Borstal Institutions Act

Section 1. Short title Section This Act may be cited as the Borstal Institutions Act

Section 2. Interpretation Section In this Act, except where the context otherwise requires— “After-Care Committee” means a committee appointed under section 21 ; “authorized officer” means a police officer, a prison officer or a probation officer ; “Board of Visitors” means a board of visitors appointed under section 20 ; “borstal institution” means a borstal institution established under section 3; “borstal order” means an order under section 6 or section 7 directing that a youthful offender be sent to a borstal institution; “Commissioner” means the Commissioner of Prisons; “conviction” includes a finding of guilt by a juvenile court ; “juvenile court” means a juvenile court within the meaning of the Children and Young Persons Act ( Cap. 141 ); “licence” means a licence granted under section 26(1) ; “principal borstal officer” means a person appointed by the Commissioner to be a principal borstal officer of an institution and includes a principal borstal officer (women); “prison officer” has the meaning assigned to it in the Prisons Act ( Cap. 90 ); “probation officer” has the meaning assigned to it in the Probation of Offenders Act ( Cap. 64 ); “removal order” means an order made...

Section 3. Power to establish borstal institutions Section 3(1)(a) establish borstal institutions at such places as he thinks fit; or Section 3(1)(b) direct that a borstal institution shall cease to exist as a borstal institution . Section 3(2) Every borstal institution shall include the grounds and buildings within the institution enclosure and also any other grounds or buildings belonging or attached hereto and used by inmates or the staff of the institution.

Section 4. Requisites ofborstal institution Section proper sanitary arrangements, water supply, food, clothing and bedding for the inmates thereof;

Section 5. Court before sentencingyouthful offenderto consider his history Section Before sentencing a youthful offender , a court shall consider the evidence available as to his character and previous conduct and the circumstances of the offence, and whether it is expedient for his reformation that he should undergo a period of training in a borstal institution .

Section 6. Committal ofyouthful offendertoborstal institution Section 6(1) Where the High Court or a subordinate court of the first class or a juvenile court is satisfied, after considering the matters specified in section 5, that it is expedient for his reformation that a youthful offender should undergo training in a borstal institution , it may, instead of dealing with the offender in any other way, direct that the offender be sent to a borstal institution for a period of three years. Section 6(2)(a) Where it appears to any court other than the High Court or a subordinate court of the first class after considering the matters specified as aforesaid, that a youthful offender should, for his reformation, undergo training in a borstal institution , it may, instead of dealing with the offender in any other way, after recording the same, commit the offender in custody to a juvenile court having jurisdiction in the area, for sentence . Section 6(2)(b) The juvenile court to which the youthful offender is committed shall itself consider the matters specified as aforesaid, and, if it is satisfied that it is expedient for his reformation that the offender should undergo training in a bors...

Section 7. Power of court to directyouthful offenderundergoing imprisonment to be sent toborstal institution Section The officer in charge of a prison in which a youthful offender is imprisoned in execution of a sentence of imprisonment may bring him, if he has not then attained the age of eighteen years, before the High Court or a subordinate court having jurisdiction to try the offence of which he was originally convicted, and such court may, after considering the matters specified in section 5, direct that instead of undergoing the residue of his sentence in prison he be sent to a borstal institution for the unexpired residue of a period of three years commencing on the date upon which the sentence of imprisonment began to run.

Section 8. Court to ascertain that accommodation available Section Before directing that a youthful offender be sent to a borstal institution , the court shall ascertain whether accommodation is available in a borstal institution for the youthful offender , and shall not so direct unless it has found that accommodation is so available.

Section 9.Commissionerto determineborstal institutionto whichyouthful offenderto be sent Section Every youthful offender directed to be sent to a borstal institution under this Act shall be sent to such borstal institution as the Commissioner directs.

