Hussienatou Manjang
MPhil (Pretoria), BA (Kent); Legal Researcher, African Committee of Experts on the Rights and Welfare of the Child
https://orcid.org/0009-0006-2709-4950
Edition: AHRY Volume 8
Pages: 230-251
Citation: H Manjang ‘Implementation of article 30 of the African Charter on the Rights and Welfare of the Child: a decade of progress and challenges since the adoption of General Comment 1’ (2024) 8 African Human Rights Yearbook 230-251
http://doi.org/10.29053/2523-1367/2024/v8a8
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ABSTRACT
This article examines the domestic implementation of article 30 of the African Charter on the Rights and Welfare of the Child concerning the children of incarcerated parents and primary caregivers, more than a decade after the adoption of General Comment 1 on article 30, in November 2013 during the 22nd Ordinary Session of the African Committee of Experts on the Rights and Welfare of the Child (Committee). The article analyses 56 initial and periodic reports submitted by 39 state parties, which were considered by the Committee between its 23rd and 42nd Ordinary Sessions. Based on guidance provided in the General Comment, the analysis reveals notable disparities in implementation: while some states have recognised the importance of maintaining parent-child bonds through specific legislative measures, only a minority have established specialised facilities or provided comprehensive non-custodial sentencing options. The article also notes a lack of detailed data and systematic monitoring, and identifies the need for a more robust child-rights-based approach and stronger efforts to ensure full compliance with the General Comment.
TITRE ET RÉSUMÉ EN FRANÇAIS
Mise en œuvre de l’article 30 de la Charte africaine des droits et du bien-être de l’enfant : bilan d’une décennie de progrès et de défis depuis l’Observation générale 1
RÉSUMÉ: Cet article analyse l’application de l’article 30 de la Charte africaine des droits et du bien-être de l’enfant, qui porte sur la protection des enfants de mères incarcérées, plus de dix ans après l’adoption de l’Observation générale No. 1 lors de la 22e session ordinaire du Comité africain d’experts sur les droits et le bien-être de l’enfant (Comité) en novembre 2013. Il s’appuie sur l’examen de 56 rapports initiaux et périodiques soumis par 39 États parties entre la 23e et la 42e session ordinaire du Comité. L’étude révèle des disparités importantes dans la mise en œuvre des directives établies par l’Observation générale. Bien que certains États aient pris des mesures législatives pour renforcer les liens parent-enfant et garantir une meilleure protection des enfants concernés, peu d’entre eux ont établi des infrastructures adaptées ou mis en œuvre des peines alternatives aux sanctions privatives de liberté pour les mères. L’article souligne également l’absence de données désagrégées et le manque de suivi systématique, entravant une évaluation complète des progrès réalisés. Enfin, il met en avant la nécessité d’une approche fondée sur les droits de l’enfant et recommande des efforts accrus pour garantir une pleine conformité avec l’Observation générale 1 et les principes de la Charte.
KEY WORDS: children of incarcerated parents; caregivers; implementation; African Children’s Charter; African Children’s Committee; General Comment 1
2 Normative standards protecting children of incarcerated parents and caregivers
2.1 African Charter on the Rights and Welfare of the Child
2.2 Related human rights frameworks
3 Domestic implementation of article 30
3.1 Legislative and administrative measures
5 Conclusion and recommendations
1 INTRODUCTION AND BACKGROUND
The African Committee of Experts on the Rights and Welfare of the Child (Committee), as the monitoring organ of the African Charter on the Rights and Welfare of the Child (African Children’s Charter), has the authority to draft General Comments clarifying the meaning of the provisions of the African Children’s Charter to assist state parties in fulfilling their obligations to realise children’s rights. During the 22nd Ordinary Session, the Committee adopted its first General Comment, on article 30, which is the only provision in a human rights treaty specifically addressing the issue of children of incarcerated mothers. The measures outlined in article 30 of the African Children’s Charter that state parties should undertake to provide special treatment for pregnant women and mothers’ infants/young children include prioritising non-custodial sentences,1 establishing and promoting alternative measures to institutional confinement,2 establishing specialised alternative institutions,3 ensuring mothers are not imprisoned with their children,4 prohibiting the imposition of the death sentence on such mothers,5 and emphasising the ultimate goal of the penitentiary system as the reformation, integration of the mother back into the family, and social rehabilitation.6 General Comment 1 expands on the understanding of the provision by extending its application to children of incarcerated parents and caregivers, and outlines the legislative, administrative, policy, and practical measures necessary for the full implementation of article 30.
Children of incarcerated parents and caregivers constitute a vulnerable group that necessitates focused attention as there are many issues to consider. Research indicates that the psychosocial development of young children is more likely to suffer when separated from their primary caregiver during the formative years compared to those living in prison with the primary caregiver.7 However, living in prison environments, which are often restrictive and poorly suited for children’s growth and development, can also significantly compromise their rights and well-being.8 Such conditions can lead to various rights violations such as survival and development, education, and health.9 Article 30 is therefore of particular importance in outlining protective measures to safeguard the rights and welfare of such children and their parents or primary caregivers, addressing the unique needs imposed by incarceration.
