Outlawing corporal punishment in schools, homes and prisons: The issues
By Johanne Mhlanga
I have been following with interest the debate and court case on the 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. 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 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.
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), 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 among other 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 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? 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. 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 the final analysis, this issue must be presented to the different players and stakeholders to submit their inputs before radical changes are put in place. Probation Officers, psychologists, sociologists and anyone who matters must have their views heard in this case.
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 email@example.com