Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. Article 23 of the Children and Young Persons Act allowed persons having care or control of a child to administer reasonable punishment. This Act has been replaced by the Children Act (2001, in force 2002), article 13(1) of which states that children are entitled to protection from “physical and psychological abuse, neglect and any other form of exploitation”. Part III of the new Act regulates parental responsibility – it makes no mention of “reasonable chastisement” but does not explicitly prohibit corporal punishment by parents and it is presumed that reasonable chastisement is acceptable. Children are protected from “excessive” use of force by article 241 of the Penal Code and from grievous bodily harm by article 234. As at April 2007, the Domestic Violence (Family Protection) Bill 2002 was due to be introduced to Parliament.

The Draft Constitution (2004) states in article 45 (Freedom and security of the person) of Chapter VI (the Bill of Rights): “Every person has the right to freedom and security of the person, which includes the right: (c) to be free from all forms of violence from either public or private sources; (e) not to be subjected to corporal punishment or to be treated or punished in a cruel, inhuman or degrading manner.” As at March 2007, this Constitution had not been formally adopted.

A 2004 judgment by the Kenyan High Court is regarded as a landmark (Isaac Mwangi Wachira v Republic High Court of Kenya (Nakuru) Criminal Application No. 185 of 2004). The case concerned a man convicted of subjecting his 3-year-old daughter to torture under the Children’s Act. Although the High Court did not condemn all corporal punishment of children, it rejected the appellant’s argument that he was a parent disciplining his child as a mitigating factor, affirmed the right of children under the new Act to be protected from torture and cruel, inhuman and degrading treatment and asserted that a parent’s behaviour under the guise of discipline can constitute such treatment (traditionally seen to be committed by the State and not private individuals). It also confirmed the power of the courts to examine the status of corporal punishment in the home.

As at July 2006, the Government announced it was set to review the Children Act 2001 to strengthen children’s protection from violence.

Schools

Corporal punishment was prohibited in schools by the Children Act in 2001, when the provisions in the Education Act (1968) permitting corporal punishment as regulated by the Education (School Discipline) Regulations (1972), were repealed by Ministry of Education legal notice No. 56. Guidelines on alternative forms of punishment were launched in March 2005. But corporal punishment continues to be used in schools.

The Draft Constitution states in article 40 (Children): “Every child has a right to: (g) be free of corporal punishment or other forms of violence or cruel or inhumane treatment in schools and other institutions responsible for the care of children.”

Penal system

Corporal punishment is unlawful as a sentence for crime under the Children Act, part XIII of which deals with child offenders and explicitly prohibits corporal punishment for persons below the age of 18 years (article 191). Provisions in the Penal Code which allowed for the corporal punishment of male young offenders were repealed under the Criminal Law (Amendment) Act (2003). Section 18(1) of the Children Act states: “No child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.” Section 20 states: “Notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights [under the Act] such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.”

Corporal punishment is unlawful as a disciplinary measure in juvenile detention centres under the Children Act. Legislation which allows for “disciplinary” corporal punishment of young offenders (article 55 of the Prisons Act, rule 77 of the Prisons Rules, articles 33 and 36 of the Borstal Institutions Act, and rules 53 of the Borstal Institutions Rules) no longer applies, though as at March 2007 had yet to be repealed. As at May 2006, proposed amendments to the Prison Act seeking to eliminate corporal punishment from the prison and penal system were under discussion.

Article 75 (Rights of persons held in custody) of the Draft Constitution states that a person in custody, whether or not sentenced, has the right “[(2)(a)] to be treated in a way that respects human dignity…” and: “(3) The State shall ensure that the Kenya Correctional Service, so far as it relates to convicted prisoners, observes the minimum standards laid down under relevant international law and international standards.”

Alternative care

Corporal punishment is prohibited in institutions under the Children Act. Regulation 6 of the Children’s Department internal rules and regulations for the administration of children’s institutions, which allows corporal punishment, has been repealed. Articles 41 and 45 of the Draft Constitution (see above) would also apply.

Workplace

No information.

Prevalence research

A survey of 500 young women in Kenya aged 18-24 concerning their childhood experiences of violence, undertaken by the Africa Child Policy Forum and published in 2006, found that 99% reported experiencing physical violence. Beating with an object was found to be the most prevalent form of physical violence (80.8%), though the research does not investigate the degree to which this and other physical violence was explicitly in the name of “discipline”. Prevalence figures for other forms of physical violence were 59.5% for punching, 39.6% kicking, 43.8% hard work, 20.5% being choked/burned/stabbed, 12.3% having spicy/bitter substances put in mouth, 14.3% being locked or tied up, and 35% being denied food. Girls were found to be most vulnerable when aged 10-13 years. Experiencing the violence more than ten times was more likely in the case of beating than other types of physical violence. Most beating with an object was carried out by mothers (23.5%), followed by female teachers (15.3%) and fathers (13.3%). Most hitting/punching was carried out by female teachers (16.1%), followed by mothers (14.2%) and male teachers (11.3%), with medical attention necessary in 20% of cases. In 52.3% of cases, the hitting/punching resulted in “bruises or scratches, broken bones or teeth, or bleeding”; the figure for beating with an object was 64.6%. (Stavropoulos, J., 2006, Violence Against Girls in Africa: A Retrospective Survey in Ethiopia, Kenya and Uganda, Addis Ababa, The African Child Policy Forum)

