The judge also correctly observed that her decision on that point of law has no legal force until it is confirmed by the Constitutional Court. This is in terms of s. 167(3) and s. 175(1) of the Constitution, both of which have the effect that it is only the Constitutional Court which has the final say on the constitutional validity of Acts of Parliament.
The judge suggested that the Prosecutor-General should bring the matter to the attention of the Constitutional Court, so that the highest court in the land can use the opportunity to make a final determination on the legal question of the constitutionality of corporal punishment on male juvenile offenders.
My view is that while the learned judge was right to make this suggestion to the Prosecutor-General, s. 175(3) is broad enough to include within its terms any person who might have and can demonstrate a sufficient interest to apply directly to the Constitutional Court to confirm or vary this important decision. Therefore, a civic organisation that represents the interests of youths or juveniles, or indeed human rights generally, should have locus standi as long as they can demonstrate sufficient interest. It is in the public interest that this important matter be brought to the attention of the Constitutional Court.
The main purpose of my note is to comment specifically on the issue of constitutionality of corporal punishment on male juvenile offenders. I do so for two reasons: First, a number of concerned parties have written to me asking for a commentary on the constitutionality of corporal punishment in the wake of the High Court judgment and the new Constitution. Second, this case illustrates one of major reasons why I set out to write my book on the making of the constitution, which book will be published later this year. That book has a section which deals directly with this matter, and it is appropriate that I share here in the public interest, in advance of the book’s publication.
In a chapter called “Law and Morality” the book addresses four issues carrying heavy moral tones which were debated and negotiated during the constitution-making process. These issues are termination of pregnancy (abortion), sexual orientation and gay rights, the death penalty and corporal punishment. In that chapter, I try to explain the provisions of the Constitution and the politics that led to their current formulation.
This piece is based on parts of that chapter, in so far as it relates to the issue of corporal punishment on male juveniles. And I explain what, from my point of view, was the thinking behind the current constitutional provisions and what I believe to be the constitutional position on the matter. I anticipate that this may disappoint and perhaps even outrage others, but my business here is neither to please nor to displease, but to state the law as I understand it.
Historical Overview: Judiciary v the Executive
The issue of whether or not corporal punishment should be permitted or banned in the new Constitution was a major point of debate. Corporal punishment administered on juvenile males by parents or guardians, or persons exercising parental authority, such as school authorities or by the State in executing a sentence ordered by a court of law was specifically permitted under s. 15(3) of the old Constitution. However, its history was not without controversy, and I must set out this background because it was important in the way the discussions progressed.
Corporal punishment had always been permitted, as a general rule until it was challenged and ruled unconstitutional by the Supreme Court in respect of adult males in the case of S v Ncube (1987) The Court stated that corporal punishment on adult males was a violation of s. 15(1) of the old Constitution, which prohibited torture, cruel, inhuman and degrading treatment or punishment. In coming to the decision the Court had stated as follows,
“The manner in which it is administered … is somewhat reminiscent of flogging at the whipping post, a barbaric occurrence particularly prevalent a century or so past. It is a punishment, not only inherently brutal and cruel, for its infliction is attended by acute pain and much physical suffering, but one that strips the recipient of all dignity and self-respect. It is relentless in its severity and is contrary to the traditional humanity practiced by almost the whole of the civilized world, being incompatible with evolving standards of decency”.
The Court was not persuaded by the argument in defence of corporal punishment that there were regulatory safeguards against abuse. It stated that,
“… it is a procedure easily subject to abuse in the hands of a sadistic and unscrupulous prison officer who is called upon to administer it. It is degrading to both the punished and the punisher alike. It causes the executioner, and through him society, to stoop to the level of the criminal”.
In a further case, S v A Juvenile (1989), the Supreme Court had come to the same conclusion holding that the corporal punishment of juveniles was unconstitutional.
However, the Government disagreed with the court on this point, and decided to swiftly amend the Constitution in order to specifically permit corporal punishment of male juveniles. It is because of this amendment, in response to the Supreme Court decision in S v A Juvenile, that s. 15(3) of the old Constitution stated that:
“No moderate corporal punishment inflicted – (a) in appropriate circumstances upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis or in whom are vested any of the powers of his parent or guardian; or (b) in execution of the judgment or order of a court, upon a male person under the age of eighteen years as a penalty for breach of any law; shall be held to be in contravention of sub-Section (1) on the ground that it is inhuman or degrading”.
The purpose of this amendment was very simple and straightforward. It was to overrule and reverse the Supreme Court judgment in S v A Juvenile that had outlawed corporal punishment on juvenile males. Its effect was to make corporal punishment constitutional.
