change in the criminal justice process.

In relation to Juvenile offenders, Community Service seems to have become more refined and developed in America where, 99% of youth courts use Community Service as a sanction (National Youth Court Statistics, 2006). The Urban Institute Study (Butts, Buck and Coggeshall, 2002) suggested that Community Service might play a positive role in lowering recidivism rates among the young offenders. They found that Youth Courts promoted volunteerism thus more effectively connecting young people to their communities and that Youth Court participants tended to develop problem-solving and decision making skills.

In the United States two models have emerged to attempt to make Community Service with juveniles more effective: Community Service Learning and the Civic Mission of Schools. Both these models apply goals, principles, and methodologies of school based service learning and court based restorative justice, principles and strategies to court mandated Community Service (Service Learning Network, 2006).

These models suggest that schools and juvenile justice groups can help develop competent and responsible citizens by providing opportunities for Community Service that allow participants to engage in meaningful work to address real community needs and reflect upon their activities. Educational modes of Community Service tend to explore how the wrong someone has committed an offence affecting the victims, the community and the offender thus enabling young people to grasp the consequence of misbehaviour and provide offenders with opportunities to ‘give back’ to those most impacted by crime - their victims and the community at large.

In Canada, similar to the US, the introduction of Community Service and its administrative structure varies by province. Community Service in Canada arose from judicial initiative and is a condition of probation. It is a private service run by nonprofit agencies that arrange for other local non-profit organizations to provide work for and supervise all probationers doing Community Service (Menzies and Vass, 1989).

2.3.2 Community Service Experience in New Zealand and Australia

Community Service came into effect in New Zealand on 1st February, 1981. It was the first sentence in New Zealand in which, part of the responsibility for the supervision of the offender was given to the community. It was also the first sentence for which the consent of the offender was to be obtained before its imposition (Ministry of Justice New Zealand, 1999).

In New Zealand, the sentence of ‘Periodic Detention’ was already in existence since1962. This sentence required an offender to report to a Periodic Detention work centre for up to 18 hours per week to undertake community work outside the centre. A breach of Periodic Detention is punishable by imprisonment of up to 3 months. In contrast, a breach of Community Service is punishable by a fine only. Unlike Periodic Detention, an offender sentenced to Community Service would not be in custody or under the supervision of a statutory officer, and there was no element of probation involved as the case with periodic detention. It was argued that Community Service instills in an offender a greater sense of community responsibility.

It seems that Community Service and Periodic Detention have not made any significant reductions in the prison population as were envisaged. A survey in 1984 (Liebrich, Galaway and Underhill, 1984) suggested that there was no consistent view as to where Community Service fell in the sentencing tariff. Community Service as an alternative to custodial sentence was the least to have been accomplished.

In a study project on community sanctions in, Auckland New Zealand (Asher and O’Neill ,1990), findings suggested that Community Service was viewed as a ‘soft option’ inappropriate for “serious offenders”, and was not perceived as a genuine attempt to involve the community. All Australian states and territories have Community Service in some form. Nowhere is it a specific alternative to prison, but everywhere it can be imposed instead of a fine. Community Service is a sentence in its own right in all jurisdictions except Victoria and Western Australia (Tomasic and Dobinson, 1979).

2.3.3 Community Service Experience in Western Europe

The development of Community Service in Western Europe was influenced by the popularity of the sanction in Britain. Community service order as a scheme was introduced in Switzerland (1964 for juveniles), West Germany (1975), Luxembourg (1976), Italy and The Netherlands (1981), Belgium, Denmark and Portugal (1982), France (1983), Norway (1984), Sweden (1992), Finland (1994) and the Czech Republic (1995) (Harris and Lo, 2002). In most European countries Community Service is used in lieu of short prison sentences (Toch H, 2000).