In the African context, the challenges of the prison systems are exacerbated by inadequate public and prison health systems, crumbling infrastructure, ineffective criminal justice systems, high pre-trial detention rates, and general overcrowding.10 Taking examples from Zimbabwe and Uganda, which are among the 39 countries whose state party reports are analysed in this article, clearly highlights the broader systematic and right-based challenges confronting prison systems across the continent. In Zimbabwe, the government struggles due to financial constraints to meet the basic needs of children in prisons, such as health, food, and a safe environment.11 In Uganda, women prisoners reported that arrests were highly disruptive for their children as no information was provided about their whereabouts,12 and others noted that their infants occasionally suffered from a lack of food and lived in unhygienic conditions.13
A decade since the adoption of General Comment 1, this article assesses the strides and persisting challenges in the domestic implementation since its adoption. The article begins by discussing relevant normative standards at the regional and international level concerning children of imprisoned parents or primary caregivers, providing a foundation for analysing the domestic implementation of General Comment 1. Subsequently, the article explores the legislative, administrative, and policy measures implemented across 39 state parties to the African Children’s Charter, drawing on a qualitative analysis of the 56 initial and periodic reports considered by the Committee over this decade. The following section presents a discussion of the findings, highlighting trends observed across countries and the gaps in implementation. Finally, the article concludes with recommendations for member states on how the implementation can be improved.
2 NORMATIVE STANDARDS PROTECTING CHILDREN OF INCARCERATED PARENTS AND CAREGIVERS
The African Children’s Charter and the Convention on the Rights of the Child (CRC) establish foundational frameworks for the rights of children of incarcerated parents and caregivers, but worth noting is also the discourse around the rights of these children has broadened to include a broader spectrum of international standards. Article 46 of the African Children’s Charter specifically mandates that the Committee draw upon international human rights law and other relevant United Nations and African instruments enriched by African values and traditions. This provision provides the justification and contextualisation of discussing regional and international normative standards in section 2.2, many of which predate the General Comment and shape the context within which the rights of children of incarcerated caregivers are considered. Within this framework, a detailed analysis of the domestic implementation of article 30 of the African Children’s Charter and General Comment is undertaken.
2.1 African Charter on the Rights and Welfare of the Child
General Comment 1 provides a nuanced interpretation of article 30, elaborating on the scope of obligations for state parties, international organisations, civil society, and community-based structures in ensuring the rights and welfare of children whose primary caregivers are involved with the criminal justice system.14 An emphasis is placed on ensuring protection across all stages of criminal proceedings, from arrest through to release and reintegration, regardless of whether the primary caregiver is subject to custodial or non-custodial measures.15 Generally, it advocates for an individualised and qualitative approach based on actual data about incarcerated caregivers and their children. This approach contrasts with a purely quantitative or categorical method, ensuring that implementation efforts are tailored to meet the specific needs of this vulnerable group in a more meaningful way.16 General Comment 1 outlines detailed legislative measures that state parties should implement to ensure compliance, expanding upon the measures which already existed under article 30. Specifically, these include ensuring that their respective legislation gives priority consideration to non-custodial measures when courts sentence or decide on pre-trial measures for a child’s sole or primary carer, subject to the need to protect the public and child and bearing in mind the gravity of the offence while considering the best interests of the child.17
Article 30 calls for ‘special treatment to expectant mothers and to mothers of infants and young children’; as the General Comment clarifies that this provision extends to all parents and primary caregivers, the phrase ‘special treatment’ signifies a higher level of obligation for state parties reflecting the heightened vulnerability of children of incarcerated parents and primary caregivers. The consideration of non-custodial sentences necessitates a thorough review of the sentencing process. Courts must determine whether the accused is a primary caregiver and assess the adequacy of conditions for the children should a custodial sentence be deemed unavoidable. The General Comment also emphasises the importance of alternative measures at both pre-trial and post-trial stages. Pre-trial alternatives include bail, summons, written notices to appear in court, and life bonds.18 Post-trial alternatives encompass community service, correctional supervision, fines, and restorative justice sentences, all aimed at minimising the impact of incarceration on children and caregivers.19 Additionally, safeguards should be provided for pregnant prisoners or those with children where it is considered for judges to impose custodial sentences on such prisoners.20 State parties should also put in place legislative and administrative mechanisms to ensure that a decision for a child to live in prison with his/her mother or caregiver is subject to judicial review.21 Finally, state parties are also urged to establish legislative and administrative measures to ensure that they include consideration of the child’s views, and take into account the importance of maintaining direct contact with parents or caregivers regularly, particularly during early childhood, as well as the overall conditions of incarceration.22
There are five key indicators to measure and evaluate the progress made in the implementation of article 30. First, detailed information should be provided on the constitutional and legislative measures adopted to implement article 30, demonstrating the specific frameworks in place. Second, state parties are expected to explain how their national policy frameworks and action plans translate these constitutional and legislative measures into concrete and measurable actions to implement article 30. Third, there should be a clear indication of the implementation mechanisms, detailing how policies, action plans, and programmes are executed to ensure the effective realisation of article 30. Fourth, state parties must report on the level of enjoyment of the rights under article 30, indicating the extent of their implementation efforts and progress towards full realisation. Finally, state parties are required to outline the evaluation and monitoring mechanisms they have established to oversee the effective implemen-tation of article 30.23
2.2 Related human rights frameworks
The CRC, under article 9, addresses children separated from their parents, arguably including children of incarcerated parents. It requires that state parties ensure children are not separated from their parents against their will unless competent authorities, subject to judicial review, determine such separation to be necessary in the child’s best interests, in accordance with applicable law and procedures.24 Moreover, if separation results from actions initiated by a state party, such as detention or imprisonment, the state party must, upon request, provide the parents, the child, or another family member with essential information regarding the whereabouts of the absent family member(s), unless disclosing such information would be detrimental to the well-being of the child.25 The Committee on the Rights of the Child further emphasised the rights of children of incarcerated parents or caregivers in General Comment 14, which underscores that the best interest of the child should always be of primary consideration. It recommends considering alternatives to detention for parents or caregivers who commit a crime, assessing each case individually to ensure the best interests of the affected child or children are fully considered.26
In 1990, the General Assembly adopted the Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules), offering a variety of non-custodial measures that authorities can consider in decisions concerning an offender’s rehabilitation, societal protection, and victim interests, as per Rule 8(2). These alternatives include:27
(a) verbal sanctions, such as admonition, reprimand and warning; (b) conditional discharge; (c) status penalties; (d) economic sanctions and monetary penalties, such as fines and day-fines; (e) confiscation or an expropriation order; (f) restitution to the victim or a compensation order; (g) suspend or deferred sentence; (h) probation and judicial supervision; (i) a community service order; (j) referral to an attendance centre; (k) house arrest; (l) any other mode of non-institutional treatment.
