CHILDREN OF INCARCERATED PARENTS

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The increasing number of women offenders has left many governments of today faced with a dilemma on how to handle some challenging cases involving mothers with infants or pregnant mothers at the time of sentencing. It is a fact that the children accompanying their mothers or born in prison have not committed any crime and, as such, the government has a special responsibility to ensure that the children’s rights and welfare needs are maintained during their stay with their mothers in prison. A criminal conviction of a mother should in no way diminish or undermine the rights of the child^[1]. The world over, prisoners and their children are at the periphery of government priorities and their rights as human beings are often forgotten and overlooked. Robertson^[2] rightly observed, that children of incarcerated parents are often ignored by the prison system and officials, with their needs and best interests in most cases unmet.

Background

In Zimbabwe, a child is only allowed to live in prison with his/her incarcerated mother up to the age of (two) 2 years, upon which the child is moved to stay with relatives or an institutional home if there are no relatives willing to take custody of the child. It is estimated that as at December 2017, more than 50 children were accompanying their mothers in Zimbabwe’s prisons across the country after more than 60 children were released together with their mothers under a Presidential Amnesty in 2014. The majority of the children were less than 2 years old^[3].

These children accompanying their incarcerated mothers are entitled to government support in the form of basic necessities essential for their life, survival and development. However, findings from my research undertaken between June and December 2017^[4] revealed that the Government was struggling to meet fully the basic needs of the children, especially with respect to their rights to health, food and nutrition, clothing, shelter, safe environment and recreation due to constrained fiscal space. The research established that the Government continues to rely heavily on donor support for the upkeep of the children, which is not sustainable. Generally, the African prison system has become synonymous with a host of challenges, such as overcrowding, abusive and vile living conditions, deficits of good governance, inadequate food and proper clothing, funding and other resources,^[5] which might have detrimental

Case Study of Chikurubi Female Prison, Post Graduate Diploma in

Child Sensitive Social Policies, Women’s University in Africa

effects on the lives of the children accompanying their incarcerated mothers.

Basically, children below the age of five are expected to grow in a natural environment that allows for early childhood development which is essential to their future outcomes and competences. These children are said to be in the most critical stage whereby brain development is taking place. Scientists and educators have identified the first three years of life as a time when children have the most ‘fertile minds’, hence efforts to invest in children during these early years is a prerequisite and most fruitful.^[6] Therefore, the decision to have children reside in prison when parents are incarcerated has both negative and positive consequences on the child’s well-being and development.

The International Perspective of Children’s Rights

The United Nations Convention on the Rights of the Child (UNCRC) of 1989 outlines the civil, political, social, economic and cultural rights entitled to children regardless of their circumstances. In order to contextualize the children’s rights from an African perspective, the then Organisation of African Unity (OAU)^[7] adopted the African Charter on the Rights and Welfare of the Child (ACRWC) in 1990, which only came into force in 1999. The Children’s Charter goes a step further than the UNCRC by calling for special provisions to be made to ensure that women prisoners maintain meaningful contacts with their children. In short, the ACRWC calls upon its members to ensure provision of noncustodial sentences, alternative measures to institutional confinement, establishment of alternative institutions to hold such mothers or that the mother shall not be imprisoned with her child, and that the mothers shall not face a death sentence. Thus, these provisions make the ACRWC unique in mandating African countries to take into account the best interest of the child principle at all costs in their justice systems.

The Legislative and Policy Framework in Zimbabwe

First and foremost, the legislative and policy framework in Zimbabwe is premised primarily on the UNCRC and the ACRWC, while the prison system is guided by the various international rules and regulations, namely; the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRs) and the Bangkok Rules, among others, which should be or have been domesticated through the Constitution and the various pieces of legislation, including the Prisons Act (Chapter 7:11).

Sections 19 and 81 of the Constitution^[8] have key provisions that relate to the rights of every child in Zimbabwe including children accompanying their mothers in prison. In addition, Section 58 of the Prisons Act (Chapter 7:11) clearly stipulates that, infant children may accompany their mothers in prison for a certain period of time, upon which when the child turns 2 years, he/she is removed to stay with relatives or an institutional home. Thus, Zimbabwean laws allow the admission of infants into prison with their incarcerated mothers. Section 58 further stipulates that the child “… may be supplied with clothing and necessities at the public expense …” Thus, the provision obliges the Government to meet the children’s basic needs, while in prison with their mothers. These basic necessities mainly relates to food and nutrition, proper and safe shelter, clothing and health, education among others as stipulated under Article 6 of the UNCRC, Article 5 of the ACRWC and Section 81 of the Constitution.

