Summary of law reform necessary to achieve full prohibition

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

We have been unable to establish whether or not a “right” to administer “reasonable punishment” or similar is confirmed in written legislation, but legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that all such punishment is unacceptable and unlawful. Explicit prohibition should be enacted of all forms of corporal punishment, however light, together with repeal of any legal provisions which provide a defence for its use in childrearing.

Explicit prohibition should be enacted of corporal punishment as a disciplinary measure 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. The Constitution (2007) incorporates the Convention on the Rights of the Child into national law but it appears that domestic law has not been amended to prohibit corporal punishment in all settings. In 2007, a new child protection law was adopted, Act No. 2007-023 on the rights and protection of the child. We have been unable to examine the full text of the Act but to our knowledge it does not prohibit all corporal punishment of children. We have yet to establish whether Ordinance 62-038 on the protection of children has been repealed (1962). Provisions against violence and abuse in the Criminal Code (1972) and the Constitution are not interpreted as prohibiting all corporal punishment in childrearing.

Schools

Corporal punishment is unlawful as a sentence for crime. There is no provision for it in the Criminal Code, the Code of Criminal Procedure (1962) and Act No. 62-038 on the protection of children.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. Discipline in prisons is regulated by Decree No. 2006-015 on the general organisation of the prison service. There is no provision for corporal punishment as a disciplinary measure but persons over 16 may be placed in isolation as a disciplinary measure (articles 135 to 138). As at October 2011, a Bill on the protection of children in conflict with the law was under discussion but we have no details of its proposed provisions.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for it in the Criminal Code, the Code of Criminal Procedure (1962) and Ordinance Order 62-038 on the protection of children.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. Discipline in prisons is regulated by Decree No. 2006-015 on the general organisation of the prison service. There is no provision for corporal punishment as a disciplinary measure but persons over 16 may be placed in isolation as a disciplinary measure (articles 135 to 138).

Alternative care

Corporal punishment is lawful in alternative care settings.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While noting that child abuse is prohibited under the Criminal Code as amended by Act No. 98-024 of 25 January 1999, the Committee is concerned at the incidence of abuse, including sexual abuse, violence against and neglect of children in the State party; that corporal punishment is not prohibited under law; and that insufficient efforts have been made to protect children….

“The Committee recommends that the State party:

b) take all necessary steps to introduce the legal prohibition of corporal punishment in schools and other institutions and at home, and train teachers in the use of alternative measures of discipline….”

(27 October 2003, CRC/C/15/Add.218, Concluding observations on second report, paras. 45 and 46)

Committee Against Torture

« Le Comité est préoccupé par les informations relatives au nombre élevé des mariages précoces ou forcés et des cas de maltraitance et de violence domestique. Il est également préoccupé par l’absence de plaintes due à la pression sociale et familiale en dépit de la loi n° 2000-21 qui érige la violence familiale et les sévices sexuels en infractions pénales (art. 2, 12, 13 et 16)….

Le Comité encourage l’État partie à adopter une loi pour prévenir et punir le viol conjugal et à interdire les châtiments corporels à l’encontre des enfants. Il invite l’État partie à inclure dans les formations des agents d’application de la loi, la détection de violence envers les  femmes et les enfants. »
([November 2011], Advance Unedited Version, Concluding observations on initial report, para. 13; as at 10 January 2012 available only in French)

Universal Periodic Review

Madagascar was examined in the first cycle of the Universal Periodic Review in 2010. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2014.