The applicability in contemporary Africa of regional human rights law dealing with the imprisonment of mothers

Abstract

This study argues that the inflexible and generalizing character of article 30(d) of the African Charter on the Rights and Welfare of the Child impedes, in some cases, the realization of the best interests of children of incarcerated mothers in contemporary Africa. This rigidity issue and its consequences are partially addressed by General Comment No 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 , which promotes an individualized and more flexible approach with respect to the decision of allowing children to reside in prison with their primary caregivers or separating them. However, a general comment is limited by virtue of being a soft law. Therefore, the author recommends that the Committee explores the possibility of amending the provision of article 30(d). In the meantime, the author also recommends that General Comment No 1 should be popularized and by doing so its normative value might be strengthened.