The Tokyo Rules apply universally to all individuals, underscoring a universal approach to less restrictive alternatives to imprisonment. Building upon the Tokyo Rules, the adoption of the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) introduced gender-specific standards addressing the needs of women prisoners and offenders while also incorporating safeguards for children of incarcerated mothers.28 These specific safeguards ensure that children in prison with their mothers are never treated as prisoners,29 mothers must be allowed as many opportunities as possible to spend time with the children who are imprisoned with them,30 the environment provided for such children’s upbringing shall be as close as possible to life outside of prison,31 decisions regarding whether a child should be separated from its mother must be based on individual assessments and the best interests of the child,32 and non-custodial alternatives to custody be applied wherever possible if someone facing imprisonment has sole caring responsibilities.33
The Guidelines for the Alternative Care of Children serve as another critical framework to inform policy and practice.34 Concerning children of incarcerated parents and caregivers, the Guidelines emphasise the prioritisation of non-custodial measures in cases where a child’s primary caregiver faces potential deprivation of liberty due to preventive detention or sentencing, ensuring the best interests of the child are paramount. States are urged to carefully consider the best interests of children born in prison or residing with a caregiver or parent in prison, treating their potential removal from such environments with the same care as other separation situations. Additionally, efforts should be directed towards ensuring that children who remain in custody with a parent receive adequate care and protection while maintaining their status as free individuals with access to community activities.35 Moreover, states should particularly focus on facilitating contact between children in alternative care due to parental imprisonment and their parents, providing necessary counselling and support accordingly.36
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003 (Maputo Protocol) parallels the Bangkok Rules by emphasising gender-specific standards, particularly addressing protections for incarcerated women, including mothers. Article 24(b) requires state parties to ensure ‘the right of pregnant or nursing women ... in detention by providing them with an environment which is suitable to their condition and the right to be treated with dignity’. Additionally, article 4(2)(j) prohibits the imposition of the death penalty on pregnant and nursing mothers.
Together, these normative standards complement the protective measures outlined in General Comment 1 and article 30 of the African Children’s Charter, providing a holistic approach to safeguarding the rights and welfare of children affected by the incarceration of their parents or primary caregivers.
3 DOMESTIC IMPLEMENTATION OF ARTICLE 30
In measuring and evaluating the progress of implementing article 30 of the African Children’s Charter, the Committee mandates state parties to provide detailed information on their progress, successes, and challenges, including statistical data in their Initial and Periodic Reports. The Guidelines on the Form, Content, and Consideration of Initial and Periodic State Party Reports explicitly reference General Comment 1, requiring state parties to report on special measures for expectant mothers and mothers of infants and young children accused or found guilty of a criminal offence. Specifically, they are required to provide information on the provision of non-custodial sentences, alternatives to institutional confinement, special institutions for mothers, the prevalence of children incarcerated with mothers, and the legal status concerning the imposition of the death sentence on such mothers.37 The Committee has considered 56 state party reports, comprising Initial and Periodic Reports, since the adoption of the General Comment. These reports have been submitted by 39 state parties representing all regions of Africa, including North, West, Central, East, and South. In assessing the implementation, the focus is on the legislative, administrative, and policy measures undertaken within the state parties.
3.1 Legislative and administrative measures
The state party reports reveal disparities in the legislative and administrative measures undertaken to protect the rights of children of incarcerated parents and caregivers. Notably, while 24 state parties38 have recognised the importance of maintaining parent-child bonds through legislation allowing children to reside with their imprisoned mothers up to a certain age, only ten state parties39 have enacted specific legislation for the provision of non-custodial sentences for pregnant women and mothers with young children. Moreover, only nine state parties that reported40 have established special institutions or units within prisons, such as Mother and Baby Units, to cater to the specific needs of incarcerated mothers and their children. Six state parties41 have legal provisions providing for alternative care arrangements or support systems to prevent children from growing up in the prison environment. Regarding the death sentence, three states42 have completely banned it, with three others43 specifically prohibiting it for pregnant women or mothers with young children, and two state parties44 delaying it until after childbirth. Only five state parties45 presented specific data, five state parties46 made no reference to measures undertaken to implement article 30, and four state parties47 noted that there is an absence of legislation concerning the rights of children of incarcerated caregivers.
Despite the enactment of laws in numerous states allowing children to stay with their incarcerated mothers temporarily, article 30(d) stipulates that ‘a mother shall not be imprisoned with her child’. This provision underscores the African Children’s Charter’s emphasis on fostering a ‘family environment in an atmosphere of happiness, love and understanding’ and reinforces the obligation of state parties to provide alternatives to pre and post-trial custody for primary caregivers.48 Approaches to handling the incarceration of primary caregivers with children or infants vary among state parties. For instance, in Madagascar, mothers in prison are allowed to stay with their children up to the age of three for breastfeeding and care within a designated penal facility, while religious associations have established a nursery for children of incarcerated mothers.49 Likewise, in Zimbabwe, where a daycare centre has been established at the country’s largest female prison to provide a normal environment for children accompanying their mothers in prison.50 An observation from the state reports reveals that many only specify an age threshold for children staying in prisons but rarely address the conditions of the environment and the considerations provided to children living in such settings, including measures to ensure their health and development comparable to children outside of prisons. The General Comment underscores that determining the best interests of children of incarcerated primary caregivers cannot rely solely on formalistic approaches; it makes reference to prevalent narratives such as the ‘child at risk’ and ‘good mother’ in African laws and policies, which oversimplify the matter, leading to misconceptions about incarcerated parents and their children by suggesting a uniformity of responses that may not be applicable in all cases.51 Therefore, in light of this and the progress made thus far, there is a need for a more comprehensive and intentional approach to legislation regarding the incarceration of parents or caregivers with their children.
