The applicability of the best interests principle to children of imprisoned mothers in contemporary Africa: Between hard and soft law

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.