Corporal punishment in the home, schools and alternative care settings, such as children’s homes, has therefore, been permitted under s. 241 of the Criminal Law (Codification and Reform) Act (2004) which states that “(2) (a) a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward”. It has also been permitted in schools for boys only under s. 66 of the Education Act (2004). Thus parents, guardians or persons acting in loco parentis, including school authorities, could inflict so-called “moderate corporal punishment” on male juveniles. However, there was no constitutional definition, indication or guideline on what constituted “moderate corporal punishment”.
In addition, it was clearly a discriminatory provision in that it did not apply to juvenile females, a point that I will address below.
Apart from this, there was some outrage over what some saw as an abuse of the ruling party’s parliamentary majority to reverse a judicial decision. The idea that the Government could, if it did not like a judgment, simply use its parliamentary majority to reverse an unfavourable decision was seen as dangerous for democracy and the notion of separation of powers. The fear was that such a practice could render judicial institutions powerless and ineffectual.
However, those who supported the Government’s move saw it as an important restoration of a key tool of maintaining discipline in homes, schools and society generally.
The episode demonstrated the different and diametrically opposed views on this matter, and the arguments had moral dimensions. It was the same division in views and arguments that was to characterise the constitution-making debate on this issue. There were the traditionalists or conservatives, who believed corporal punishment was a socially-acceptable and legitimate tool to maintain discipline in society and the liberals who believed corporal punishment exposed children to physical violence.
Paucity of Field Data
The real problem was that this was not an issue that had been properly covered or over which specific views had been comprehensively canvassed during the data-gathering process. Therefore, there was no clear answer from that the people had said, just as there was no clear answer on the issues of abortion and the death penalty.
I must declare my position here, and say that I was firmly in the camp of the liberals on this matter, although I understood and had some sympathy with the thoughts of my traditionalist and conservative counterparts. I know that a number of adults reading this are probably inclined to sympathise with the pro-corporal punishment side. Indeed, I thought that if the question had been put out to a public vote, the majority of adults might have voted in favour of corporal punishment.
But the issue here was not just about what adults or parents wanted – it was also about the children and the protection of children’s rights, which had been heavily emphasised in the new Constitution.
Emphasis on Children’s Rights
The data from the field had certainly demonstrated clear evidence of demands for enhanced protection of children’s rights. The Constitution also had clear provisions on children’s rights. S. 19(1) on the National Objective in relation to children states that, “The State must adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount”. It states further in s. 19 (2) that “The State must adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children— … (c.) are protected from maltreatment, neglect or any form of abuse”.
The argument was that in light of abuses inflicted upon children under the guise of applying corporal punishment, it was necessary to ensure that the Constitution did not specifically sanction forms of conduct that could increase the risk of abuse. Corporal punishment was one such form of conduct. The warnings of the Supreme Court in the cases of Ncube and A Juvenile were invoked, demonstrating that there was no way of controlling the use of such punishment and that it was therefore open to abuse, much to the detriment of children. It was argued that much of the abuse took place in spaces where it went unreported.
There was also the new right to personal security provided for in s. 56 of the Constitution. It states that,
“Every person has the right to bodily and psychological integrity, which includes the right—
(a) to freedom from all forms of violence from public or private sources …”
This includes freedom from corporal punishment, which itself is a form of violence – whether administered privately or by the State in the execution of a sentence. The United Nations Committee on the Rights of the Child, established under the UN Convention on the Rights of the Child, has recognised that corporal punishment is an important issue in the prevention of all forms of violence in society.
Further, there was an argument that corporal punishment offends against the dignity of children, contrary to s. 51 of the Constitution which provides that, “Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected”.
A Matter of Discipline
Although there were political party differences on this issue, the debate cut across political party lines. This was a moral issue, like abortion and the death penalty which united people who might otherwise have disagreed on other political issues. Nevertheless, it was a Zanu PF government that had reversed the Supreme Court decision in S v A Juvenile and some of Zanu PF’s representatives felt compelled to resist any reforms in this area.
The major argument advanced in favour of corporal punishment was that it was a necessary and socially-accepted form of discipline which helped in enforcing good morals and proper behaviour among children. The existence of corporal punishment and the possibility that it could be used was believed to give children an incentive to behave well and to maintain discipline.
The belief among most proponents of this notion was that administering “moderate chastisement” was part of traditional culture and that it helped in the building of a decent and well-behaved society. Many argued that there was a lot of indiscipline and immoral behaviour among the younger and more urbane generation, largely because their parents were “too soft” on their children.
They made reference to what they referred to as a “decadent and immoral Western culture” and its influence on youths and argued that children in those societies were too spoilt and without discipline or respect for authority or their parents mainly because corporal punishment was banned in those societies. Many cited the old adage that if you spare the rod, you risk spoiling the child. They argued that school authorities would struggle to maintain discipline if their powers to use corporal punishment were taken away.