According to a study of Community Service in Finland (Muiluvuori, 2001) the assumption is that Community Service can affect offenders in a rehabilitative way and thus reduce recidivism. This study compares the subsequent recidivism of people sentenced to Community Service in 1991-1992 with recidivism of people sentenced to prison for a maximum of 8 months in 1992. The findings showed that recidivism after Community Service compared to recidivism after prison sentences was slightly less widespread. The author suggests that Community Service seems a suitable sanction, especially for sentenced people without previous prison experience. The study does not discuss any rehabilitative aspects of Community Service. A Swiss study (Killias and Ribeaud, 2000) also found lower conviction rates among offenders sentenced to Community Service than among those given short prison sentences. The results suggested that those randomly assigned to Community work rather than prison reduced delinquency more than the control group, and developed less negative attitudes towards their sentence and the criminal justice system. The study does not show why this outcome occurred. The authors suggest that offenders feeling that they had been treated fairly may well, impinge on later reduction of re-offending.

In 1973 the Community Service order was introduced on an experimental basis in six pilot areas and in the following year was extended to other parts of the country. It was introduced as an alternative to a custodial sentence, but there was confusion from the outset about whether it was a direct alternative to custody or could be used as a sentence in its own right. The Criminal Justice Act, 1991 clearly established Community Service as a sentence in its own right rather than an alternative to custody by introducing a ‘combination order’ where Community Service could be combined with other community sentences. A further change occurred in 2001 when Community Service became Community Punishment, perhaps in an effort to make the sanction more attractive to sentencers (Menzies and Vass, 1989).

To work efficiently and effectively Community Service must be flexible and able to bring together the interests of the sentencer, the offender and the community (Hine and Thomas, 1996). To evaluate success from the viewpoint of the different stakeholders, a wide range of variables would have to be assessed. Research studies have addressed just one or two of the many facets of Community Service (Carnie, 1990; Skinns, 1990; Knapp et al, 1992; Duguid, 1982). The research projects have attempted to evaluate a wide range of the elements of Community Service - one in Scotland (McIvor, 1992) and one in England (Pathfinder Projects Final Report, 2002).

McIvor’s (McIvor, 1992) research aimed to identify effective Community Service practice by studying twelve schemes in four local authority areas from 1986-1991 in Scotland. The programme of study evolved into a series of studies evaluating different aspects of Community Service. She has attempted from her study to define not simply whether Community Service ‘works’ but to define effectiveness more broadly and explore under what circumstances and for which offenders it works best. This contrasts with the ‘What Works’ literature, which focuses on the rates of reconviction as the only measure of positive outcomes. In summary her main findings suggest that offenders most valued placements which: Maximized their contact with the beneficiaries, enabled them to gain new skills and allowed them to engage in work they could recognize as being of benefit to the recipients. The importance of the offenders’ relationships with their placement supervisors was also stressed.

In an earlier study in 1975 of the first six schemes in England when Community Service was brought in on an experimental basis, an important observation was that the development of the relationship between the offender and his supervisor determined the success, although there were no direct questions that were asked about this (Pease et al, 1975).

Similar to McIvor’s (McIvor, 1992) and Pease’s (Pease, 1975) findings, Rex in a small study of 60 probationers (Rex, 1999) found probationers more willing to embark on sustaining a decision to stop offending where they felt positively engaged in the supervisory relationship and pro-social work. In a report dated 23rd December, 1909 (Departmental Committee on the Probation of Offenders Act, 1907) there is reference to the direct, personal influence, the Probation Officer can have on the offender as being very great. The report suggests that the Probation Officer must be endowed not only with intelligence and zeal but also with sympathy, tact and firmness.

In a more recent (Dowden and Andrews, 2004) report on a meta-analysis of the contribution of certain staff skills. The effectiveness of rehabilitative work with offenders was reflected. They define these skills as ‘core correctional practices’ which can be summarized briefly as effective use of authority, appropriate modeling and reinforcement, the use of a problem-solving approach and the development of relationships characterized by openness, warmth, empathy, enthusiasm, directness and structure. According to the authors this meta-analysis revealed that CCPs made independent contributions to enhanced effects of human service programmes and almost all CCPs were associated with significant reduction in the rates of reoffending. Their results suggest that the emphasis placed on developing and utilizing appropriate staff techniques has been sorely lacking within correctional treatment programmes.

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