Summary of law reform necessary to achieve full prohibition

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

Article 326(4) of the Family Code (1987) states that “a person exercising parental authority may inflict reprimands and punishments on the child to an extent compatible with its age and the improvement of its conduct”. This provision should be repealed. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that no degree or kind of corporal punishment can be considered reasonable or lawful. Explicit prohibition should be enacted of all forms of corporal punishment, however light.

Explicit prohibition should also be enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law and to all alternative care settings, including public and private day care, residential care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 326(4) of the Family Code (1987) states that “a person exercising parental authority may inflict reprimands and punishments on the child to an extent compatible with its age and the improvement of its conduct”.

Children have limited protection from violence and abuse under the Criminal Code (1940), the Family Code and the Constitution. As at December 2008, a draft Child Protection Code was under discussion.

Schools

Corporal punishment is unlawful in schools under Ministerial decision No. MINEPSP/CABMIN/00100940/90 of 1 September 1990 setting forth internal regulations for students, which does not include corporal punishment among permitted penalties.

Penal system

Corporal punishment was prohibited as a sentence for crime in 1960. It is not among permitted sanctions in the Decree on juvenile delinquency (1950)  and the Criminal Code, and the Congolese Charter of Human Rights prohibits “persons, physical or mental torture and cruel, inhuman or degrading treatment, are prohibited” (article 19).

Corporal punishment is lawful as a disciplinary measure in penal institutions, with the exception of the Antoinette Sassou-Nguessou Re-education Centre where it is prohibited in its regulations. Article 19 of Decree-Law No. 017-2002, which sets out the code of conduct for state officials, states: “A State official must refrain from threats, abuse, intimidation, sexual or psychological harassment or any other form of violence.” Cruel, inhuman or degrading treatment is prohibited by circular No. 04/008/JM/PHR/70 on intervention by judicial police officers (1970) and article 20(5) of the transitional Constitution states: “Every prisoner must be treated in such a manner as to preserve his life, physical and mental health and dignity.” The draft Code of Child Protection will cover juvenile justice but we have no details of its provisions.

Alternative care

Corporal punishment in other institutions and forms of childcare is lawful under the right of those with parental responsibility to punish the child (see above).

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While the Committee welcomes the prohibition of corporal punishment in schools, it remains concerned that it continues to be lawful, and is practiced, in the home as well as in institutions.

“The Committee recommends that the State party explicitly prohibit by law corporal punishment in all settings, including in the family, schools, alternative childcare and places of work and places of detention, and implement those laws effectively. It also recommends that the State party intensify its awareness-raising campaigns in order to promote the use of alternative forms of discipline in a manner consistent with the child’s human dignity and in accordance with the Convention, especially article 28, paragraph 2, taking into account the Committee’s general comment No.8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/C/GC/8, 2006).”
(January 2009, CRC/C/COD/CO/2 Unedited Version, Concluding observations on second report, paras. 39 and 40)

“In the context of article 19 of the Convention the Committee is concerned that the corporal punishment of children is permitted under domestic legislation and continues to be practised in State institutions, including schools and places of detention, and in the family.

“The Committee recommends that the State party take all appropriate measures, including of a legislative nature, to prohibit and eliminate all forms of corporal punishment in schools and in homes. The Committee further suggests that awareness raising and education campaigns be conducted to change public attitudes and ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention, especially articles 19 and 28.2.”
(9 July 2001, CRC/C/15/Add.153, Concluding observations on initial report, paras. 38 and 39)