Moreover, only six state party52 reports address alternative care arrangements for children outside the prison system, suggesting a gap in comprehensive support services fully supporting the rights and well-being of children of incarcerated parents and caregivers. In Botswana, section 64 of the Children’s Act 2009 outlines precise provisions in this regard. According to this section, if a parent, relative, guardian, or custodian is convicted under this Act, a social worker must, within 14 days, seek an order from the children’s court to place the child into alternative care.53 Similarly, in Ghana, a system is in place where family members are informed to take custody of infants ready to be weaned. If they fail to do so by the age of two, the children are transferred to a Children’s Home. Furthermore, the Department of Social Welfare in Ghana facilitates communication between convicted mothers and their families, allowing visits for bonding purposes.54 The General Comment underscores the obligation of state parties to ensure appropriate alternative care for children of imprisoned parents and caregivers, as stipulated in article 25 of the African Children’s Charter. Ideally, the process of identifying alternative care should commence immediately following arrest, with regular supervision and review thereafter.55 In a similar vein, the issue of periodic judicial review for children residing in prison is inadequately addressed in the state party reports, except for in the state party report of Zimbabwe. In Zimbabwe, while not a formal judicial review process, there is a mention of a periodic presidential amnesty, during which nursing mothers are considered for early release.56 However, across other state parties, there is a significant gap in legislative mechanisms ensuring that decisions regarding a child’s residency in prison with their mother or caregiver are subject to judicial review, as required in the General Comment.57
From the state party reports, only some countries explicitly outline provisions or measures of non-custodial measures for pregnant women and mothers with young children (and some that apply to all people, indeed including this group). For instance, Sections 221-225 of the Nigeria Child Rights Act mandates courts to consider non-institutional sentences for expectant or nursing mothers as an alternative to imprisonment. Should imprisonment be mandatory, expectant and nursing mothers are directed to be held at a Special Mother’s Centre until their child reaches six years of age.58 Conversely, in both Algeria and Eritrea, legislation permits the postponement of sentencing for pregnant women or mothers of young children. In Algeria, article 16 of Law 05-04 allows for the postponement of the execution of custodial sentences for pregnant women or mothers of children under 24 months.59 Similarly, in Eritrea, article 206(a) of the Transitional Criminal Procedure Code permits the postponement of penalty execution for women sentenced to arrest or simple imprisonment not exceeding one year.60 In Burkina Faso, according to Law No 007-2004/AN of 6 April 2004, which governs the administration of community service, courts handling correctional matters have the authority to impose community service sentences. However, this option is available only to defendants convicted of offences punishable by imprisonment. Despite its general applicability to all individuals, this law can indeed apply to pregnant women and mothers with young children.61 It is worth noting that article 19 of the African Children’s Charter grants a child the entitlement to parental care and protection, affirming that only a judicial authority can separate a child from parental care, and only if it is in the child’s best interest. The sentencing of parents to prison or custodial settings violates the rights of a child, according to article 19 of the African Children’s Charter. Therefore, the courts of state parties must take into account the best interest of children as per article 4, read with article 30(1)(a) and 19(1) regarding the separation of a child from parental care when considering custodial sentences for convicted parents and caregivers.62
The existence of specialised prison units like Mother and Baby Units (MBUs) in a few states signifies a targeted effort to cater to the specific needs of this demographic. Article 30 envisions special treatment for pregnant mothers and mothers of infants and young children accused or found guilty of infringing the penal law. The term ‘special’ implies a heightened level of obligation for state parties, reflecting the increased vulnerability of these children who require specific measures.63 Article 30(1)(c) the African Children’s Charter calls on state parties to establish special alternative institutions for holding mothers with a focus on realising children’s rights. For instance, programs that facilitate mothers residing with their infants in prison nurseries could be expanded and employed if considered in the child’s interests.64 In response to this, some countries have taken concrete steps to create specialised units tailored to the needs of mothers and their young children within correctional facilities.
