Summary of law reform necessary to achieve full prohibition

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

We have been unable to establish whether or not legislation explicitly confirms a “right”  of parents to punish their children, but legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal social acceptance of corporal punishment in disciplining/correcting children necessitates clarity in law that no degree or kind of such punishment is acceptable or lawful. Explicit prohibition should be enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have authority over children.

Explicit prohibition should be enacted in legislation and applicable to all education settings (public and private), as well as repeal of any laws specifically authorising or regulating corporal punishment in schools. Explicit prohibition should also be enacted in legislation relating to disciplinary measures 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. Provisions against violence and abuse in the Penal Code (2009) and the Code of Personal and Family Affairs are not interpreted as prohibiting corporal punishment in childrearing. The Convention on the Rights of the Child has been incorporated into national legislation through article 19 of the Constitution (2005), which states: “The rights and duties proclaimed and guaranteed, inter alia, by the Universal Declaration of Human Rights, the International Covenants on human rights and the rights of peoples, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child shall form an integral part of the Constitution of the Republic of Burundi. These fundamental rights may not be the subject of any restriction or derogation, except in certain circumstances justifiable by the general interest of the protection of a fundamental right.” Article 44 of the Constitution provides for protection for children from “ill-treatment, abuse or exploitation”. However, there is no explicit prohibition of corporal punishment in domestic legislation.

In 2010, a number of bills were under consideration, including a bill on the protection of children in difficulty, a bill on delinquent children and a bill to amend the Code of Personal and Family Affairs. As at January 2012, these bills appear not to have been enacted.

Schools

Corporal punishment is reportedly prohibited in schools in regulations (1 September 2010, CRC/C/BDI/Q/2/Add.1, Written replies to the Committee on the Rights of the Child). We have yet to verify this information.

Penal system

Corporal punishment is unlawful as a sentence for crime under the Criminal Code (2009), the Code of Criminal Procedure (1999) and the Constitution (2004).

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions.

Alternative care

There is no prohibition of corporal punishment in alternative care settings.

Prevalence research

Interviews with children in conflict with the law and with parents and law enforcement officials, carried out by Human Rights Watch in 2006-2007, found that many children have been beaten and have suffered other ill treatment while in detention. (Human Rights Watch, 2007, Paying the price: Violations of the rights of children in detention in Burundi)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with interest that the new Penal Code of 2009 has increased penalties for cruel, inhuman and degrading treatment against children. However, the Committee is concerned that corporal punishment continues to be practiced in some schools and that domestic legislation does not explicitly prohibit corporal punishment in the home, schools, and alternative care settings and as a disciplinary measure in penal institutions.

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

1. undertake a review of current legislation to explicitly prohibit the use of corporal punishment in all areas,  including in the home, schools, in alternative care settings and  in the penal system;
2. introduce public education, awareness-raising and social mobilization campaigns in cooperation with the media, 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;
3. conduct a comprehensive study to assess the causes, nature and extent of corporal punishment and
4. take into account its general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia).”

(1 October 2010, Advance Unedited Version, Concluding observations on second report, paras. 39 and 40)

“The Committee is concerned that corporal punishment continues to be practised at home and in some schools and that domestic legislation does not prohibit its use.

“The Committee recommends that the State party take all appropriate measures, including legislation, information campaigns and the promotion of alternative forms of sanctions which respect the physical and mental integrity of children, to end corporal punishment within the family, schools, juvenile justice and alternative care.”
(16 October 2000, CRC/C/15/Add.133, Concluding observations on initial report, paras. 40 and 41)

Universal Periodic Review

Burundi was examined in the first cycle of the Universal Periodic Review in 2008. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2013.