Status of Children Accompanying their Incarcerated Mothers in Zimbabwe Prisons

From the outset, it is important to note that the prison infrastructure in Zimbabwe were specifically built to accommodate male prisoners only, thereby making the prison conditions unbearable and discriminatory in nature to the female offenders. Regrettably, these conditions are still far from meeting the basic human rights need of the female offenders themselves and worse still the children accompanying them. Winslow as cited by Rupande & Ndoro^[9] argued that the prison conditions in Zimbabwe remain harsh and life threatening, extremely overcrowding while inmates experience shortage of warm clothing and poor sanitary conditions persists. This view corresponds with the Human Rights Bulletin,^[10] which also argued that the conditions of prisons in Zimbabwe remain a challenge as they continue to be overcrowded with poor water and sanitation, inadequate food and medical facilities, nonavailability of transport, education and clothing, including the inability of the Zimbabwe Prisons and Correctional Service to provide for the basic necessities of the infant children of convicted mothers. The Human Rights Bulletin further indicated that the rations distributed in prisons are specifically for prisoners only, thereby implying a denial of access to basic human rights to the child accompanying its mother. This denial to the basic necessities of life essential for the children’s physical, mental, spiritual, moral and social development might be detrimental to their wellbeing.

The ideal situation is that the prison conditions consist of child-friendly facilities aimed at meeting the basic needs of the children accompanying their incarcerated mothers.^[11] Hammarberg^[12] pointed out that where infants are allowed to stay in prison with a parent, special provisions shall be made for a nursery and crèche staffed by qualified persons, where the infants shall be placed when the parent is involved in prison routine activities.

Whereas, the Zimbabwean Government has taken steps to establish child friendly facilities such as nurseries and crèches within the prison structures, it is depressing to note that such infrastructure is only available at Chikurubi Female Prison. A report by Parliament of Zimbabwe’s Portfolio Committee on Women Affairs, Gender and Community Development (2016) highlighted that the children accompanying their mothers in prison continue to be side-lined in policy making. The Committee established that in most cases the children do not have access to the basic necessities of life, such as warm clothing, food and nutrition, water and sanitation, education and health. Robertson^[13] rightly pointed out that the environment for children should be clean and hygienic, with access to ‘proper food, water and clothing (including baby items). However, in Zimbabwe’s prisons, the conditions are different and very dangerous for children. The prison infrastructure has not been upgraded since independence in 1980 such that most of the prison facilities are not habitable and conducive for female offenders and their children. The

Constitution acknowledges the right of children to shelter, safe environment and recreation as crucial for their survival and development. However, night dawns at 4pm in Zimbabwe’s prisons whereby the inmates together with their children are locked up in the dormitory cells where the space for children’s play is limited. The children spend the night in the overcrowded big room with their mothers where they witness unsuitable different characters and behaviours from the inmates, thus compromising on the children’s rights to a safe shelter and sound environment.

Children living with their mothers in prison are entitled to on-going health-care services, including vaccinations and preventive care, while their development should be monitored by specialists, to assess any negative effects of living in a closed institution.^[14] While the establishment of some clinics within the prison system is a sign of government commitment towards promoting access to healthcare facilities by inmates and their children, most of the clinics are under resourced, without most of the critical drugs for the children.

The children are also entitled to proper food and nutrition essential for their growth, survival and development. However, the study established that the food provided to all inmates including their children had dietary deficiencies which compromised the children’s fundamental rights to nutritious food. While the introduction of the

Statutory Instrument on the ‘Dietary Scale for Children’ by the ZPCS in 2014 may be applauded, its implementation remains underfunded while donor support has grossly declined, thereby worsening the plight of the children.¹⁵

The children’s right to clothing is also seriously undermined as government provides for inmates’ uniforms only. In the event that a mother is admitted into prison without any changing clothes for the child, the child is not given any clothing by the government. According to the prison standards, an inmate upon admission is entitled to 5 blankets and 3 blankets for the child but due to shortages, this has not been possible as only blankets for the inmates are available. The Zimbabwe Human Rights Commission’s Annual Report (2016, 18) highlighted that the acute resource shortages at Zimbabwe prisons as a result of poor financial support has significantly impacted on the prison’s capability to cater for adequate nutritious food, education, bedding, clothing, sanitation and drugs which is detrimental to the well-being of the mothers and their children.