Section 10. Duties ofsuperintendent Section The superintendent of a borstal institution shall supervise and control all matters concerning the institution, and shall keep or cause to be kept such records as the Commissioner may from time to time direct, and shall be responsible to the Commissioner for the conduct and treatment of staff and of the inmates under his control and for the due observance by staff and inmates of the provisions of this Act and of all rules, directions and orders made thereunder.

Section 11. Duties of medical officer Section 11(1) There shall be a medical officer stationed in or otherwise responsible for each borstal institution . Section 11(2) The medical officer shall be responsible for the health of all inmates of the borstal institution , and shall cause all inmates of the borstal institution to be medically examined on such occasions as may be prescribed. Section 11(3) A medical officer may, whether or not an inmate consents thereto, take or cause or direct to be taken such action (including the forcible feeding, inoculation, vaccination or other treatment of the inmate, whether of a like nature or not) as he may consider necessary to safeguard or restore the health of the inmate or to prevent the spread of disease. Section 11(4) All actions of a medical officer, borstal officer, medical orderly or other person acting under subsection (3) or in pursuance of directions given thereunder shall be lawful.

Section 12. Powers and duties of prison officers Section A prison officer on the staff of a borstal institution shall, in relation to the borstal institution and the inmates thereof, have the like powers, protections and duties as are conferred and imposed on him by the Prisons Act ( Cap. 90 ) in relation to a prison and prisoners therein, and shall be subject to the like prohibitions and restrictions (and liable to the like punishment for breach thereof), and be subject to the like provisions as to discipline, as are applicable in the case of prisons and prisoners therein under that Act.

Section 13. Removal orders Section The Commissioner may at any time, by order in writing called a removal order , order the removal of a person who is detained in a borstal institution to another specified borstal institution .

Section 14. Removal to hospital Section 14(1) Where an inmate of a borstal institution is so ill that he cannot be adequately cared for in the institution’s infirmary, the superintendent , on the advice of a medical practitioner, may order his removal to a hospital or other institution: Provided that in cases of emergency such removal may be ordered by the senior officer present without the advice of a medical practitioner. Section 14(2) Whenever the medical officer in charge of a hospital to which an inmate has been removed under subsection (1) considers that the health of that inmate no longer requires him to be kept in the hospital, he shall notify the superintendent of the borstal institution in which the inmate was previously detained, and that officer shall thereupon cause the inmate to be removed to the borstal institution if he is still liable to be detained there. Section 14(3) The medical officer in charge of a hospital shall take all reasonable precautions to prevent the escape of any inmate who is kept in the hospital under this section. Section 14(4) Nothing in subsection (3) shall authorize any act which in the opinion of the medical officer in charge of the hospital...

Section 15. Removal to mental hospital Section 15(1) Whenever a medical officer is of the opinion that any inmate in respect of whom a borstal order is in force is of unsound mind, he may by order under his hand in the prescribed form direct that such inmate be removed to a mental hospital within the meaning of the Mental Health Act ( Cap. 248 ) and be there detained, and such order shall be authority for the reception of that inmate and for his detention in that mental hospital until removed or discharged as hereinafter provided. Section 15(2) Where an inmate removed to a mental hospital under subsection (1) is, in the opinion of the person in charge of the mental hospital, no longer of unsound mind, the person in charge as aforesaid shall notify the superintendent of the borstal institution from which the inmate was removed, and the inmate shall then be delivered into the custody of the superintendent of that borstal institution if his borstal order is still in force, and if not so liable shall be released. Section 15(3) Upon the expiration of the period of detention to which he has been sentenced, section 30 of the Mental Health Act ( Cap. 248 ) shall apply to an inmate detained...