Violence and Gender Discrimination
The counter-argument was that there were other ways of disciplining children rather than exposing them to the risk of excessive, harsh and cruel treatment under the guise of “moderate corporal punishment” which was undefined. There had been cases of abuse of children under the guise of administering corporal punishment and this was unacceptable.
A further counter-argument was that the provisions for corporal punishment under the old Constitution were patently discriminatory, since it could be imposed on male juveniles only and not on their female counterparts. The view that corporal punishment was good for discipline in society did not explain why the argument applied only to male juveniles but not to female juveniles. It was argued that permitting corporal punishment on boys but not on girls was a violation of s. 81(1) of the Constitution, which states that,
“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 …”
A rule that permitted corporal punishment on male juveniles but not on their female juveniles was a clear contravention of the equality principle embedded in this clause. It was also out of sync with the general theme of gender equality which is dominant in the Constitution. There was already the absurd provision on the death penalty, which outlaws the death penalty for women but not for men and that was bad enough without extending it to juveniles. It made sense that if banning corporal punishment worked for female juveniles, then the same should apply to male juveniles.
Influence of International Human Rights Law
This was also one of the instances where international human rights law was invoked, particularly noting Zimbabwe’s obligations as a state party to the United Nations Convention on the Rights of the Child. In addition, Article 7 of the International Covenant on Civil and Political Rights was invoked and it clearly states that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
The Global Initiative to End All Corporal Punishment of Children (www.endcorporalpunishment.org), which campaigns against corporal punishment across the world, describes it as a “very common form of violence against children”. The UN Secretary General’s Study on Violence against Children in 2006 recommended the universal prohibition of all forms of corporal punishment.
In 2006, the Committee on the Rights of the Child adopted General Comment No. 8 on “The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment”. The purpose of the General Comment is to reinforce states parties’ immediate obligation to prohibit all corporal punishment of children, including in the domestic environment. The Committee on the Rights of the Child recognised that corporal punishment was widely accepted and tolerated but pointed out that this was not a justification for it and that “addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is not only an obligation of States parties under the Convention. It is also a key strategy for reducing and preventing all forms of violence in societies.”
Evidence was submitted that when Zimbabwe submitted its report in 1996, the UN Committee on the Rights of the Child recommended prohibition of corporal punishment in the home, schools and penal system (CRC/C/15/Add.55, paras. 31 and 33).
Further, in 1998, the Human Rights Committee was concerned by the fact that the Constitution permitted corporal punishment. It made the point that corporal punishment was incompatible with Article 7 of the International Covenant on Civil and Political Rights (CCPR/C/79/Add.89, para. 21).
No Room for Exception
Those in favour of corporal punishment had made a proposition to have an exception to the protection from “physical or psychological torture or to cruel, inhuman or degrading treatment or punishment” in s. 53 so that corporal punishment on male juveniles would be permitted, as was the case under the equivalent provisions of the old Constitution (s. 15(3). This exception would allow for the administration of “moderate corporal punishment” on male juveniles.
This was heavily resisted on the grounds stated above but what proved to be the most persuasive view was that the protection against torture, cruel, inhuman or degrading treatment or punishment had already been entrenched as one of the non-derogable rights (rights that could never be taken away or reduced, even in emergencies) and that it would be unreasonable to make exceptions derogating from it. It was argued that any exceptions, such as the one that were being proposed, would be a claw-back on this fundamental and non-derogable right and that this was unacceptable. It was important to avoid anything that might dilute the absolute protection against this protection.
It was suggested that the matter should be left to the Constitutional Court so that if there is a law that permits corporal punishment and therefore limits the rights in s. 53, the Court would have to determine the limitation satisfies the conditions in s. 86 which require that a limitation must be “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors …”
In the end however, the matter was settled very simply by s. 86(3) of the Constitution which states that,
“No law may limit the following rights enshrined in this Chapter, and no person may violate them
(c.) the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment”
The effect of this provision is to make the rights in s. 53 absolute and non-derogable. In layman’s terms, it means that no law, policy or code may claw back on the rights provided for in s. 53, i.e. the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment.
We know from the old Constitution that corporal punishment was allowed as an exception to the rights equivalent to those protected under s. 53. S. 53 is different however from s. 15 in the old Constitution because it is now an absolute right protected from any derogations or qualifications. S. 15 in the old Constitution did not have the same protection that is offered by s. 86(3) in the new Constitution and this is why there was an exception to it, which allowed corporal punishment. If the intention was to permit corporal punishment, then s. 53 would have retained the specific exception, as was the case under s. 15(3) of the old Constitution.
This result will disappoint those who hold conservative views on matters of discipline and punishment, who therefore, believe in corporal punishment, but the fact of the matter is that corporal punishment is now outlawed and there is, quite simply, no room for it under the new Constitution. From a liberal human rights and children’s rights perspective, it is an excellent result. For traditionalists and conservatives who believe in the tough old methods, it has to be a complete nightmare.Human Rights