Outlawing corporal punishment in schools, homes and prisons: Issues and challenges

I have been following with keen interest the debate and court case before the Constitutional Court on abolition of corporal punishment in prisons, homes and schools. Mr. Tendai Biti of Biti Law Chambers and Mr. David Hofisi of the Zimbabwe Lawyers for Human Rights are challenging the legality of section 353 of the Criminal Procedure and Evidence Act (Chapter 9:07). A closer analysis of the facts for and against the abolition of the section as presented in courts reveals that there is need for a balancing act in reviewing this section. The authenticity of the instrument must be considered in view of its implications to children's and human rights in the context of the situation, that is, the prisons, homes and schools. Any attempt to ignore its implications in the three contexts provided will not do us any good.

As cited in the Herald 12 November 2015, Mr. Biti argues that the court must place our law at par with international instruments and any attempt to disregard that is tantamount to be dragging the country back to the 13th century. Basing on Mr. Biti's argument, it means that Zimbabwe must adhere to international instruments in totality. Mr. Biti is quoted saying, 'corporal punishment is retributive. It is like the use of an eye to an eye, a tooth for a tooth or a life for a life. It is both physical and psychological torture. There is no yardstick to determine the force used in corporal punishment.' I agree with Mr. Biti on that we need to move away from retributive justice to reformative and rehabilitative juvenile justice system. His views on juvenile justice reform are valid though it lacks the real critical issues. To me the real critical issues are the discriminatory nature of the juvenile justice system in which only boys are caned while girls are not. However, it should be borne in mind that the proposal to outlaw section 353 of the Criminal Procedure and Evidence Act will come with other problems. It will result in juvenile offenders being sentenced and to serve prison sentence. One has to be reminded that currently probation hostels in Zimbabwe are not effective. Many juvenile delinquencies are running away from those institutions and the tendency by those boys to fall in recidivism to commit similar or related crimes is very high. So we have limited options in as much as juvenile justice management is concerned. To me caning is still a good practice and a deterrent measure to would be offenders. Remember it is not administered in a barbaric manner. It is administered in the presence of a nurse, Prison Officer and qualified personnel to administer the punishment. We still need a habitable state in which children know that they are children. Therefore, the state's argument is valid and worth listening to. Sentencing juveniles to prison where they will stay in cells with habitual criminals will make them hard core criminals much to the chagrin of our society. The effects will be dire at individual level as well as to the society.

Meanwhile, in as much as people are seized with the need for juvenile justice reforms in the prisons; we should be quick to be remind each other that we should not address a problem by creating another problem or creating a worse situation. Calls for us to dance to the whims and caprices of human rights instruments are necessary though we need a balancing act. Remember when member states sign those international instruments; they have the rights to sign with reservation on certain aspects of the instruments basing on the unsuitability of the provisions to the local context. Attempts to export the juvenile justice system to homes and schools are tantamount to be creating anarchy in those two institutions. We need checks and balances on how children behave in schools and at home. We should not create problems for classroom practitioners and parents.

I feel that before the law is abolished there is need for a thorough introspection of the situation and consider its implications on children's rights and welfare. We then need as well to have a prognosis of the future and its implications on children's rights and welfare as enshrined in the UN Convention of the Rights of the Child (UNCR 1989) especially article 40 (1) which provides comprehensive framework within which states must fashion their juvenile justice system, the African Charter on the Rights and Welfare of the Child (ACRWC 1999), the international instruments on human rights as well as the Zimbabwe's Children's Act (Chapter 5:06), the Criminal Codification and Reform Act among other host national instruments. Our ability to juxtapose the implications of outlawing corporal punishment or any other law against these instruments and our own values and norms will ensure that we will come up with the best out of this. The process should not be motivated by the desire to outwit each other but it should be reflective on the implications for the good of our children in particular and Zimbabwe at large.

My advice to my fellow members of humanity is that our decisions must be reflective. We should ask ourselves several pertinent questions. What is the implication of outlawing or legalizing corporal punishment on our society? What are its implications on our children's behavior? How best can we balance children's rights and responsibility as a country? What has been the situation in the countries that outlawed corporal punishment in terms of their children's behavior? What has been the result of outlawing corporal punishment on children/ juveniles to the society? Are we not incentivizing mischievous behavior in our children in the name of human rights? What other means can be put in place to ensure that children enjoy their rights and privileges without creating an enabling environment for them to behave in wayward manner that will destroy the social fabric of our society? Are international legal instruments one size fits all? Our ability to answer some or all the questions will provide the basis for the best out of this legal battle. I urge all in sundry to avoid being emotional about the battle.

Again while I agree with the champions of human rights that we must do all our best to advocate for abolition of all forms of practices that are detrimental to our children in particular and society at large, I am equally hesitant to swallow everything that is 'international'. My reasons for that are that we have a unique society which is unique just like every individual's thump prints and as such we cannot afford to compromise on our values and norms for the sake of adhering to international instruments. While I am alive to the fact that we are a family to the global community, I still believe that that does not mean that we must be copy cats. Personally, I am afraid of copying and pasting for the sake of adhering to international instruments. Please quote me right, I am not saying that we must abuse our children. I for sure am one of the people fighting against child abuse in its totality. However, our decisions must not be guided by the monkey see monkey do attitude. I suppose what Uncle Tom does uncle Joe follows. That should never be our modus operandi as a country. We should do our best for our children but at the same time we should not spoil our children for the sake of adhering to international instruments. We still need a society with its children enjoying their rights but with morality. We have a value system to protect as Zimbabweans. Remember even the Bible teaches us in Proverbs Chapter 29 verse 15 that, 'Correction and discipline are good for children. If they have their own way, they will make their mothers ashamed of them.' And verse 17 of the same Chapter says 'Discipline your children and you can always be proud of them. They will never give you reason to be ashamed.'  

I therefore support, Advocate Thabani Mpofu's argument that what is degrading and inhuman should be determined by Zimbabweans and we cannot rely on decisions of other countries next door. We should not just make decisions for the sake of adhering to international instruments or for the sake of protecting Zimbabwean values and norms. But decisions must be well informed from the people who are affected and will be affected by the changes in the legal instruments. In other words, we need evidence based positions because policies must be grounded on sound evidence.

In the final analysis, this issue must be presented to the different players and stakeholders to submit their inputs before radical changes are put into full force. Probation Officers, psychologists, sociologists and anyone who matters must have their views heard in this case. This is where social workers, educationists, Ministers of Religion and our revered Traditional Chiefs should inform policies. What is legal does not translate into being socially acceptable. Legal provisions must be guided by the political, economic, social, technological and environmental realities of the country in which they are to operate. Any attempts to ignore these critical factors will do more harm than intended.

Johanne Mhlanga is a Social Worker and he writes in his own capacity. Views expressed in this article are his personal opinion regarding the matter at hand. He can be contacted at johannemhlanga82@gmail.com or +263 776 308 483