Section 16. Removal to leper settlement Section 16(1) Where a medical officer reports to the Commissioner that an inmate in respect of whom a borstal order is in force is a leper, the Commissioner may, subject to subsection (2) , by order in writing direct the removal of that inmate to a leper settlement, there to be kept and treated until cured of his leprosy or until such time as he ceases to be liable to confinement in a borstal institution, whichever is the earlier. Section 16(2) No order shall be made by the Commissioner under subsection (1) unless he has received notification in writing that the person in charge of the leper settlement to which he wishes to remove the leper is able and willing to receive the leper. Section 16(3) So long as the borstal order of an inmate who is in a leper settlement under this section remains in force, the person in charge of the leper settlement shall from time to time transmit to the superintendent of the borstal institution from which the inmate was removed a certificate signed by him that it is in his opinion necessary that he should remain in the leper settlement. Section 16(4) As soon as it ceases to be necessary, in the opinion of the p...

Section 17. Inmates to be subject toborstal institutiondiscipline Section Every inmate of a borstal institution shall be subject to the discipline of a borstal institution and to this Act and to all rules, orders and directions made thereunder during the whole period of his detention, whether he is or is not within the precincts of a borstal institution .

Section 18. Female inmates to be kept apart Section Males and females shall not be detained in the same borstal institution .

Section 19. Work Section Every inmate of a borstal institution shall be liable to perform such work as may be directed by the superintendent : Provided that an inmate shall not be required to perform any work, or any work other than light work, if the medical officer so orders.

Section 39. Return of person toborstal institution Section 39(1)(a) escapes from the borstal institution in which he is detained, or from any hospital or other institution to which he has been removed on account of his physical or mental condition; or Section 39(1)(b) runs away from the person into whose charge he has been entrusted under a licence ; or Section 39(1)(c) fails to return to a borstal institution on the revocation of his licence under section 27 or of his leave of absence under section 25 or on recall under section 29(2) , Section 39(2) Where any such person as aforesaid has committed any of the acts mentioned in subsection (1)(a) , the period of his detention in a borstal institution shall be increased by a period equal to the period during which he was unlawfully at large.

Section 40. Assisting escape and harbouring Section 40(1)(a) assists or incites a person in respect of whom a borstal order is in force to commit any of the acts specified in section 39(1) ; or Section 40(1)(b) harbours or conceals such a person who has committed any such act, or prevents him from returning, Section 40(2) If a court is satisfied, by information on oath, that a person in respect of whom a borstal order is in force has committed one of the acts specified in section 39(1) and that there is reasonable ground for believing that some other person, named in the information, can produce him, the court may issue a summons requiring that other person to attend at the court on a day specified in the summons and produce the person who has committed the act, and if the person summoned fails without reasonable excuse to comply with the summons he shall be guilty of an offence and liable, in addition to any other liability to which he may be subject under this Act, to a fine not exceeding one thousand shillings.

Section 41. Trespassing Section 41(1) Any person who without lawful authority enters or remains within the boundaries of a borstal institution or any place where inmates of a borstal institution are working shall be guilty of an offence and, if he refuses to leave when requested to do so, may be arrested without a warrant by a prison officer on the staff of the borstal institution or a police officer. Section 41(2)(a) takes a photograph of any inmate of a borstal institution ; or Section 41(2)(b) takes a photograph or makes a sketch, plan or other representation of any object or person within the precincts of a borstal institution , Section 41(3) Any person who is guilty of an offence under subsection (1) or subsection (2) shall be liable to a fine not exceeding two thousand five hundred shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

Section 42. Power of court to commit borstal inmate to prison Section If the Commissioner is of the opinion that any inmate of a borstal institution is of such a character, or has conducted himself in such a manner, as to render his detention in such borstal institution to be no longer expedient, he may cause the inmate to be taken before a court having jurisdiction to try the offence of which he was originally convicted, and that court may direct that the inmate, instead of undergoing the residue of his detention in a borstal institution , shall undergo a term of imprisonment not exceeding three years commencing on the day when the inmate began his detention in a borstal institution .

