Abstract:
This article argues that article 30(d) of the African Charter
on the Rights and Welfare of the Child in fact, in some instances,
may impede the actualisation of the best interests of the children of
incarcerated mothers in contemporary Africa, due to its inflexible and
generalising formulation. The African Committee of Experts on the
Rights and Welfare of the Child attempted to address the limitations
inherent in article 30 by issuing its first General Comment on ‘Children
of incarcerated and imprisoned parents and primary caregivers’, which
promotes an individualised and far more flexible approach to the
decision of whether to prohibit or allow children to reside in prison with
their mothers. However, the persuasive value of a General Comment is
limited by virtue of belonging to the category of soft law. Therefore, the
African Children’s Committee should explore the possibility of amending
article 30(d) in order to preserve the best interests of children whose
mothers are incarcerated.