On a daily basis, the mothers and children barely get by and rely heavily on unreliable well-wishers who visit the prisons to donate mostly food, clothing and toys. The donations from wellwishers and non-state actors have been positive and greatly boosted the food and nutrition, clothing, health and education needs of the children. However, from a child rights programming perspective, the over-reliance on the donor community is not sustainable as it exposes the children to hunger, ill-health and the harsh weather when the donations are not readily available.

Conclusion

The research revealed that the children accompanying their mothers in Zimbabwe’s prisons suffer more than the offenders as they are exposed to the poor, unhealthy and overcrowded life of prisons.

Policy Options

The ZPCS should adopt child programming in budgeting in order to meet the basic needs of such children in difficult circumstances;
The ZPCS should develop and implement clear guidelines outlining the conditions that are appropriate for the admission of children of incarcerated mothers.
The Ministry of Justice Legal and Parliamentary Affairs should consider alternative sentencing options, such as avoiding pre-trial detention and imposing noncustodial sentences (community service, house arrest or the open prison system) to deserving female offenders with caring responsibilities as stipulated in the ACRWC, the UNSMRs and the Bangkok Rules as measures to reduce the fiscal burden while at the same time considering the Best Interest of the Child principle.
The Portfolio Committee on Justice Legal and Parliamentary Affairs should review the Prison’s Act to align it with international practice.

[1] Boudin (2011), Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship, Journal of

Criminal Law and Criminology, 101(1) p 77-118 Available at

SSRN: https://ssrn.com/abstract=1708682 on 20 October 2017

[2] Robertson O. (2008) Children Imprisoned by Circumstance, The Quaker United Nations Office, Geneva, Switzerland

[3] Kakore N (2015), 36 babies behind bars, The Herald of 20 January 2015 Available at http://www.herald.co.zw/36 -babies behind -bars/ on 28 November 2017

[4] Precious Sibongile Mtetwa (2017) A Critical Analysis of the Government of Zimbabwe’s obligation to Uphold the Rights and Welfare of Children Living with their Incarcerated Mothers: A

[5] Agomoh U, (2014) A Critical Analysis Of The Current Situation Of Female Offenders In African Countries, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI), Available at https://www.unafei.or.jp/publications/pdf/13th_Congress/14_PRA

WA.pdf on 22 November 2017

[6] Danziger. S & Waldfogel. J (2000) Investing in Children: What

Do We Know? What Should We Do? Centre for Analysis of Social

Exclusion, London School of Economics, London

[7] Now African Union

[8] Constitution of Zimbabwe (Amendment No. 20) of 2013

[9] Rupande G & Ndoro I, 2015, Challenges Faced by the Zimbabwe

Prison Service in Implementing Prison Rehabilitation Programs: A

Case of Marondera Prison, in International Journal of Innovative Research and Development

[10] Human Rights Bulletin, no. 71, March 2012, Prisoner’s Rights Available at http://www.hrforumzim.org/wp content/uploads/2012/03/Bulletine -71 -English.pdf on 15

September 2017

[11] Wolleswinkel (2002) Children of Imprisoned Parents: Taken from: Jan C.M. WILLEMS (ed.), Developmental and Autonomy Rights of Children: Empowering Children, Caregivers and Communities, Intersentia: Antwerp/Oxford/New York, 2002, pp. 191-207 (www.intersentia.com)

[12] Hammarberg, 2009, Children and Prisons, What can we do

Better? Commission for Human Rights

[13] Robertson O. (2012) Collateral Convicts: Children of incarcerated parents: Recommendations and good practice from the UN Committee on the Rights of the Child Day of General Discussion 2011, The Quaker United Nations Office, Geneva,

Switzerland

[14] Barzano P (2011), The Bangkok Rules: An International

Response to the Needs of Women Offenders, Resource Material Series No.90 Available at

http://www.unafei.or.jp/english/pdf/RS_No90/No90_11VE_Barza no.pdf on 27 September 2017 ¹⁵ Kakore, 2015, Ibid

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