Internationally,
corporal punishment is regarded as violence against children and as a
breach of fundamental human rights. It is considered inhuman and
degrading as it violates children's physical integrity and
demonstrates disrespect for human dignity and undermines the
self-esteem of children. It is said to treat children as half-human
beings thereby breaching the principle of equal ...
Internationally,
corporal punishment is regarded as violence against children and as a
breach of fundamental human rights. It is considered inhuman and
degrading as it violates children's physical integrity and
demonstrates disrespect for human dignity and undermines the
self-esteem of children. It is said to treat children as half-human
beings thereby breaching the principle of equal protection before the
law and non-discrimination.
There
are regional and international conventions which protect these rights
and the right to freedom from torture, inhuman and degrading
punishment. Zimbabwe has ratified and acceded to some of them. It
ratified the Convention on the Rights of the Child on 11 September
1990 and the African Charter on Human and Peoples' Rights (ACHPR)
on 30 May 1986. It acceded to the International Covenant on Civil and
Political Rights (ICCPR) on 13 May 1991 and to the African Charter on
the Rights and Welfare of the Child on 19 January 1995.
Under
the African Charter on Human and Peoples' Rights, under Article 3 -
“1.
Every individual shall be equal before the law.
2.
Every individual shall be entitled to equal protection of the law.”
Under
Article 5 -
“Every
individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status.
All forms of exploitation and degradation of man particularly
slavery, slave trade, torture, cruel, inhuman or degrading punishment
and treatment shall be prohibited.”
Under
The International Covenant on Civil and Political Rights, under
Article 7 -
“No
one shall be subjected to torture or to cruel, inhuman or degrading
treatment and punishment.”
Under
Article 4(2), even in times of public emergency, no derogation from
Article 7 may be made. Under Article 26 -
“All
persons are equal before the law and are entitled, without any
discrimination, to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.”
Under
The Convention on the Rights of the Child, the following provisions
are relevant;
“Article
1
For
the purposes of the present Convention, a child means every human
being below the age of eighteen years unless under the law applicable
to the child, majority is attained earlier.
Article
2
1.
States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her
parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin,
property, disability, birth or other status.
2.
States Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or
beliefs of the child's parents, legal guardians, or family members.
Article
37
States
Parties shall ensure that:
(a)
No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital punishment nor
life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age.”
Under
the African Charter on the Rights and Welfare of the Child the
following are the relevant provisions;
“Article
1: Obligation of States Parties
1.
Member States of the Organization of African Unity Parties to the
present Charter shall recognize the rights, freedoms and duties
enshrined in this Charter and shall undertake to the necessary steps,
in accordance with their Constitutional processes and with the
provisions of the present Charter, to adopt such legislative or other
measures as may be necessary to give effect to the provisions of this
Charter.
2.
Nothing in this Charter shall affect any provisions that are more
conductive to the realization of the rights and welfare of the child
contained in the law of a State Party or in any other international
Convention or agreement in force in that State.
3.
Any custom, tradition, cultural or religious practice that is
inconsistent with the rights, duties and obligations contained in the
present Charter shall, to the extent of such inconsistency, be
discouraged.
Article
2: Definition of a Child
For
the purposes of this Charter, a child means every human being below
the age of 18 years.
Article
3: Non-Discrimination
Every
child shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in this Charter irrespective of the child's
or his/her parents' or legal guardians' race, ethnic group, colour,
sex, language, religion, political or other opinion, national and
social origin, fortune, birth or other status.
Article
16: Protection Against Child Abuse and Torture
1.
States Parties to the present Charter shall take specific
legislative, administrative, social and educational measures to
protect the child from all forms of torture, inhuman or degrading
treatment and especially physical or mental injury or abuse, neglect
or maltreatment including sexual abuse, while in the care of the
child.
2.
Protective measures under this Article shall include effective
procedures for the establishment of special monitoring units to
provide necessary support for the child and for those who have the
care of the child, as well as other forms of prevention and for
identification, reporting, referral, investigation, treatment, and
follow-up of instances of child abuse and neglect.
Article
17: Administration of Juvenile Justice
1.
Every child accused or found guilty of having infringed penal law
shall have the right to special treatment in a manner consistent with
the child's sense of dignity and worth and which reinforces the
child's respect for human rights and fundamental freedoms of others.
2.
State Parties to the present Charter shall in particular:
(a)
Ensure that no child who is detained or imprisoned or otherwise
deprived of his/her liberty is subjected to torture, inhuman or
degrading treatment or punishment.”
By
becoming a State Party to the above-mentioned conventions, Zimbabwe
indicated its consent to be bound by these conventions. As such, it
has international legal obligations to respect, protect and fulfil
human rights for everyone within its jurisdiction. As a State Party,
it is duty-bound to enact the necessary legislation to give domestic
effect to them. It is evident from Part 3 of Chapter 4 of the new
Constitution that Zimbabwe has endeavoured to fulfil its
international legal obligation in protecting the rights of the
children. Section 81 thereof elaborates on the rights of children. Of
significance are sections 81(1)(a) and 81(1)(e) which make it clear
that children are not half-human beings as they ought to be treated
equally as adults and protected from all forms of abuse including
violence. They read as follows:
“81(1)
Every child, that is to say every boy and girl under the age of
eighteen years, has the right -
(a)
To equal treatment before the law, including the right to be heard;
(b)….,.
(c)….,.
(d)….,.
(e)
To be protected from economic and sexual exploitation, from child
labour, and from maltreatment, neglect or any form of abuse.”…,.
This
elaboration of the children's rights, in conformity with the
regional and international conventions that Zimbabwe has ratified,
demonstrates that the new Constitution does not allow for the
imposition of corporal punishment anymore.