Dilapidated infrastructure, congestion, poor water and sanitation, meagre food rations, inadequate medical care – these characterise prison facilities in Zambia. This often results into outbreaks of water-borne and food-borne diseases, including dysentery and cholera. HIV and tuberculosis remain rampant in the prisons.
It is a grim picture of the harsh and life-threatening environment in which female prisoners’ children who come with their mothers into prison are exposed to. These children, referred to as “circumstantial children”, are not in conflict with the law, but their (incarcerated) mothers’ circumstances place them in prison.
These innocent “silent casualties” are locked up and confined within prison walls, in facilities meant to reprimand offenders, transform and rehabilitate convicts to become better citizens in society.
The State of Prisons in Zambia
The Zambia Prison Service operates 89 prison facilities nationwide, of which 54 are standard prisons, 33 are open-air prisons and two are juvenile reformatories.
A 2011 research survey conducted by the Prisons Care and Counselling Association (PRISCCA), indicates that these prisons are overcrowded, as those built to hold 6,700 inmates held about 17,000. Of these, a total of 1,316 were women inmates and 412 circumstantial children from the age of breastfeeding infants to five are incarcerated with their mothers.
A pilot project funded by the Zambia Governance Foundation highlighted that statistics as of 5 November 2013, Kamfinsa State prison recorded 53 female prisoners and six circumstantial children; Kansenshi State prison had 26 circumstantial children, while Mukobeko Medium prison had 102 female prisoners with 13 circumstantial children. There seems to be no reliable statistics on how many children are in the prison throughout the country, but needless to say, there are many.
Facilities to ensure the health and development of these children are, to say the least, absent in these incarceration facilities. A 2013 Zambia Human Rights Commission report indicates that no special accommodation is made for young children who go with their mothers to prison. The report specifically states that the Prison Service does not have special diets for children who go in prison with their mothers. As such, inmate mothers share their food rations with their children. It further established that other needs such as clothing, bathing or washing soaps are not provided for these children.
According to psychologists the first five years of life are the most important in a Child’s development. The environment in which children are brought up equally affects the type of adult or citizens they will become. Clearly, the prison command is faced with a challenge to find the right and safe place for these children.
Legal Framework Provisions
The Zambian law under Section 56 of the Prison’s Act permits an infant child under the age of four of a woman to live with the mother in prison. Once the child reaches the age of four, the Zambia Prison Service is required to place the child with family members or friends able and willing to offer support. However, the family internal support system in Zambia has disintegrated due to poverty and HV/AIDS, and many other reasons: relatives are not able or ready to take the children in. In the absence of this option, the Prison Service is required to hand the child over to the social welfare authority to be placed in the custody of foster and adoption homes. However, the social welfare system in Zambia has its own insurmountable problems.
The prison regulations do not provide for the children’s welfare but leaves them under the discretion of the Officer in Charge, who merely plays a mediatory role between the incarcerated mother and their family members or friends. As such the children’s welfare is often dependent on outside help.
Zambia is signatory to international instruments; it ratified and domesticated the United Nations (UN) Convention on the Rights of the Child (CRC) and is party to several other international and sub-regional instruments on the rights of the child. Nonetheless, these children are exposed to and are adversely affected by the experience of growing up in prison regardless of the period.
Article 24 of the UN CRC states that: “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access to such health care services.”
The Convention quotes in its Preamble the Declaration of the Rights of the Child, which states: “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”
The Preamble further recognizes: “that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration.”
The Convention also puts forward the principle that a child must not be separated from his or her parents except under certain particular circumstances and that a child has a right to contact with both parents. The CRC also advocates for a number of principles aimed at protecting the rights of children, among them “the notion that a child has the right not to be discriminated against based on the parents’ status or activities”; “the necessity to respect the child’s best interests as a primary consideration”; and “the state’s obligation to ensure the child has the care band protection ‘as is necessary for his or her well-being’.”
While none of these provisions specifically addresses the situation of incarcerated mothers and their children, the principles pronounced in the CRC are often cited as the basis for a specific country’s treatment of children residing in prison with incarcerated parents.
Church organisations and some non-governmental organisations (NGOs) make donations which then help to supplement the regular food provided by the prison. These donations sometimes include clothes and detergents for use by incarcerated mothers with children.
For example, in a bid to make a difference in the lives of the children and woman living at the Lusaka central prison, Mother of Millions Foundations, a charity and non-governmental organization established in 2010 introduced a school within the prison facility, demarcating part of the dining hall and turning it into a day care and preschool. This was done with the permission and consent of Government through the Ministry of Home Affairs. The foundation has so far employed qualified pre-school teachers to teach and care for the children daily from Monday to Friday. The foundation has also incorporated a feeding program into the school program to make sure that the children received a balanced diet.
After class however the children retire to the prison cells, where they join the mothers. In these spaces, the children are prone to diseases of all kinds, due to overcrowding and lack of a safe homely environment.
Since the foundation opened the school, the children have been enlightened, inspired and have a place where they can freely learn, play and dream of becoming whatever they want to become. They spend seven hours of everyday in class with their teachers. Mothers of Millions Foundation believes prison walls can only confine the innocent children and cannot define them.
There is need for the revision and amendment of the Prison’s Act to ensure the rights of these circumstantial children are protected, and the time for Legislature to act is NOW.