Summary of law reform necessary to achieve full prohibition

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

Article 59 of the Children’s Act (1960) confirms parents’ “right to punish and to exercise discipline”, and provides for the transfer of this right to others with responsibility for children. This provision should be repealed and the law should explicitly prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home, schools and all other settings where adults have parental authority over children.

All provisions authorising corporal punishment should be repealed and explicit prohibition enacted in legislation relating to all forms of justice and all institutions accommodating children in conflict with the law. Explicit prohibition should be enacted in legislation applicable to all alternative care settings, including public and private day care, residential institutions, foster care, etc, in addition to repeal of the “right to punish and to exercise discipline”.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. The Children’s Act No. 33 (1960), inherited from South Africa, confirms that parents have a “right to punish and to exercise discipline” (article 59(1)). As at August 2010, article 211 of the Child Care and Protection Bill, expected to replace the Children’s Act, would put a duty on parents to respect a child’s right to physical integrity and a duty on the responsible minister to ensure that programmes promoting “appropriate discipline at home and in other contexts where children are cared for” are made available, but it does not explicitly prohibit all corporal punishment in childrearing.

Schools

Corporal punishment is unlawful in schools. A Supreme Court judgment in 1991 ruled that the guarantee of human dignity in article 8 of the Constitution precludes the use of corporal punishment in schools as well as for adult and juvenile offenders (Ex Parte Attorney-General, Namibia: in Re Corporal Punishment by Organs of State, 1991 (3) SA 76). This is confirmed – and extended to hostels and private schools – in article 56(1) of the Education Act (2001) which states: “A teacher or any other person employed at a state school or hostel or private school or hostel commits misconduct, if such teacher or person, in the performance of his or her official duties imposes or administers corporal punishment upon a learner, or causes corporal punishment to be imposed or administered upon a learner.” The Namibian Code of Conduct for Teaching Service states that a teacher “may not administer corporal punishment or any other degrading punishment upon a learner”. The Child Care and Protection Bill would also explicitly prohibit corporal punishment in private and government schools (article 211).

Penal system

Corporal punishment is unlawful as a sentence for crime under the 1991 Supreme Court judgment (see above). The Criminal Procedure Act (2004) does not provide for corporal punishment as a sentence of the courts (articles 307 and 319). However, this Act appears not to have come into force, and the Criminal Procedure Act (1977) which is currently in force contradicts the Supreme Court ruling in authorising whipping as a sentence for male juveniles (articles 276 and 292-295). Article 32 of the Children’s Act also authorises a court to sentence a child to “moderate whipping”. Article 211 of the Child Care and Protection Bill would explicitly prohibit corporal punishment of children as a sentence of the courts, including under common law, customary law and in traditional courts.

Corporal punishment is unlawful as a disciplinary measure in penal institutions under the 1991 Supreme Court judgment. The Prisons Act (1998) does not provide for corporal punishment, though it does not explicitly prohibit it. However, provisions in the Children’s Act for the “right to punish and exercise discipline” in penal institutions (article 59) and authorising the Minister to make regulations concerning the “infliction of corporal punishment” in places of detention, observation centres, schools of industry and reform schools (article 92), are still in force. We have been unable to establish if there are regulations in force which would need to be repealed. Article 211 of the Child Care and Protection Bill would explicitly prohibit corporal punishment.

Alternative care

Corporal punishment is unlawful in forms of childcare provided by the state under the 1991 Supreme Court ruling (see above), but there is no explicit prohibition in legislation; the ruling does not apply to privately administered care settings. Article 59(1) of the Children’s Act states that when a child or pupil is placed in any custody other than that of the parent or guardian, the “right to punish and to exercise discipline” is vested “in the management of the institution to which the pupil was sent”, “in the person in whose custody the child was placed” or “in the case of any pupil to whom a license was granted under section 44 to live in the custody of any person or in any training institution, in such person or in the managers of such training institution”. Article 92 of the Act authorises the Minister to make regulations concerning discipline, including “the infliction of corporal punishment”, in places of safety, observation centres and children’s homes. We have been unable to establish if there are regulations in force which would need to be repealed.

Article 211 of the Child Care and Protection Bill would explicitly prohibit corporal punishment in alternative care settings, stating: “A person may not administer corporal punishment to a child at any residential child care facility, place of care, shelter, early childhood development centre, school, including a private or government school, or to a child in foster care, prison or any other form of alternative care.”

Prevalence research

In a 2008 survey of 1,680 respondents, 78% thought that a parent had a right to hit their child if the child was disobedient, 63% if the child did not want to go to school, 51% if the child ran away from home and 27% if the child performed poorly in school. Almost 61% believed that it was common in their communities for children to be smacked or caned. Respondents from households with children aged 2-14 were asked what forms of discipline had been used in their household. Forty per cent said children had been spanked, hit or slapped on the bottom with a bare hand, 30% said they had been hit with objects and 18% said children had been hit or slapped on the face, head or ears. Other “disciplinary” measures included shaking the child (reported by 29%), hitting the child with an implement (29%) and repeatedly beating the child with an implement (6%). (Social Impact Assessment and Policy Analysis Corporation (SIAPAC) (2008),  Knowledge, Attitudes and Practices Study on Factors and Traditional Practices that may Perpetuate or Protect Namibians from Gender Based Violence and Discrimination: Caprivi, Erongo, Karas, Kavango, Kunene, Ohangwena, Omaheke, and Otjozondjupa Regions (Final Report), Ministry of Gender Equality and Child Welfare, cited in Hubbard, D. et al (2010), Corporal Punishment: National and International Perspectives, Windhoek: Legal Assistance Centre)

According to statistics from UNICEF relating to the period 2001-2007, of girls and women aged 15-49, 35% think that a husband is justified in hitting or beating his wife under certain circumstances. (UNICEF (2009), Progress for Children: A report card on child protection, NY: UNICEF)

Recommendations by human rights treaty bodies

Committee against Torture

“The Committee recommends the prompt abolition of corporal punishment insofar as it is legally still possible under the Prisons Act of 1959 and the Criminal Procedure Act of 1977.”
(6 May 1997, A/52/44, paras. 227-252, Concluding observations on initial report, para. 250)

Universal Periodic Review

Namibia was examined in the first cycle of the Universal Periodic Review process in 2011. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2016.