Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, penal system and alternative care settings.

Article 54(1) of the Penal Code (1976) confirms the rights of fathers and teachers to punish sons and students, and legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment in “disciplining” children necessitates clarity in law that all corporal punishment, however light, is prohibited. Article 54(1) should be repealed and explicit prohibition enacted of all forms of corporal punishment by parents and others with authority over children.

The law should make clear that no child convicted of an offence can be sentenced to any form of corporal punishment, including under Islamic law. Explicit prohibition should be enacted of corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law and in all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 54 of the Penal Code (1976) states: “Commitment of criminal act in the following instances is considered exercise of right: (1) In the punishment of son and student by father and teacher, provided the punishment is within the limits of religious and other laws....” The Juvenile Code (2005) prohibits “contemptuous and harsh punishment, even if for correction and rehabilitation purposes” (article 7), but does not prohibit all corporal punishment in childrearing.

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

Corporal punishment is prohibited in schools in article 39 of the Education Act. Article 52 states that provisions contrary to the Education are repealed.

Penal system

There is no explicit prohibition of corporal punishment as a sentence for crime. It is not explicitly prohibited in the Juvenile Code and there is no provision for judicial corporal punishment in this Code or the Penal Code. However, the Penal Code states that hodod, qassass and diat crimes shall be punished in accordance with Islamic religious law (article 1), which would include corporal punishment.

Corporal punishment is lawful as a disciplinary measure in penal institutions. Severe punishment is prohibited under the Juvenile Code (article 7) but there is no explicit prohibition of corporal punishment. The Law on Prisons and Detention Centers (2005) does not provide for corporal punishment and states that force can be used only if “the detainee or prisoner is escaping, resisting or attacking others or causes disorder which cannot be prevented by any other means but use of force” (article 46), but does not explicitly prohibit corporal punishment.

Alternative care

There is no explicit prohibition of corporal punishment in other institutions and forms of childcare.

Prevalence research

Qualitative research into adults’ perspectives on everyday physical violence against children within the family, published in 2008, involved interviews with more than 200 men and women from 61 families in urban and rural areas in four provinces, plus 56 focus group discussions and 46 interviews with key informants. The study found that violence against children is widely used and recognised, though to a significant degree is not regarded with approval. Physical violence existed to varying degrees within all 61 case study families, most commonly slapping, verbal abuse, punching, kicking, and hitting with thin sticks, electrical cables and shoes. More unusual types of violence included shooting at children, tying them up, washing them in cold water outside during winter and public humiliation. Corporal punishment was used on children as young as 2 or 3 years. No clear difference between punishment of boys and of girls was found, but men were perceived as having more “rights” to be violent towards children than women in the family. (Smith, Deborah J., (2008), Love, Fear and Discipline: Everyday violence toward children in Afghan families, Kabul: Afghanistan Research and Evaluation Unit)

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

Committee on Economic, Social and Cultural Rights

“The Committee, while taking note of the National Strategy for Children at Risk adopted in 2006, remains concerned at the extent of violence against children, including forced and child marriage. It regrets that a high number of children, having a living parent, remain unnecessarily in care institutions. (Article 10)

The Committee recommends that the State party: (a) intensify its efforts to combat violence against children and to prohibit corporal punishment of children in all settings; and (b) adopt and implement social protection programmes to enable the most disadvantaged and marginalized families to meet their basic needs and to care for their children. The Committee requests to the State party to provide further information in its next periodic report, on the system of institutional care for children, regulatory mechanisms, updated number and qualifications of orphanage staff as well as admission policies. The Committee would also appreciate receiving updated information on the results of the implementation of the National Strategy for Children at Risk.”
(21 May 2010, E/C.12/AFG/CO/2-4 Advance Unedited Version, Concluding observations on second to fourth report, para. 28)