Africa The Law and the Protection of the Family in Sentencing Primary Caregivers of Children: Practice from a Few African Countries

Summary

INTRODUCTION

Courts in many African countries have always had the discretion to consider many factors in determining the appropriate sentence to impose on an offender. Factors that have been considered traditionally have included the seriousness of the offence of which the offender has been convicted, the personal characteristics of the offender, and the interests of society. The issue of whether an offender is a primary caregiver of young children has until recently not been considered as an independent factor in deciding the sentence to impose on the offender. As far as the author's research could establish, South African courts were the first in Africa to expressly hold that the interests of children have to be considered as an independent factor in determining what sentence to impose. There are many decisions from South African courts dealing with the issue of sentencing primary caregivers of young children. Guidelines have also been issued requiring magistrates in South Africa to consider the interests of children when determining the sentence to impose on their primary caregivers. Some countries such as Uganda and Namibia have started considering the interests of children in sentencing their primary caregivers. In 2013, the African Committee of Experts on the Rights and Welfare of the Child's adopted General Comment No. 1 on Children of Incarcerated and Imprisoned Parents and Primary Caregivers. The purposes of this chapter are: to highlight the jurisprudence and/or guidelines from South Africa, Uganda and Namibia dealing with sentencing primary caregivers of young children; and to suggest ways through which that jurisprudence and practice could be enriched by the African Committee of Experts on the Rights and Welfare of the Child's first General Comment – 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. I will start by highlighting the jurisprudence from South Africa, followed briefly by that from Uganda and finally that from Namibia.

SOUTH AFRICA

Section 28 of the South African Constitution provides for the rights of children. South Africa is also a state party to international and regional human rights instruments which provide for the rights of children.