South Africa has made commendable progress in establishing specialised prison units, such as MBUs, and is one of the few state parties to extensively report on the measures undertaken in this regard. The Department of Correctional Services initiated the creation of MBUs to provide child-friendly facilities specifically designed for incarcerated mothers and their children.65 These units not only ensure the physical separation of mothers from the general female prison population but also offer essential amenities, such as baby cots, toys, and kitchens, to meet the needs of children and their incarcerated mothers.66 Mothers are accommodated in either single cells with a bed and cot, or in communal cells with cots placed adjacent to the mothers’ beds.67 Early Childhood Development centres are integrated within these units to support the holistic development of children residing in prisons with their mothers. These centres focus on various aspects of child development, including emotional, cognitive, sensory, moral, physical, and social growth, aligning with the best interests of the child.68
In addition to South Africa, other state parties such as Chad, Kenya, and Rwanda, have also introduced measures to provide for specialised facilities for incarcerated mothers. In Chad, Law No 19/PR/2017 on the Penitentiary Regime of 28 July 2017 provides pregnant women with special protection. Articles 26 and 27 of this law provide that pregnant women are ensured a separate area for the last two months of pregnancy and the following two months postpartum. Throughout their pregnancy, they are entitled to comprehensive support and care to ensure their well-being.69 Similarly, in Kenya, the Persons Deprived of Liberty Act No. 23 of 2014 mandates separate facilities for mothers with infant children. Additionally, these mothers receive nutritional supplements to support their child’s growth and development. The government has allocated resources to ensure that children, pregnant women, and lactating mothers in prison receive a nutritious diet.70 In Rwanda, mothers with children under three years are detained in special wards reserved for them. Furthermore, the government has established Early Childhood Development Centres within prison facilities. These centres cater to children under three years who reside with their mothers in prison, ensuring they receive appropriate food supplements for their nutritional needs.71 However, despite these efforts, many state party reports suggest that resources have been insufficiently allocated to ensure the establishment of special alternative institutions that adequately protect children’s rights, indicating a persisting challenge since the adoption of the General Comment.
The outright ban on the death penalty, including specific provisions for pregnant women and mothers in certain state parties, reflects a protective measure aimed at safeguarding maternal rights and child welfare. While the majority of countries worldwide prohibit the death penalty for pregnant women, certain state parties to the African Children’s Charter opt to postpone execution until shortly after birth, thus violating article 30(1)(e), despite its provisions.72 Legislative reform is, therefore, essential, as the obligation under article 30 does not merely involve postponing execution but requires that such sentences not be imposed in the first place.73 Recognising the continued practice of de facto moratoriums that postpone executions, as reported by countries like Niger,74 particularly in cases involving pregnant women, General Comment 1 establishes interim safeguards to protect children until comprehensive legislative reforms are implemented. These measures include informing children about the status of their caregivers on death row; commuting the sentences of prisoners who have spent prolonged periods on death row; integrating comprehensive rehabilitation and development programs that address their specific needs; promoting and maintaining regular contact between incarcerated caregivers and their families; and the development of pre-release initiatives, such as halfway houses.75
Moreover, a few countries have attempted to provide data on the number of children living with incarcerated parents or caregivers, which, despite not being incredibly comprehensive or disaggregated by factors like age and gender, indicates progress and a willingness to ensure the implementation of article 30 and addressing the needs of this vulnerable group. However, underlining the need for an individualised, informed, and qualitative approach, the General Comment stresses the importance of routinely gathering statistics about children of incarcerated parents and caregivers by relevant agencies to inform policy and practice in state parties.76
While some progress has been made in legislative and administrative measures to protect the rights of children of incarcerated parents and caregivers, the overall lack of comprehensive dates and information underscores the need for continued and strengthened efforts to ensure full compliance with the General Comment.
3.2 Policy measures
The General Comment, though not in explicit detail, requires that state parties include comprehensive information illustrating how national policies and action plans convert constitutional and legislative frameworks ‘into concrete and measurable actions to implement article 30’.77 Additionally, it is strongly recommended that these policies should prioritise reducing the separation between imprisoned parents and their children.78 Yet, a review of the state party reports since the General Comment reveals that none of the 56 reports discuss prison-related policies or action plans that address the rights of children of incarcerated parents and caregivers and the measures are in place to uphold the rights of their parents in accordance with the provisions of article 30 of the African Children’s Charter. Although some reports acknowledge the contributions of non-governmental organisations in supporting the implementation of article 30, there is seldom a direct acknowledgment of the state parties’ efforts to meet their obligations.79 This oversight is a notable limitation and warrants criticism of both the state parties and the Committee. Often, the Concluding Observations and Recommendations sent to the state parties include a paragraph regarding children of incarcerated parents, wherein the Committee urges the state party to consider General Comment 1 of the African Children’s Charter in the implementation of article 30, but this recommendation tends to be generic rather than tailored to individual circumstances highlighted in the respective state party reports, reflecting a lack of the individualised approach that the General Comment promotes state parties to undertake.
4 DISCUSSION
The overall reporting on the measures undertaken to implement article 30 and General Comment 1 remains inadequate for several reasons, as discussed below. The five indicators in section 2.1. to evaluate progress include constitutional and legislative measures, translation into national policies, implementation mechanisms, the extent of enjoyment of article 30, and evaluation frameworks. However, only the first indicator, detailing constitutional and legislative measures, is addressed. There is a very strong focus in the state party reports on legislative measures only, which evidently results in a lack of detailed information on the implementation and practical outcomes for children of incarcerated parents and primary caregivers, as revealed in the 56 state party reports reviewed. The reports generally lack detailed accounts of how legislative measures are being practically implemented, which fails to meet the second indicator of translating how national policy frameworks and action plans translate the legislative and constitutional measures into concrete and measurable actions.
While there are legislative actions and some policy measures in place to support the rights of children of incarcerated parents, there is a considerable lack of comprehensive action and detailed reporting that would demonstrate a full commitment to the five indicators. There is a lack of data on the prevalence of children of incarcerated parents and caregivers, and the monitoring and evaluation of the practices in place, as well as clear indication of implementation mechanisms in place to execute the action plans and policies. These are all key elements discussed in the General Comment. However, as indicated in section 3.1, only five80 of the 39 state parties include data in their reports, despite clear guidance to routinely compile and review such statistics to inform effective policy and practice. Moreover, the reports frequently lack detailed information, with many providing only brief mentions of legislation, spanning just one to three paragraphs without exploring the efficacy of these laws in practice, which illustrates a disregard for reporting on measures undertaken to implement article 30. The fourth indicator requires reports on the level of enjoyment of rights under article 30, including successes and challenges. Considering only five states presented specific data, this indicates a failure to fully meet this indicator. Moreover, five state parties81 made no reference to measures undertaken to implement article 30, and four state parties82 noted that there is an absence of legislation concerning the rights of children of incarcerated caregivers.
