Summary of law reform necessary to achieve full prohibition

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

We have been unable to establish whether or not legislation confirms a right of parents and others with parental authority to administer physical punishment, but legal provisions against violence are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment in “disciplining” children necessitates a clear statement in law that all corporal punishment, however “light”, is prohibited.

Explicit prohibition of corporal punishment should be enacted in relation to all institutions accommodating children in conflict with the law and 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. Provisions against violence and abuse in Act No.19/61 on juvenile offenders and children at risk, the Penal Code, the Code on the Individual and the Family (Law No. 43/96/ADP, 1996) and the Code of Criminal Procedure are not interpreted as prohibiting corporal punishment in childrearing.

Schools

Corporal punishment is prohibited in schools under articles 23 and 38 of Decree No. 289 bis/PRES/AN (1965) on the re-organisation of first-degree education.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for judicial corporal punishment in Act 19/61 on juvenile offenders and children at risk or the Penal Code. Article 2 of the Constitution (1991) prohibits inhuman, cruel, degrading and humiliating treatment, and physical or mental torture.

Corporal punishment is considered unlawful as a disciplinary measure in penal institutions under article 44 of the “Kiti AN VI 103 du 1er décembre 1988 portant organisation, régime et réglementation des établissements pénitentiaires au Burkina Faso”, which forbids all employees and persons having access to places of detention using violence against detainees, but we have yet to establish whether or not corporal punishment is explicitly prohibited.

Alternative care

Other institutions accommodating or educating children are bound by the prohibition of corporal punishment in Decree No. 289 bis/PRES/AN (see above). There is no explicit prohibition of corporal punishment in fostering and adoption.

Prevalence research

According to a statistical review by UNICEF, 56% of children aged 2-14 experienced minor physical punishment in the home in 2005-2006, although a smaller percentage of mothers/caretakers (37%) believed that children need to be physically punished. The same review reported that 71% of girls and women aged 15-49 believed that a husband or partner is justified in hitting or beating his wife under certain circumstances. (UNICEF (2007), Progress for Children: A World Fit for Children – Statistical Review, Number 6, December 2007)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee, while welcoming the circular sent by the Education Ministry to the schools stressing the adverse consequences of corporal punishment as well as the creation of a National Council against Violence in Education areas, notes with great concern that children are commonly beaten, whipped, insulted and humiliated by their teachers. The Committee also notes with concern that in spite of existing laws, corporal punishment continue to be widely practiced in alternate care settings, in situations of employment and in the homes where they remain lawful.

“The Committee urges the State party to take all the necessary measures to eradicate corporal punishment, and in particular:

1. explicitly prohibit corporal punishment by law in the family and all childrearing and ensure that those laws are and effectively implemented and that legal proceedings are systematically initiated against those responsible of mistreating children;
2. conduct a comprehensive study to assess the causes, nature and extent of corporal punishment;
3. introduce public education, awareness-raising and social mobilization campaigns on the harmful effects of corporal punishment with a view to changing the general attitude towards this practice and promote positive, non-violent, participatory forms of child-rearing and education;
4. ensure that an educational programmes be undertaken against corporal punishment, insisting both on the child rights and psychological aspects; and
5. take into General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and recommends.”

(29 January 2010, CRC/C/BFA/CO/3-4 Advance Unedited Version, Concluding observations on third/fourth report, paras. 40 and 41)

“While noting that child abuse is prohibited under the Penal Code, the Committee is concerned at the incidence of abuse, including sexual abuse, and neglect of children in the State party, and that insufficient efforts have been made to protect children….

“The Committee recommends that the State party:

1. undertake a study on violence, including sexual violence, against children within the family, at schools and in other institutions in order to assess the scope, nature and causes of this practice with a view to adopting and implementing a comprehensive plan of action and effective measures and policies, in conformity with article 19 of the Convention, and to changing attitudes;
2. take all necessary steps to introduce the legal prohibition of the use of corporal punishment in schools and other institutions and at home….

“The Committee recommends that the State party:

k) implement the ban on corporal punishment in schools and train teachers in the use of alternative measures of discipline…”

(9 October 2002, CRC/C/15/Add.193, Concluding observations on second report, paras. 36, 37 and 51)