A 2004 survey by Population Communication Africa reported that over 60% of children believed that they had been or were being physically abused at school, including being slapped in the face, being hit on the body with a cane or stick, and being beaten, kicked or punched or otherwise physically bullied. (Johnston, T., 2004, Gender Series: The Abuse of Nairobi School Children, Population Communication Africa: Nairobi. Cited in O’Sullivan, M., 2005, “Corporal Punishment in Kenya”, Juvenile Justice Quarterly, vol.2, no.1)

A survey of 267 adults and children and interviews with parents, teachers and children, reported in 2005, found that the most frequent forms of physical discipline used on children were smacking (78.8%), pulling ears (68.8%) and cuffing (61.5%). Other corporal punishments included forcing a child to kneel on a hard floor (45.9%), tapping (43.3%), forcing a child to stand in the sun (33.2%) and burning fingers (19.7%). Almost two thirds of children (62.2%) said they wanted the use of corporal punishment to be stopped. Over half of parents (54%) said that physical punishment should not be stopped. (ANPPCAN Kenya Chapter, 2005, From Physical Punishment to Positive Discipline: Alternatives to Physical/Corporal Punishment in Kenya, second draft)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with satisfaction that some concerns and recommendations (CRC/C/15/Add.160, 7 November 2001) made upon the consideration of the State party’s initial report (CRC/C/3/Add.62/) have been addressed through legislative measures and policies. However, recommendations regarding, inter alia, coordination, the various inconsistent, discriminatory and often exceedingly low legal minimum ages, corporal punishment, child labour and juvenile justice, have not been given sufficient follow-up. The Committee notes that those concerns and recommendations are reiterated in the present document.

“The Committee urges the State party, taking into account General Comment No. 5 (CRC/GC/2003/5) on the general measures of implementation for the Convention on the Rights of the Child, to make every effort to address the recommendations contained in its concluding observations on the initial report that have not yet been implemented, and to address the list of concerns contained in the present concluding observations on the second periodic report.

“The Committee welcomes the legislative prohibition of corporal punishment in schools and institutions under the Children Act of 2001 but continues to be concerned about corporal punishment in the context of the home, the penal system, alternative care settings as well as employment settings. The Committee is also concerned by the continued use of corporal punishment in practice by certain schools and the lack of measures to enforce the prohibition of this practice.

“The Committee urges the State party, taking into account General Comment No. 8 (CRC/C/GC/8) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, to; (a) introduce legislation explicitly prohibiting corporal punishment in the home and in all public and private alternative care and employment settings;

b) conduct public education and awareness raising campaigns on children’s rights to protection from all forms of violence and promotion of alternative, participatory, non-violent forms of discipline; and

c) improve the effectiveness of the monitoring system in order to ensure that abuse of power by teachers or other professionals working with and for children does not take place in schools and other institutions.

“With reference to the United Nations Secretary General’s Study on Violence against Children, the Committee recommends the State party to;

1. take all necessary measures for the implementation of the overarching and setting specific recommendations contained in the Report of the Independent expert of the United Nations Study on Violence against Children (A/61/299) while taking into account the outcome and recommendations of the Regional Consultations for Eastern and Southern Africa (held in South Africa 18-20 July 2005)
   
   
2. use these recommendations as a tool for action in partnership with civil society and in particular with the involvement of children to ensure that every child is protected from all forms of physical, sexual and mental violence and to gain momentum for concrete and, where appropriate, time-bound actions to prevent and respond to such violence and abuse.
   
   
3. seek technical assistance from UNICEF, OHCHR and WHO for the above mentioned purposes.”

(2 February 2007, CRC/C/KEN/CO/2 Unedited Version, Concluding observations on second report, paras. 6, 7, 34, 35 and 44)

“While the Committee notes that corporal punishment has been formally banned in schools (April 2001) as a matter of policy, it is deeply concerned that this form of punishment continues to be practised in schools, as well as in the juvenile justice system, in the family and in care institutions, with resulting cases of permanent injury and even death.

“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment, in the juvenile justice system, in schools and care institutions, and in the family. The Committee also recommends that the State party monitor the ban on corporal punishment in schools. 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.

“The Committee recommends that the State party:

e) abolish the use of corporal punishment in the juvenile justice system….”
(7 November 2001, CRC/C/15/Add.160, Concluding observations on initial report, paras. 33, 34 and 64 (e))

Human Rights Committee

“The Committee welcomes the information that Kenya has now prohibited all forms of corporal punishment of children, and notes that implementation of this prohibition should be accompanied by public information and education campaigns.”
(29 April 2005, CCPR/CO/83/KEN, Concluding observations on second report, para. 6)