54. Article 30 (d) says that States must ensure 'a mother shall not be imprisoned with
her child.' This reflects the importance placed in the Charter for children to grow up
in a 'family environment in an atmosphere of happiness, love and understanding.'
This provision also reinforces the obligation on States Parties to provide alternatives
to pre and post trial custody for caregivers and/or pregnant women.
55. However, when it is decided that it is in children's best interests to live in prison
with their mothers then States Parties have the same obligations to respect, protect
and fulfil their rights as they do to any other child in their jurisdiction. A number of
safeguards need to be put in place. For instance, children‟s nutritional needs, in
particular optimal duration of breastfeeding, should be a relevant factor when
considering for how long children should live with incarcerated mothers. 16 There
should be regular assessments of which living environment is in a child‟s best
interests, and guidance should be prepared on how to conduct such assessments,
and how to do so in a way that does not damage parent-child bonding.17 National
Human Rights Institutions and other independent monitoring bodies should be
encouraged to participate in monitoring the treatment and conditions of children
living in prison with their mothers. It is also important to underscore the point that
law, policy and practice should emphasize that no child should remain in prison
following the release, execution or death of their incarcerated parents/mothers.
3.1.5 Ensure that a death sentence shall not be imposed on such mothers
56. Article 30 (1) (e) provides that States must ensure that a death sentence shall
not be imposed on pregnant women or mothers of young children. This is reiterated
in the Protocol on the Rights of Women in Africa in Article 4 (1) (j). Article 30
provides States Parties with clear direction on law prohibiting such sentences.
Almost every country in the world prohibits the death penalty for a pregnant woman.
However, some States Parties to the African Children's Charter only delay execution
until shortly after the birth in violation of Article 30 (1) (e)
16
Robertson, O., Collateral Convicts: Children of Incarcerated Parents: Recommendations and Good
Practice from the UN Committee on the Rights of the Child Day of General Discussion Geneva:
Quaker, 2012.
17
Ibid.
22