Section 43. Procedure onconvictionduring detention inborstal institution Section Except where it is otherwise provided in this Act, where a court convicts a person of any offence committed during the period of his detention in a borstal institution and sentences him to a term of imprisonment, such court shall take into consideration in assessing the length of the term passed the period of that person’s detention which remained unexpired at the time of such finding or conviction , and shall cancel the order for his detention in a borstal institution .

Section 44. No interference with control of person onlicenceor under supervision Section 44(1) When a person is absent from a borstal institution in pursuance of a licence , or is under supervision in pursuance of section 29 , no person whatever shall interfere with the control or supervision conferred in respect of the absent person by the licence or by the said section, as the case may be. Section 44(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding two thousand five hundred shillings or to imprisonment for a term not exceeding three months, or to both.

Section 45. Removal in custody Section to or from a borstal institution under the borstal order or under a removal order ; or

Section 46. Inmate ofborstal institutionin lawful custody Section A person who is detained in a borstal institution by virtue of a borstal order shall be deemed to be in the lawful custody of the superintendent , and during any period that he is in any hospital or other institution, a mental hospital or a leper settlement under section 14 , section 15 or section 16 he shall be deemed to be in the lawful custody of the officer in charge of the institution.

Section 47. Inmate required as witness Section 47(1) Whenever the presence of any inmate of a borstal institution is required by any court, such court may issue an order addressed to the superintendent requiring production before the court of the inmate in proper custody at the time and place named in the order, and the superintendent shall cause the inmate named in the order to be brought up as directed, and shall provide for his safe custody during his absence from the borstal institution . Section 47(2) Every such court may by endorsement on such order require the inmate to be again brought up at any time to which the matter may be adjourned.

Section 48. Apprenticeship Section If it appears to the superintendent that a person has behaved well while out on licence , the superintendent may on the recommendation of the After-Care Committee arrange a contract of indentured learnership or a contract of apprenticeship for him under the Industrial Training Act ( Cap. 237 ), and on such contract being arranged such person shall be discharged from the borstal institution.

Section 49. Prohibited articles and communication with borstal inmates Section 49(1)(a) conveys, supplies or causes to be supplied or conveyed to any inmate of a borstal institution , or hides or places for the use of any such inmate, any prohibited article; or Section 49(1)(b) places, where inmates of a borstal institution work, any prohibited article; or Section 49(1)(c) brings out of or takes into any borstal institution any prohibited article; or Section 49(1)(d) in any manner communicates with any inmate of a borstal institution , Section 49(2)(a) specifies the articles which are prohibited in borstal institutions; Section 49(2)(b) is written in English, Swahili and the language which the superintendent considers to be the local vernacular language; Section 49(2)(c) is signed by the Commissioner or the superintendent on his behalf; and Section 49(2)(d) is posted in a conspicuous place outside the borstal institution .

Section 50. Seizure of prohibited articles,etc Section Whether or not any criminal or disciplinary proceedings are commenced against any person, any prison officer on the staff of a borstal institution may seize any article found to be unlawfully in a borstal institution , and the superintendent may order its confiscation and it shall thereupon be forfeited.

Section 51. Unlawful possession of public property Section is found in possession of any article which has been supplied to a prison officer on the staff of a borstal institution for use on duty, or of any property belonging to a borstal institution , and who fails to account satisfactorily for the possession thereof; or

Section 52. Rules Section 52(1)(a) defining which types of offenders may be sent to particular borstal institutions; Section 52(1)(b) providing for and regulating the discipline and duties of borstal institution staff, and prescribing punishments for neglect of duty and other offences committed by any member of such staff; Section 52(1)(c) regulating the conduct, management and discipline of borstal institutions; Section 52(1)(d) providing for the maintenance, discipline, treatment and education, vocational or otherwise, of the inmates of borstal institutions, and regulating the punishment of inmates for breach of discipline, whether by loss of privileges, restricted diet, confinement or, in serious cases, caning; Section 52(1)(e) providing for the payment of youthful offenders for work done while detained in borstal institutions, and prescribing the conditions under which such payments shall be made; Section 52(1)(f) providing for the photographing of the inmates of borstal institutions; Section 52(1)(g) prescribing the manner in which Boards of Visitors shall discharge their duties; Section 52(1)(h) providing for the construction, equipment and supervision of rooms and dormitorie...

