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The conundrum of imprisoning mothers with their Children

By Kuyang Harriet Logo Mulukwat

Judges pass sentences on female offenders and send them to jail for crimes committed. Jail terms are determined by the crimes committed. However, while the sentencing occurs, children are ignored. Some toddlers are incarcerated alongside their mothers. The Transitional Constitution of South Sudan – makes concessions on sentencing of both pregnant and lactating mothers, especially for capital offences. While incarcerating mothers has implications for a myriad legal issues related to custody, communication, visitation, conditions of confinement and international standards. The most crucial aspects of the prison term in South Sudan, is that little children are because of various challenges, sent to prison with their mothers. The issue then becomes what the relevance, if any of children of offenders in sentencing, prison locations and conditions of confinement. And to what extent and with what limitation or exceptions is there a societal interest in children maintaining a relationship with a convicted mother.

The dire situation of the prisons negate the questions asked regarding visitation, choice of detention facilities because such luxuries do not exist for mothers and their children. The prisons conditions are not standard and barely meet international best practices on the rights of persons under detention; and also barely meet the needs of mothers and their children who live with them in prison. The sight of mothers with their babies in prison is no unique situation to South Sudan; it is a global problem and gets worse if the prison facilities are like the ones in South Sudan, one of the worst in the world.

In, lactating and pregnant mothers get a little concession when it comes to sentencing, especially for capital offences. But for other categories of dependent minor children, the option of living with their mothers in prisons becomes a common occurrence. Even with the narrow sentencing guidelines in most areas , there are no formal mechanisms for family status or dependent children to come to the attention of the Judge – even just as a mitigating factor. International law offers a range of approaches to children rights that may provide a basis for children to claim a relationship with an incarcerated mother, but then it becomes extremely difficult to stop children from living with their parents in prison. South Sudan has domesticated the International conventions on the rights of the child and just recently, the African Charter on the rights of the child. Despite the progress made to protect the rights of the child, severe gaps exist. For this particular situation – the notion that familial ties and societal values will enhance the support for children who would otherwise be living with their children in prison, is barely happening and the reason is simple – there are meager resources to take in children whose parents (mothers) are in prison.

The only available option for such mothers is to then stay with their children in prison. The prison authorities know this is wrong, because it fundamentally tampers with the rights of children to live normal lives. But then, again, prisons authorities are at cross roads and very often do not know how to assist and at best, turn a blind eye. The plea of such mothers is moving and the situation of such children is disturbing – but it has been ongoing for a while now. Occasionally, UN agencies and NGOs visit the prisons and take along with them basic scholastic materials, such as books, pens, blankets, tents and some have even attempted conduct classes for the children in prisons – but these efforts are barely strategic and are usually spontaneous and one time activities.

Also the conditions of living in the prisons are far from meeting international standards. Therefore, children stand a risk of missing out on requisite formative steps and normal environment which will nurture their proper development. “The concept of the best interest of the child” is broad and normally applied in all matters concerning the child. In determining matters relating to a child, best interest is central to making decisions. For the situation in South Sudan, it is sometimes in the best interest of the child to have them live with their mothers in prison. Some of the mothers have been denied by their families and relatives and therefore, their children stand little chances of survival. Those who survive might turn to the streets to make a living. The situation is ever present and additional support has been provided to government to look into such situations and devise a way forward, but most of the efforts have yielded nothing so far, on the contrary the numbers of children with their mothers in prisons is on the rise. Strategies must be put in place to find workable solutions to such children.

The writer is a lecturer at the College of Law, University of Juba and is a legal expert on Democratic Governance and the Rule law and a continuing scholar.










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