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.
