Lawfulness of corporal punishment

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Corporal punishment is lawful in the home.

Children are protected from severe violence by the Penal Code (1976) (articles 407-412), and from torture and cruel, inhuman or degrading treatment or punishment by the Constitution (2004). Article 54 of the Constitution states: “Family is a fundamental unit of society and is supported by the state. The state adopts necessary measures to ensure physical and psychological well being of family, especially of child and mother, upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam” (unofficial translation). Articles 774-789 of the Civil Code (1976) cover “Bodily Offences” and compensation for damage received.

A new Juvenile Code (Law of investigation on children violations) was enacted in 2005, which provides for children in conflict with the law, children at risk and children in need of care and protection. Article 7 prohibits severe and degrading punishment. According to the Ministry of Justice, this prohibits all forms of physical and humiliating severe punishment against children (even if applied for the purpose of correction or discipline). In an official statement released in 2005, the Ministry drew attention to the task of “safeguarding [children] against all forms of physical and psychological punishment and scolding” and stated: “[I]t is announced that the use of any form of violent behaviours and beating and humiliating of children that breaches their human rights ‘to be respected and treated with dignity’, is prohibited. It necessarily follows that all families, counterparts, educational institutions (formal or informal), national and international organisations, instructors and all individuals who are in any form involved in dealing with children to explore ways by which they can eliminate this huge constraint on the child’s development.”

At a meeting of the South Asia Forum in July 2006, following the regional consultation in 2005 of the UN Secretary General’s Study on Violence against Children, the government made a commitment to prohibition in all settings, including the home.

Schools

There is no explicit prohibition of corporal punishment in schools, where physical punishment of students is widespread, particularly in religious madrasas. The Afghanistan Educational Act (1968) makes no reference to corporal punishment or other disciplinary matters. The Penal Code and Constitution prohibit severe abuse, and the new Juvenile Code (see above) applies. In 2004 the Ministry of Education issued a letter to all schools prohibiting severe beating of children by teachers, and in June 2006, working closely with Save the Children Sweden-Norway, the Ministry of Education stated: “It is announced that the use of any form of violent behaviours and punishment against children are seriously prohibited.” The prohibition is yet (July 2006) to be confirmed in legislation.

Penal system

Corporal punishment is unlawful as a sentence for crime. The new Juvenile Code (see above) reforms the juvenile justice system. According to legal opinion, it contains a provision for reprimand (“towbegh”) and corporal punishment is one form of reprimand but the Juvenile Court does not sentence juvenile offenders to corporal punishment. Article 1 of the Penal Code states that “[t]hose committing crimes of Hodod, Qassasa and Diat shall be punished in accordance with the provisions of Islamic religious law” but the Code does not apply to juvenile offenders other than defining the crime. Under article 24 of the Constitution (2004), the state “has the duty to respect and protect the liberty and dignity of human beings”, and article 29 prohibits torture and “punishment contrary to human integrity”.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. Severe punishment is prohibited under the new Juvenile Code (article 7) and the Penal Code (articles 407 and 412). Applicable law includes the Law on Prisons and Detention Centers (2005) and the Decree on the Method of Caring and Oversight of Children Under Detention and Juvenile Correction Centers (2003), but we have no details of their provisions. The Children’s Rehabilitation Centre prohibits in policy and practice the use of corporal punishment, and as at September 2005 Regulations were under discussion.

Alternative care

There is no explicit prohibition of corporal punishment in other institutions and forms of childcare. The provisions against violence in the new Juvenile Code (see above), the Penal Code and the Constitution (see above) apply.

Workplace

No information.

Prevalence research

In a survey by Save the Children reported in 2003, 82% of children interviewed reported that slapping, kicking and hitting with a stick are common forms of punishment. Hair and ear pulling were reported by nearly 6% of children. Over half reported being hit or severely beaten for being noisy or naughty, almost a quarter for not learning their school lessons, and nearly one in ten for disobeying adults.
(Save the Children Sweden Afghanistan, 2003, Mini Survey Report on Corporal Punishment, Kabul: Save the Children, cited in Jabeen, F., 2004, Corporal/physical and psychological punishment of girls and boys in South and Central Asia Region, Save the Children Sweden Denmark)

Recommendations by human rights treaty bodies