On March 9, 2023, the High Court sitting in Harare issued a judgment acquitting a mother who had been accused of murdering her son, who was “barely 13 years old” by beating him to death.
The basis for the acquittal was that the mother “did not do anything outside the law” and that her beating of the deceased child “remained reasonable.”
However, Justice Munamato Mutevedzi, the presiding judge, erred in interpreting the law related to the discipline of children.
This opinion is not, however, about criticising his judgment.
Rather, it is about the banning of corporal punishment at home.
Although some of the basic errors are highlighted here to clarify the correct legal position, the arguments for banning corporal punishment at home are based on the fact that it is contrary to Zimbabwe's international law obligations and our constitution.
It also undermines efforts to protect children from all forms of violence, including violence in the home.
Section 241 of Zimbabwe's Criminal Law (Codification and Reform) Act (Code) outlines the law on the “discipline of children” and the administration of corporal punishment for disciplinary purposes upon children.
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This law permits parents and guardians to administer “moderate” corporal punishment to their minor children.
Therefore, section 241 of the Code provides a complete defence to any criminal charge alleging the commission of a crime of which the administration of punishment is an essential element, as long as the punishment was “moderate” and in the context of discipline at home, was administered by a parent or guardian.
It is worth noting that in Zimbabwe, corporal punishment has been prohibited in all spaces except for the home.
For section 241 to be applicable, a court must take into account various factors, including the nature of the punishment, the degree of force used, the reason for the punishment, the age, physical condition and sex of the minor and social attitudes towards disciplining children prevalent in the community, to decide if the corporal punishment was moderate or not.
From the law above, tying a child to a bed and “assaulting him with sticks and a fan belt” is nowhere near permissible.
Regardless of a child’s lack of discipline, I am not aware of any social attitude that deems such an act “moderate” and, therefore, acceptable.
The public should not get the impression that even under the current legal framework, such an act is permissible.
The justifications for corporal punishment are feeble.
Save for inflicting pain and instilling fear, it has no known benefits.
However, some individuals and cultures still hold onto the belief that it is an effective way of disciplining children, although this is not supported by evidence.
Even though the current legal framework permits the "moderate" beating of children, corporal punishment at home is a form of violence that has no place in modern societies.
It is detrimental to the well-being of children.
Below, I raise three arguments why corporal punishment at home should be banned in totality.
Firstly, Zimbabwe is a party to the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).
Article 19 of the CRC places an obligation on states to take measures to protect children from all forms of physical and mental violence, injury or abuse while in the care of parents or guardians or any other person in the care of the child.
These measures may include legislative, administrative, social and educational measures.
The body of independent experts tasked with monitoring the implementation of the CRC, the Committee on the Rights of the Child (CRC Committee), has interpreted Article 19 of the CRC to mean that States have an obligation to protect children from all forms of physical and mental violence, injury, or abuse while in the care of parents or guardians or any other person in the care of the child.
These measures may include legislative, administrative, social, and educational measures.
Furthermore, the CRC Committee has interpreted the CRC to mean that States have an obligation to abolish corporal punishment, “however light”.
The CRC Committee has also called for defences such as the one for “discipline of children” as provided in the Code to be repealed.
Again, and most importantly, for those who may seek justifications on religious grounds, the CRC Committee has said that while the right to freedom of religious belief is fundamental, the practice of a religion or belief must be consistent with the right of all persons to respect for human dignity and physical integrity.
In the review process of State parties' implementation of the CRC, the CRC Committee has specifically urged Zimbabwe to reform its laws to explicitly prohibit corporal punishment as a disciplinary measure, sensitise and educate parents, guardians, and professionals on the harmful effects of corporal punishment, and promote positive non-violent forms of discipline, including through providing training to parents and teachers.
Closer to home, Zimbabwe is a party to the ACRWC. Article 11(5) and article 20 (1) (c) of the ACRWC provides that State parties must ensure that any form of discipline administered to a child, including at home is carried out with humanity, respect for the child's inherent dignity and in accordance with the principles outlined in the ACRWC.
States, including Zimbabwe, must take appropriate measures to ensure that a child who is subjected to parental discipline shall be treated with humanity and with respect for the inherent dignity of the child.
Article 16 of the ACRWC requires state parties to take measures to protect children from all forms of physical or mental abuse, including corporal punishment at home.
Lastly, article 21(1) of the ACRWC provides that state parties including Zimbabwe have an obligation to take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child.
This includes eliminating harmful practices such as corporal punishment at home.
These international obligations are not meant to undermine the rights and responsibilities of parents and protection of family life in any way, but to protect children from some forms of violence which may irreparably affect them.
They are there to ensure that children’s human dignity and physical integrity are protected and respected.
Secondly, section 52 of our constitution guarantees every person the right to bodily and psychological integrity, which includes freedom from all forms of violence from public or private sources.
Section 53 guarantees freedom from inhuman or degrading treatment or punishment. In addition, section 81 (1) (e) protects children from any form of abuse.
Corporal punishment at home violates these constitutional provisions and undermines the government's duty to protect children from violence.
In 2017, the High Court held that corporal punishment in school and at home was physical abuse of children.
As it turns out, in its periodic report to the African Committee of Experts on the Rights and Welfare of the Child on how it has implemented the ACRWC, the state has pointed out that the judgment was “provisionally set aside by the Constitutional Court.”
It is a pity that on March 15 while addressing traditional leaders in Bulawayo, President Emmerson Mnangagwa seemed to suggest that we should not emulate countries that have abolished corporal punishment at home, and parents should use corporal punishment, in words that do not suggest moderation.
This would be moving in the wrong direction, which is contrary to our international law and constitutional obligations.
The final argument is that corporal punishment is not an effective disciplinary method.
At the same time, it has been shown that corporal punishment, itself a form of violence, can have negative long-term effects on children.
To conclude, it is important to end the cycle of violence that we often expose children to.
Our international law obligations and our constitution require us to protect children from all forms of violence through, among other things, banning corporal punishment, including at home.
- *Nqobani Nyathi is a lawyer