Regarding the final indicator, which concerns evaluation and monitoring mechanisms, although the reports lack detailed descriptions of these processes, it is notable that 11 state parties had more than one report considered by the Committee.83 A review of these specific countries arguably illustrates notable progress is evident in their adherence to article 30 of the African Children’s Charter, alongside the implementation of measures outlined in the General Comment. Chad provides a clear example of legislative improvements following the Concluding Observations and Recommendations and Recommendations of the Committee after the consideration of the Initial Report. These recommendations encouraged the state party to consider General Comment 1 in the implementation of article 30. Chad’s First Periodic Report references the adoption of Law No 19/PR/2017 on the Penitentiary Regime which mandates special protection for pregnant women in custody.84 Similarly, Benin’s Initial Report covering the period up to 2015, two years after the adoption of the General Comment by the Committee, references a new Child Code that included protection of the rights of children affected by parental incarceration. Although the specific year of enactment is unspecified, the provisions of the Child Code align closely with principles articulated in General Comment 1. These provisions cover rights for children born in prison, regulations allowing children to remain with their incarcerated mothers until a specified age, and protections for pregnant women in detention.85 A similar trend is observed in the First Periodic Report of the Republic of Guinea. Article 50 of the new Child Code, responding to the Concluding Observations and Recommendations of the Committee, allows for the possibility of a child residing in prison with their mother (provided the conditions are suitable), that a specialised facility is established, and it incorporates the elements of article 30(f), emphasising that the focus of the prison system should ultimately be on the rehabilitation and reintegration of the parent and primary caregiver.86 These legislative developments reflect a degree of domestic implementation of the General Comment despite the reports themselves not explicitly acknowledging the influence of the General Comment.
The indicators outlined in the General Comment served as the primary basis for assessing the measures undertaken by state parties to implement article 30, and the depth of information provided in the state party reports to the Committee, as discussed above. However, beyond these indicators, a broader analysis reveals significant gaps in the effective realisation of children’s rights, largely rooted in a lack of political will among state parties. The Concluding Observations and Recommendations of the Committee consistently reveal a recurring trend of insufficient prioritisation of children’s rights, often reflected in the low budgetary allocation towards the implementation of the rights and welfare of children as enshrined in the Charter. The Committee has repeatedly called on state parties to increase budgetary allocations. This is particularly evident among the 11 state parties87 that have undergone more than one state party report review over the ten years since the adoption of the General Comment, each receiving at least two Concluding Observations and Recommendations during the reporting cycles. Budgetary allocation, which falls under the general measures of implementation in the Concluding Observations, is a key area where the commitment to children’s rights is assessed. The Committee continues to emphasise the importance of sufficient budgetary allocation as a foundational measure to ensure effective implemen-tation of the rights of children, and monitoring the implementation of these rights.
For instance, the Committee observed a significant decline in budget allocations for the South African Human Rights Commission, particularly for its role in promoting children’s rights. This decline was noted across two reporting cycles, suggesting a lack of sustained commitment to children’s issues despite ongoing recommendations for increased funding.88 Similarly, in Rwanda, while there was a slight increase in budget allocations for child rights, the Committee highlighted that these increments were inadequate relative to population growth and inflation, ultimately affecting the quality of health and education services for children.89 In Lesotho, the Committee pointed out that the Ministry of Social Development’s mandate extends beyond child rights, resulting in limited dedicated funding for children’s issues.90
This general lack of political will becomes more apparent when examining the prioritisation of a vulnerable group of children, children of incarcerated parents and caregivers, especially given the lack of the child rights-based approach to the implementation of article 30 at the domestic level, particularly evident in three key areas. First, there is a significant lack in the establishment of specialised facilities for children of incarcerated parents and caregivers. Second, there is a lack of non-custodial measures across the state party reports. Third, there is limited mention of periodic judicial review for children who are living in prison with their parents or caregivers. As indicated in section 3.1., nine state parties have established special facilities or units such as Mother and Baby Units, however, this is not a widespread practice as it is not even mentioned in the other state party reports. Moreover, despite the absence of special facilities to house mothers and their children, there is also a gap in the number of reports that make reference to the provision of non-custodial measures or alternative arrangements for children in this situation. This shortfall is especially concerning when considering the comprehensive options for non-custodial measures outlined in the Tokyo Rules, which include a wide range of less restrictive alternatives to facilitate offender rehabilitation and protect societal and victim interests. These measures range from verbal sanctions and economic penalties to probation, community service, and house arrest, underscoring a universal approach to minimising incarceration. Last, the periodic judicial review of the conditions and status of children who remain in custody with their parents appears to be inadequately addressed. These points beg the question of whether the best interest principle of the child is being considered in the sentencing of the parent and or primary caregiver, and the possible consequence on the affected child.
5 CONCLUSION AND RECOMMENDATIONS
In conclusion, the domestic implementation of article 30 following a decade since the adoption of General Comment 1 reveals a substantial variation in the level of compliance, highlighting a concerning inconsistency in the adoption of the principles of article 30 across the continent. Legislative measures, while significant in a few countries, are not universally reflective of a commitment to the underlying principles of article 30. Notably, only a select number of states have established specialised facilities or adapted their judicial processes to prioritise non-custodial measures for incarcerated parents, directly impacting the welfare of the children involved. Moreover, the inadequacy of detailed data collection and systematic monitoring mechanisms is concerning because without comprehensive data, it is challenging to assess the full impact of implemented measures or to understand the scope of ongoing issues fully. This gap not only impedes the effectiveness of current policies but also complicates the development of targeted interventions that could address the specific needs of affected children. Despite the legislative intentions, the practical outcomes for children of incarcerated parents and caregivers remain largely unaddressed, with many states lacking the infrastructure or policy provisions to effectively support the non-custodial and rehabilitative aspirations envisioned by the African Children’s Charter and the General Comment.
