A Probation Order is an order of the court with competent jurisdiction requiring an offender to be placed on probation supervision. The Probation Order is not a sentence but a conditional suspension of the sentence in which the court retains residual powers as so does not lose jurisdiction. It is a community rehabilitation order in which the Probation Officer plans with the offender for his/ her change. The offender must consent to the order and the conditions attached to it in addition to any other directions that may be given by the Probation Officer.
A Probation Officer is an Officer of the Court appointed under the Probation of Offenders Act Cap 64 (Laws of Kenya) to provide advisory information on offenders to court and other penal authorities and to supervise and/or rehabilitate offenders placed under his/ her charge for a given period of time.
A Probation Officers Report (POR) is a pre-sentence report prepared by a Probation Officer after conducting social inquiries on an offender. It embodies the subject of offender personality, family background, circumstances in which the offence was committed, attitude of the offender, victim statement, any risk factors and a clear recommendation on the best way an offender should be sentenced with a view to securing his behaviour change and community protection. Other reports written by a Probation Officer are Community Service Officers Reports, Bail Information Reports, Sentence Review Reports, among others.
A Probation Order may be granted to an offender for a period ranging between 6 months and 3 years. This sentence may be adjusted between these periods as demand may dictate, as long as it does not exceed three years. Subject to treatment response, a Probation Officer may apply to the court to have the order extended but cannot go beyond the 3 years. An offender serving a Probation sentence is also called a probationer.
A Probation Order may be granted to any offender who has been convicted for any offence other than a capital offence. However, this is subject to the discretion of the court and consideration is given to each individual and the type of offence committed. Serious offences, which are not capital offences, may not be acceptable. However, this is subject to public policy as there are dangers that may be posed to the community by the offender as well as dangers posed to the offender by the community, should the offender be granted a Probation Order.
A probationer while serving the Probation sentence may change residence but this is subject to the probationer's application, or to what the Probation Officer may consider being in the best interest of the community, or to the offender and his continuation with probation supervision.
The Probation of Offenders Act CAP 64 (Laws of Kenya) protects discrimination of a probationer on account of his/ her conviction. A probation sentence enables one to continue performing his/ her normal duties so as to provide for his/ her dependents. The Probation of Offenders Act Cap 64 (Laws of Kenya) has two clauses that protect a probationer’s employability. Section 4 (1) (a) provides for placements of offenders on Probation Order without proceeding to a conviction which is normally a major hindrance to finding a job. And section 9 provides for the non-disqualification or disability of an offender on the grounds of conviction would be discriminative, thus enabling him/ her to charge his/ her duties like a non-convict. However, such non-discrimination or protection ceases upon a subsequent conviction or revocation of the Probation Order.
A Probation Hostel is an approved place of temporary stay for probationers whose home condition is not conducive for their immediate return. Such sojourn must be sanctioned by the court, as an additional order to be abided by during probation supervision. While staying in this residence, the Probation Officer is granted the opportunity to indulge the victim and/or the community for eventual peaceful co-existence upon the return of the offender.
Offenders (Probationers) who have been accorded a probation sentence may, subject to a court order, be committed to a Probation Hostel if the court is satisfied that his/ her interest and that of the community and/or the victim would best be served while at the Hostel. Such offenders often have problems with immediate return to the community owing to the nature of the crime they committed or are required to undergo some intense institutional counselling or skills development.
Subject to specific needs of a probationer, the court on the advice of a Probation Officer make an order requiring one to reside at a Probation Hostel for any period between one day to one year. This duration may be regulated subject to the circumstances at home that may be conducive for the offenders' return.
Parole is a conditional release of a prisoner before the end of a prison sentence. While Probation is an alternative to imprisonment for selected defendants who meet certain criteria. We currently do not practice parole in Kenya but offer voluntary aftercare supervision to long term prisoners who have completed their prison sentence.
No, a person does not escape punishment by receiving Probation. Some offenders choose to serve their sentence in prison in order to avoid Probation supervision. Probation has strict regulations and accountability requirements. Probationers must obey the law and be gainfully engaged or enrolled in school. Some offenders are required to pay restitution, as well as work a number of hours doing unpaid community service. Offenders serving Probation may not change jobs or move residence without the Probation Officer's permission.
ICan one who committed a serious crime due to unstable mind and who is fully recovered be accepted back in the community?
Psychiatric offenders or special category criminals may be released back into the community if the mental asylum/hospital in which they have been institutionalized is satisfied that they have gained stable health and the community/family are willing to accept him/her back. This however is subject to a special committee's review of individual cases and upon submission of a written report by a Probation Officer. Should they relapse in sickness then they must be escorted back to the mental asylum/hospital.
Community Service Order (CSO) is a non-custodial sentence made under Section 3 of the Community Service Orders Act No. 10 of 1998 (Laws of Kenya) by a court of competent jurisdiction requiring an offender to perform unpaid public work in lieu of imprisonment. The main focus of this sentence is to offer reparation to the community by the offender for the wrong done, while at the same time enabling the Community Service Officer to offer rehabilitative intervention to him/her.
A Community Service Officer is a Probation Officer appointed under Section 12 (1) of the Community Service Orders Act No. 10 of 1998 (Laws of Kenya). His/her duties are mainly to inquire into the suitability of an offender for the sentence and to supervise the offender serving a Community Service Order in conjunction with Community Service Supervisors.
A Community Serve Order may be imposed on an offender for a period of up to three years. Such duration is commuted into working hours as may be deemed necessary. The duration of the work an offender can perform per day will depend on arrangement with the Community Service Officer who takes cognizance that the quantity of work available. Community Service work must not exceed 8 hours a day.
An offender serving Community Service Order (CSO) may be required to perform unpaid public work such as construction or maintenance of roads, afforestation, environmental or water conservation works, work in a charitable institution; or may be required to render professional services in the area he/she is qualified. The work performed by offenders must be meaningful and tangible. The offender’s age, health, skills, physical fitness and education is taken into account when assigning work.
A Community Service Supervisor is a person appointed under Section 13 of the Community Service Orders Act No. 10 of 1998 (Laws of Kenya). A Community Service Supervisor is a volunteer in the programme and a beneficiary of community service. He/she is a member of the institution or placement agency to which an offender has been placed. His/her main task is to provide work and also give guidance on the work assigned to the offender. At the same time, he/she acts as the ‘eye’ of the Community Service Officer and reports back to him/her on how the progress of the offender.
Although a majority of first offenders who have committed less serious offences should be considered for a community sentence, those with previous convictions can also benefit from this program if it is deemed by the court that a Probation Order or a Community Service Order would be most appropriate given the circumstances. There is no hindrance to those with previous convictions in both the Probation of Offenders Act CAP 64 (Laws of Kenya) and the Community Service Orders Act No. 10 of 1998 (Laws of Kenya) to making such an order.
A Community Probation Volunteer commonly referred to as CPV is a person selected, trained and appointed by the Probation and Aftercare Service to assist a Probation Officer in exercising supervision of offenders serving various community supervision measures.