Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. Under common law, which is part of the laws in Gambia under the Laws of England (Application) Act, Cap. 5, parents, guardians and others in loco parentis can “reasonably chastise” their child.

In July 2005, parliament passed the Children’s Act which includes the responsibility of parents to “ensure that domestic discipline is administered with humanity and in a manner consistent with the inherent dignity of the child” (article 22). The Act also specifies the duty “of any person having custody of a child to protect the child from discrimination, violence, abuse and neglect” (article 21). Child abuse is defined in the Act as “contravention of the rights of the child which causes physical or mental harm to the child” (article 2). Article 19 states: “No child shall be subjected to any social and cultural practices that affect the welfare, dignity, normal growth and development of the child….” Other protection from abuse and neglect is given by articles 21 and 29 of the Constitution (1997) and the Criminal Code (articles 18-19, 210-211 and 218).

Schools

Corporal punishment is lawful in schools. Article 15 of the Education Regulations of Education Act Cap. 46 of the revised laws of Gambia (1990) states: “Firm discipline shall be maintained and enforced in all schools, but all degrading and injurious punishments are prohibited, and no child shall receive corporal punishment of any form save as is hereinafter in this regulation provided.” Under paragraphs 2-4 of article 15, corporal punishment should be administered only by the head teacher or an assistant teacher in the presence of the head teacher, to female pupils only in exceptional circumstances and then only by a female teacher, and logged in a designated book. The effect of the new Children’s Act (see above) on corporal punishment in schools is yet to be ascertained.

According to the Association of NGOs (TANGO), many children are sent away by their parents for Islamic religious education under the custody of their teachers (Marabouts), but the children (known as Almudus) are often subject to severe abuse and neglect (NGO alternative report to Gambia Government’s initial report on the implementation of the Convention on the Right of the Child (2001)).

In July 2006, Magistrate Pa Harry Jammeh of the Kanifing Magistrates Court stated publicly that school corporal punishment violated human rights (reported in the Daily Observer, 24 July 2006).

Penal system

Corporal punishment is unlawful as a sentence for crime. Section 220(7) of the Children’s Act states: “A court shall not make an order subjecting a child to corporal punishment.” Previously, the Child and Young Persons Act (1969) (sections 13 and 16) allowed the court to order young offenders (but not girls over 13 years) to be whipped up to ten strokes, and children under the age of 7 years considered guilty of an offence could be caned up to ten strokes by a police officer, upon authorisation by a senior officer, without the case being taken to court (section 16). The Child and Young Persons Act has been repealed by the new Children’s Act.

Under the Children’s Act a child, defined as a person under the age of 18 years (article 2), must not be subjected to the criminal justice process or sanctions applicable to adults, but must be dealt with under the provisions in the Children’s Act. Under the Act, when a child is arrested, “contacts between the police and the child shall be managed in such a way as to … (iii) avoid harm to the child”, where harm “includes the use of harsh language, physical violence, exposure to the environment and any consequential physical, psychological or emotional injury or hurt” (article 210).

There is no explicit prohibition of corporal punishment as a disciplinary measure in juvenile detention institutions. The Children’s Act states (article 212): “(3) While in detention, a child shall be given care, protection and all necessary individual assistance, including social, educational, vocational, psychological, medical and physical assistance, that he or she may require having regard to his or her age, sex and personality.”

Alternative care

We have yet to ascertain the impact of the new Children’s Act (see above) on the legality of corporal punishment in other institutions and forms of childcare. While a child is in a residential care home or with a foster parent, parental responsibility is with the Department for Social Welfare and the parents (articles 90, 127, Children’s Act). When parents are deceased, the parental responsibility to ensure discipline which respects dignity in the Children’s Act (see above) is passed to guardians, relatives, a manager of a care home, a foster parent or a significant other (article 22). Article 12 of the Act states: “(1) Every child who is in need of special protection measures, has the right to any such measure that is appropriate to his or her physical, social, economic, emotional and mental needs and under conditions which ensure his or her dignity….” Article 106 states: “(5) A foster parent is liable for contravention of any of the provisions of Parts II [rights of the child] and III [responsibilities of parents and the child].” Under article 134 of the Act, the Secretary of State may make rules “regulating the management and discipline of the residential care homes”. The provisions against abuse and neglect in the Constitution, the Criminal Code and the Children’s Act apply.

Workplace

No information.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee expresses grave concern that corporal punishment is still practised and accepted in schools, families, and care and juvenile detention institutions, and as a punishment in the penal system.

“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment as a penal sanction within the juvenile justice system, in schools and care institutions, as well as in families. The Committee encourages the State party to reinforce its public awareness campaigns to promote positive, participatory, non-violent forms of discipline as an alternative to corporal punishment at all levels of society.”
(6 November 2001, CRC/C/15/Add.165, Concluding observations on initial report, paras. 32 and 33)