This is not only a criticism of the progress made and challenges that persists, but also a call to action. The future efforts of state parties must focus on ensuring that the protections intended by article 30 are not only legislated but also effectively implemented and monitored to adequately protect the rights and welfare of children affected by the incarceration of their parents or primary caregivers. In this regard, this article recommends the following:
State parties to the African Children’s Charter should strengthen information provided in the state reports submitted to the Committee by ensuring the five indicators outlined in the General Comment are reflected: (i) ensure detailed reporting on constitutional and legislative measures implementing article 30; (ii) clarify how national policy frameworks and action plans operationalise these measures into concrete and measurable actions to implement article 30; (iii) establish clear implementation mechanisms outlining the execution of policies, action plans, and programs for effective realisation of article 30; (iv) report on the extent to which rights under article 30 are enjoyed, indicating implementation efforts and progress toward full realisation; and (v) outline evaluation and monitoring mechanisms established to oversee the effective implementation of article 30.
State parties to the African Children’s Charter should incorporate a child-rights based approach as the foundation for legal and policy frameworks, upholding the four general principles (non-discrimination, best interest of the child, survival and development, and child participation) of the Charter throughout all stages of the imprisonment process, from pre-trial to imprisonment, and the reintegration period following release.
State parties to the African Children’s Charter ensure the necessary legal protections and administrative procedures are established and implemented that prioritise non-custodial sentences over custodial ones for parents and primary caregivers during sentencing, including pre-trial and trial phases, whenever feasible. Alternatives to incarceration should be provided for and implemented on a case-by-case basis, taking into full account the potential impact of different sentences on the well-being of the affected child and upholding the best interest of the child as the primary consideration.
State parties to the African Children’s Charter should, following article 30(1)(c) of the African Children’s Charter and article 24(b) of the Maputo Protocol, establish special institutions for holding pregnant women and mothers of young children/infants in prison. These institutions should be designed to focus on realising children’s rights, potentially including programs and prison nurseries.
State parties to the African Children’s Charter ensure that children incarcerated with their parent or primary caregiver are not discriminated against based on the status of their caregiver and are provided with comprehensive social services, including adequate healthcare and educational resources.
State parties to the African Children’s Charter should completely prohibit the death penalty for parents and primary caregivers, both in law and practice in accordance with article 30(1)(e); and adopt and implement alternative care policies that provide for children whose parent or primary caregiver are incarcerated, following guidance provided in UN Guidelines for the Alternative Care of Children.
In addition to the above recommendations to state parties, the role of the Committee is also emphasised. The Committee must take a more proactive role in its engagement in the state party reporting procedure. Beyond setting standards and developing documents, it is important to not only to monitor but also to push for the enforcement of the General Comment 1 until the outcomes of state party reports align closely with the objectives of the General Comment and that there is a demonstrable improvement in meeting the specified indicators. This article, therefore, not only underscores the necessity for enhanced commitment and accountability but also highlights the collaborative imperative across all levels to ensure that the rights and welfare of children affected by parental incarceration are actively and effectively protected.
Annex 1: Sessions and state reports considered since the Committee’s adoption of General Comment 1
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Initial Report: Ethiopia, Republic of Guinea, Mozambique, South Africa |
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Initial Report: Botswana and Djibouti |
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9. General Comment 1 (Article 30 of the African Charter on the Rights and Welfare of the Child) on ‘Children of incarcerated and imprisoned parents and primary caregivers’, ACERWC (8 November 2013), para 4.
10. MC Van Hout & R Mhlanga-Gunda ‘‘‘Mankind owes to the child the best that it has to give”: prison conditions and the health situation and rights of children incarcerated with their mothers in sub-Saharan African prisons’ (2021) 13 BMC International Health and Human Rights 19 (2019) 2.
11. Parliament of Zimbabwe ‘Children of incarcerated parents’ (2021) Reports & Policy Briefs https://parlzim.gov.zw/children-of-incarcerated-parents/ (accessed 15 December 2024).
12. F Sheehan & D Mukisa A shared sentence: children of imprisoned parents in Uganda: A report on the implementation of General Comment No. 1 (Article 30 of the African Charter on the Rights and Welfare of the Child (2015) 9.
14. ACERWC (n 9) para 10. The GC explicitly recognises that the principles do not only apply to children of incarcerated mothers but also apply to children affected by the incarceration of their sole or primary caregiver.
26. General Comment 14 on the right of the child to have his or her best interests taken as a primary consideration (art 3 para 1) CRC Committee (29 May 2013) UN Doc CRC/C/GC/14 (2013) para 69.
27. Resolution 45/110 United Nations Standard Minimum Rules for Non-custodial Measures, UN General Assembly (14 December 1990) UN Doc A/RES/45/110 (1990) para 8.
28. Resolution 65/229 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, UN General Assembly (21 December 2010) UN Doc A/RES/65/229 (2010) (UN Rules).
34. Resolution 64/14 Guidelines for the Alternative Care of Children, UN General Assembly (18 December 2009), UN Doc A/RES/64/142 (2009) (Alternative Care Guidelines).