Section 20. Appointment ofBoard of Visitors Section 20(1) The Minister * shall, by notice in the Gazette , appoint a Board of Visitors for every borstal institution , and may, by notice in the Gazette , revoke any appointment so made. * Power delegated to the Permanent Secretary of the Ministry, by L.N. 692/1963 Section 20(2) A Board of Visitors shall consist of not less than ten persons. Section 20(3) Every Board of Visitors shall meet at least four times in every year.

Section 21. Appointment and duties of After-Care committee Section 21(1)(a) hearing complaints by the inmates of the borstal institution ; Section 21(1)(b) ensuring that the requirement’s of section 4 have been complied with and that the management of the borstal institution is proper in all respects; Section 21(1)(c) examining the punishment book; Section 21(1)(d) ensuring that no person is illegally detained in the borstal institution ; and Section 21(1)(e) bringing any special case and any matter affecting the welfare of inmates or staff of the notice of the superintendent (who shall inform the Commissioner ), and reporting thereon to the Board of Visitors . Section 21(2) For the purposes of this section, “punishment book” means a book in which the adjudication of disciplinary offences committed by inmates of a borstal institution is recorded.

Section 22.Board of Visitorsmay initiate inquiry as to age Section 22(1) If at any time after a youthful offender has been sent to a borstal institution it appears to the Board of Visitors or the superintendent that the age of the youthful offender is other than that determined by the court and that he was under the age of fifteen years or had attained the age of eighteen years at the time of his conviction , the Board of Visitors or the superintendent shall cause the youthful offender to be taken before a court having jurisdiction to try the offence of which he was originally convicted so that the question of his age may be inquired into anew. Section 22(2) Where a court before which a youthful offender is taken under subsection (1) finds that such youthful offender was at the time of his conviction under the age of fifteen years or had attained the age of eighteen years, it shall revoke the order for detention in the borstal institution and may pass such sentence as the court which tried the youthful offender might have passed on him, but without prejudice to anything lawfully done under the borstal order : Provided that the court in passing sentence under this subsection shall t...

Section 23. Appointment of ministers Section The Minister may, from time to time, by notice in the Gazette , appoint ministers of any religious faith to be ministers of a borstal institution .

Section 24. Power of Minister, judges and magistrates Section 24(1) The Minister, a judge or a magistrate may at any time visit any borstal institution and exercise all or any of the powers of the Board of Visitors , and may enter any observations he thinks fit to make in reference to the condition of the borstal institution and its inmates in a visitors’ book to be kept for that purpose by the superintendent ; and the superintendent shall inform the Commissioner of any observations so entered in the visitors’ book. Section 24(2) Deleted byAct No. 10 of 1983, Sch.

Section 25. Leave of absence Section The Commissioner may grant leave of absence to any inmate of a borstal institution for such period and on such conditions as he may think fit, and may at any time revoke such leave of absence for breach of its conditions and direct the inmate to whom the leave was granted to return to the borstal institution .

Section 26. Superintendent may grantlicence Section 26(1) The superintendent , on the recommendation of the After-Care Committee , may by licence under his hand permit any inmate who has been detained in a borstal institution for a period of not less than twelve months to live under the charge of a named trustworthy and respectable person who is willing to receive and take charge of him and to supervise, guide and advise him. Section 26(2) A licence shall remain in force until the expiration of the period for which the inmate has been directed to be detained, or until cancelled under section 27. Section 26(3) The time during which an inmate is absent from a borstal institution in pursuance of a licence shall, except where the licence is cancelled by reason of his breach of licence be deemed to be part of the time of his detention in the borstal institution .

