Together as a nation, we have the obligation to put sunshine into the hearts of our little ones. They are our precious possessions. They deserve what happiness life can offer. — Nelson Mandela
In 1954 the United Nations through Resolution 836 (IX) recommended the establishment of a Universal Children’s Day which we now celebrate annually on the 20th of November. It is befitting that we use this year's Universal Children’s Day to celebrate notable achievements made in advancing children's rights, identify matters of concern and devise strategies to deal with these moving forward. In this piece I will briefly speak to the recent South African Constitutional Court (CC) ruling on corporal punishment and highlight its significance in protecting children against all forms of violence in Africa.
South Africa has followed in the path pioneered by Sweden in 1979. The common-law defense of reasonable or moderate parental chastisement is now constitutionally indefensible following the CC decision in Freedom of Religion South Africa v Minister of Justice & Constitutional Development and Others  ZACC 34 to uphold the judgement made by the High Court in October 2017. As expected in such a matter of public interest the decision elicited mixed reactions. Some opponents of the prohibition on corporal punishment in the home suggest, inter alia, that it will result in increased prosecution of parents, it is an infringement on parents' right to raise their children according to their own convictions and religious beliefs, and that a bit of pain to the child just works better in disciplining. All concerns raised by the public should not be trivialized, it is in the best interest of children for the government and its partners to address them through awareness campaigns and other strategies guided by research, and advise from countries that have prohibited corporal punishment in the home.
The purpose of the judgement is not to send parents to prison as that would seldom be in the best interests of the child, but it serves to encourage parents to adopt non-violent ways of disciplining their children. In countries that prohibited corporal punishment and implemented public education campaigns on the harmful effects of corporal punishment and positive parenting methods of disciplining children, there has not been any significant increase in the prosecution of parents as had been anticipated by many. Instead positive changes in disciplining practices have been noted in addition to a decline in adult approval of the use of physical punishment. In accepting the CC judgement, we allow ourselves to be guided by research which shows the negative consequences corporal punishment has on child development and later adulthood, and its contribution to creating violent societies. For a country dealing with a problem of violence, the CC judgement is a step closer to accomplishing the goal of a non-violent society.
The defense of reasonable and moderate chastisement has been invoked by parents after brutalizing their children, for example the case which has culminated in the CC judgement in question in which a father kicked and punched his 13-year-old child for watching pornography. Research has shown that most violence against children occurs in the form of corporal punishment at the hands of people charged with the responsibility to care for them. The struggle to prohibit corporal punishment of children is a struggle to ensure that children gain equal legal protection from assault to that which adults enjoy and to ensure that the law explicitly prohibits the act through clear language that is not liable to misinterpretation.
South Africa signed and ratified the Convention on the Rights of the Child and therefore has an obligation to give effect to the provisions of the legal instrument. Article 19 of the Convention places an obligation on South Africa to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and emotional violence. General comment number No.13 (2011) further emphasizes that no violence ‘at all’ is permitted however light it may be and therefore renders the common law defense of reasonable and moderate chastisement inadmissible. Any judgement by CC different from the one given would have been inconsistent with the Convention and a failure to fulfill obligations placed on the State by International Law.
The recent South African CC judgement will most likely influence other countries on the African continent in prohibiting corporal punishment in the home considering that many countries had already expressed their commitment to doing so. In Zimbabwe corporal punishment is lawful in the home. The Children’s Act of 1972 under article 7 proscribes maltreatment and neglect of children and young persons but proceeds to uphold reasonable to moderate chastisement under section 6 where it states that, “Nothing in this section shall be construed as derogating from the right of any parent or guardian of any child or young person to administer reasonable punishment to such child or young person.” The Criminal Law (Codification and Reform) Act 2004 in article 241(2) also provides for moderate corporal punishment for disciplinary purposes by a parent or guardian. In its report to the UN Committee on the Rights of the Child in 2015, the Government of Zimbabwe indicated that article 53 of the Zimbabwean Constitution has the effect of prohibiting corporal punishment and noted that article 7 (6) of the Children’s Act which allows corporal punishment should be amended. There are pending cases that have been referred to the Constitutional Court that may result in corporal punishment being prohibited in the home and all legislation inconsistent with the Constitution being amended. The South African CC judgement may influence developments across the Limpopo River and in other African countries.
The problems that children face on the African continent are many, corporal punishment is just one of them. There is need for collaboration between governments, non-governmental organizations, and civil society to improve access to basic services and end child labor, malnutrition, child trafficking, denial of socio-economic rights to refugee children in host countries, and the involvement of children in armed conflicts. Every individual has a contribution to make towards creating a better world for the most vulnerable members of our societies.
About Tatenda Kaponda
Tatenda is reading for a Masters in Human Rights Law. He is passionate about a world that is safe for children. Zimbabwe is doing dismally in terms of drafting and implementing legislation for the protection of children's rights, and is ranked among the countries with the highest child sexual abuse prevalence rates globally. His aim is to work towards improving legislation and policy in Zimbabwe.