38. There are different age thresholds across legislation allowing children to stay with their imprisoned mothers up to a certain age are across the legislation of the different states: up to 18 months (Ethiopia and Uganda); up to 24 months only if they are born in prison (Eritrea and Eswatini); up to age 2 (Côte d’Ivoire, Lesotho and South Africa), up to age 3 (Algeria, Angola, Benin, Burundi, Madagascar, Mozambique, Rwanda, and Senegal); up to age 4 (Gabon, Kenya and Zambia); up to age 5 (Liberia and Mauritania); no prescribed age limit noted in the state party Report (Ghana, Sierra Leone, Tanzania and Zimbabwe).
45. Benin (Initial and 1st Periodic Report), Chad (1st Periodic Report), Ethiopia (1st Periodic Report), Republic of Guinea (Initial Report) and South Africa (1st Periodic Report).
49. République de Madagascar, ‘Initial Report on the Implementation of the African Charter on the Rights and Welfare of the Child’ (2014) para 392.
50. Republic of Zimbabwe, ‘Initial Report of the Government of the Republic of Zimbabwe under the African Charter on the Rights and Welfare of the Child’ (2013) para 9.3.2.
53. Republic of Botswana, ‘Combined 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Report Submitted by the Republic of Botswana to the African Committee of Experts on the Rights and Welfare of the Child on the Implementation of the African Charter on the Rights and Welfare of the Child (2003-2021)’ (2021) para 259.
54. Republic of Ghana, ‘Initial, First, and Second Consolidated Report to the African Committee of Experts on the Rights and Welfare of the Child (2005-2013)’ (2014) para 280.
58. Federal Republic of Nigeria, ‘Nigeria’s 2nd and 3rd Combined Country Periodic Report on the Implementation of the African Union Charter on the Rights and Welfare of the Child’ (2014) para 6.6.1.
59. People’s Democratic Republic of Algeria, ‘Initial Report on the African Charter on the Rights and Welfare of the Child’ para 362.
60. The State of Eritrea, ‘Consolidated First, Second, Third, and Fourth Periodic National Reports on the Implementation of the African Charter on the Rights and Welfare of the Child’ (2015) para 308.
61. Burkina Faso, ‘Quatrième, Cinquième et Sixième Rapports Périodiques Cumulés du Burkina Faso sur la Mise en Œuvre de la Charte Africaine des Droits et du Bien Être de l’Enfant Pour la Période de 2011 à 2015’ (2016) para 187.
65. South Africa, ‘South Africa’s second Country Report to the African Committee of Experts on the Rights and Welfare of the Child on the African Charter ‘on the Rights and Welfare of the Child’ (n.d.) paras 303 and 306.
67. South Africa, ‘South Africa’s Third Periodic Country Report to the African Committee of Experts on the Rights and Welfare of the Child: Implementation of the African Charter on the Rights and Welfare of the Child’ (n.d.) para 417.
69. Republique Du Tchad, ‘Rapport National Périodique Cumule (5ème et 6ème) sur la Mise en Œuvre des Dispositions de la Charte Africaine des Droits et Bien Être de l’Enfant’ (2022) para 177.
70. Republic of Kenya, ‘The Second and Third State Party Periodic Report 2012-2017 on the African Charter on the Rights and Welfare of the Child Presented to the African Union’ (2018) page 71.
71. Republic of Rwanda ‘Second and Third Periodic Reports on the Implementation of the African Charter on the Rights and Welfare of the Child’ (2014) para 130.
74. Republic of Niger, ‘Report submitted by Niger under article 43(1)(b) of the African Charter on the Rights and Welfare of the Child’ (2017) (English translation) para 464.
79. For example, in Ethiopia, the Prison Fellowship provides formal education to children and skills training to mothers across 90 prisons, with over 100 children enrolled in classes. In the Republic of Guinea, NGOs like Terre des Hommes, Sabou Guinée, and SOS Children engage in activities inside and outside prisons, such as constructing dining facilities, renovating dormitories, training prison staff, providing healthcare for children, and more.
83. Benin, Chad, Eritrea, Ethiopia, Guinea, Ivory Coast, Kenya, Lesotho, Rwanda, Senegal and South Africa.
85. Republique du Benin ‘Deuxième (2ème) rapport périodique de mise en œuvre de la Charte Africaine des Droits et du Bien-Être de l’Enfant’ (2022) 43-44.
86. Republique de Guinee ‘Deuxieme, troisieme, Quatrieme, Cinquieme et Sixieme rapports périodique sur l’application de la Charte Africaine des Droits et du Bien Être de l’Enfant (CADBE)’ (2019) para 176.
87. Benin, Chad, Eritrea, Ethiopia, Guinea, Ivory Coast, Kenya, Lesotho, Rwanda, Senegal and South Africa.
88. ACERWC, Concluding Observations and Recommendations of the African Committee of Experts on The Rights and Welfare of the Child to the Government of the Republic Of South Africa on its Second Periodic Report on the Implementation of the African Charter on the Rights and Welfare of the Child (2023) para 6; ACERWC, Concluding Observations and Recommendations of the African Committee of Experts on The Rights and Welfare of the Child to the Government of the Republic Of South Africa on its First Periodic Report on the Implementation of the African Charter on the Rights and Welfare of the Child (2019) para 7.
89. ACERWC, Concluding Observations and Recommendations by the African Committee of Experts on the Rights and Welfare (ACERWC) of the Child on the Second Periodic Report of the Republic of Rwanda on the Status of Implementation of the African Charter on the Rights and Welfare of the Child (2019) paras 9 and 10; Concluding Observations and Recommendations by the African Committee of Experts on the Rights and Welfare (ACERWC) of the Child on the Second and Third Periodic Report of the Republic of Rwanda on the Status of Implementation of the African Charter on the Rights and Welfare of the Child (n.d.) para 8.