Section 27. Revocation oflicence Section if the person to whom it was granted has broken any condition of the licence ; or

Section 28. Discharge by order of Minister Section 28(1) The Minister may at any time in writing order any inmate to be discharged from a borstal institution and upon discharge the borstal order made in respect of that inmate shall cease to have effect. Section 28(2) The superintendent shall be responsible for the due discharge of all inmates immediately upon their becoming entitled to release. Section 28(3) No inmate under treatment by the medical officer in a borstal institution shall, except at his own request, be discharged from any borstal institution until, in the opinion of the medical officer, such discharge can be effected without danger to the health of such inmate.

Section 29. Supervision after expiration of detention Section 29(1) Every person in respect of whom a borstal order has been made, other than a person discharged under section 28 or section 48, shall, on the expiration of his period of detention therein, remain for a period of one year, or such lesser period as the After-Care Committee may recommend, under the supervision of the superintendent of the borstal institution in which he was last detained, or a person appointed in writing by the superintendent. Section 29(2) A person while under supervision in pursuance of subsection (1) shall comply with the written instructions of the superintendent regarding his place of residence, occupation, activities, conduct and otherwise, and if he fails to comply with any of those instructions he may be recalled by the Commissioner to the borstal institution in which he was detained immediately before the expiration of his period of detention: Provided that no person shall be recalled unless in the opinion of the Commissioner such recall is necessary for his well-being. Section 29(3) Any person recalled under subsection (2) may be detained in the borstal institution for a period not exceeding t...

Section 30. Borstal institution offences Section The Minister may prescribe what acts or omissions by inmates shall be borstal institution offences.

Section 31. Punishment of inmate byprincipal borstal officer Section playing games;

Section 32. Punishment of inmate bysuperintendent Section removal to the penal grade;

Section 33. Punishment of inmate by commissioner Section 33(1) The Commissioner may punish any inmate found after due inquiry by him to be guilty of a borstal institution offence. Section 33(2) The superintendent on finding an inmate guilty of a borstal institution offence may, if he is of the opinion that in the circumstances of the case the powers of punishment he possesses are inadequate, transfer the case to the Commissioner for punishment. Section 33(3)(a) a copy of the charge; Section 33(3)(b) the record of all the evidence he has taken, including the evidence of the inmate; Section 33(3)(c) the reasons why he has found the inmate guilty; and Section 33(3)(d) any representations the inmate wishes to make to the Commissioner in regard to punishment. Section 33(4)(a) punish the inmate; or Section 33(4)(b) reverse the findings of the superintendent and find the inmate not guilty; or Section 33(4)(c) require the superintendent to take further evidence and submit it to him before he makes a decision. Section 33(5)(a) any award authorized under section 32; Section 33(5)(b) deprivation of privileges; Section 33(5)(c) loss of grade; Section 33(5)(d) confinement in a room for not more...

Section 34. Inmate’s defence Section Inmate’s defence No inmate shall be punished for a borstal institution offence until he has had an opportunity of hearing the charge against him and making his defence.

Section 35. Restricted diet Section 35(1) No inmate shall be subjected to restricted diet until certified by a medical officer or other person appointed for such purpose by the medical officer as medically fit to undergo it. Section 35(2) A person shall not be required to perform work while he is on a restricted diet.

Section 36. Corporal punishment Section 36(1) No sentence of corporal punishment shall be carried out until a period of twenty-four hours has elapsed from the time of the order thereof and a medical officer has certified that the offender is physically fit to undergo the punishment. Section 36(2) A medical officer may give such orders for the prevention of injury to the health of the offender ordered to receive corporal punishment as he may deem necessary, and such orders shall be carried out before the punishment is inflicted; and if, during the course of the infliction of the punishment, the medical officer orders it to be discontinued it shall be discontinued accordingly. Section 36(3) Corporal punishment shall not be inflicted upon any female inmate.