Summary of law reform necessary to achieve full prohibition

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

Parents have a recognised right to use “moderate chastisement” on their children, and section 29(2) of the Constitution states that “a child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction”. All provisions recognising the right to administer “moderate chastisement” should be repealed and the law should explicitly prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home, schools and all other settings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.

Provisions for corporal punishment in the Education Rules should be repealed and explicit prohibition enacted in legislation relating to all education settings (public and private), in addition to repeal of “moderate chastisement” provisions. Articles 196 and 306-308 of the Criminal Procedure and Evidence Act and section 12 of the Courts Act, allowing judicial corporal punishment, should be repealed, together with provisions in the Prisons Act and possibly the Reformatories Act authorising corporal punishment in penal institutions. Explicit prohibition should be enacted in relation to penal and all alternative care settings, including public and private day care, residential institutions, foster care, etc, in addition to repeal of “moderate chastisement” provisions.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home, where parents have a right to use “moderate chastisement”. Section 29(2) of the Constitution (2005, in force 2006) states that “a child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction”. In 2008, a Child Bill had been drafted by the Attorney-General’s office, and recommendations had been made to include prohibition of all corporal punishment, but we have no further details.

Schools

Corporal punishment is lawful and regulated under the Education Act (1982) read together with the Education Rules (1977) and “A Guide to Schools Regulations and Procedures” (1988), produced by the Swaziland Ministry of Education. Sections 10 and 11 of the Education Rules state that corporal punishment may be administered to boys and girls considered physically fit enough to receive such punishment, in private, using a cane of specified dimensions, on the buttocks only, and recorded in a punishment book. Children under 16 years of age may receive up to four strokes, older children up to six strokes. Recommendations were made to include prohibition in the Child Bill being drafted in 2008.

Penal system

Corporal punishment is lawful as a sentence for crime for male offenders under the age of 18 years under articles 196 and 306-308 of the Criminal Procedure and Evidence Act (1938, amended 2005). According to article 84 of the Magistrates Court Act, magistrates cannot implement whipping until the High Court has reviewed the sentence. A High Court decision placed a moratorium on whipping as a sentence and the courts are no longer applying it but it remains on the statute books, and has continued to be ordered. Under section 12 of the Courts Act (1950), the court may impose any punishment, in addition to fine and imprisonment, recognised by Swazi law and custom, provided it is not repugnant to natural justice and humanity. The courts reportedly order corporal punishment of boys below the age of 18 years and sometimes order truant children be subjected to corporal punishment at the insistence of their parents/carers. Recommendations were made to include prohibition in the Child Bill being drafted in 2008.

Corporal punishment is lawful as a disciplinary measure for males in penal institutions under the Prisons Act (1964) and possibly the Reformatories Act (1921). Recommendations were made to include prohibition in the Child Bill being drafted in 2008.

Alternative care

Corporal punishment is lawful in alternative care settings. Recommendations were made to include prohibition in the Child Bill being drafted in 2008.

Prevalence research

A large scale survey by Save the Children in 2005 looked at the experiences over a two week period of corporal punishment of 2,366 children aged 6-18 years from all of Swaziland’s four regions. Children revealed being subjected to high levels of corporal punishment in the home and at school: 18% reported being hit with the hand in the home during the period; 28% reported being beaten with objects such as sticks, belts, sjamboks and whips. Boys were punished for such behaviour as breaking or stealing things, not tending livestock properly, playing instead of working, or playing out too late. Young children, particularly girls, were punished in connection with household chores. In school during the two weeks, 28% of children reported being hit with a hand, and 59% reported being beaten with an object, most often sticks, canes, sjamboks and blackboard dusters. Other punishments included physical labour or physical (and often humiliating) activities causing pain and discomfort. Children reported experiencing humiliating punishment, 35% in the home, 28% in school, in addition to experiencing corporal punishment itself as humiliating. Generally, corporal punishment was more commonly used in low income environments and on younger children. 77% of children considered corporal punishment to be unacceptable in the home and in school; 81% felt humiliating punishment to be unacceptable. The study also involved qualitative research with 384 children from the regions. (Clacherty, G., Donald, D. & Clacherty, A. (2005), Children’s Experiences of Corporal Punishment in Swaziland, Pretoria: Save the Children Sweden)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is deeply concerned that corporal punishment is legal and traditionally accepted and widely practised in the family, in schools and in other settings. The Committee is further concerned that the new Constitution allows the use of ‘moderate chastisement’ of children.

“The Committee recommends that the State party consider, as a matter of priority, amending the Constitution and explicitly prohibiting by law corporal punishment in all settings, including in the family, schools, the penal system and all alternative care settings. It also recommends that the State party conduct awareness-raising and educational campaigns to ensure that alternative forms of discipline are used, in a manner consistent with the child’s human dignity and in conformity with the Convention, especially article 28, paragraph 2, taking into account its 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).

“While welcoming the establishment of a Children’s Court in 2005, the Committee is nevertheless concerned at the lack of a functioning juvenile justice system throughout the country. In particular, the Committee is concerned at: ...

e) the use of corporal punishment as a sanction for juveniles.

“The Committee urges the State party to ensure that juvenile justice standards are fully implemented, in particular articles 37 (b), 40 and 39 of the Convention, as well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (the Havana Rules), and in the light of the Committee’s day of general discussion on the administration of juvenile justice. In particular the Committee recommends that the State party: ...

f) abolish, as a matter of urgency, the use of corporal punishment as a sanction in the juvenile justice system....”
(16 October 2006, CRC/C/SWZ/CO/1, Concluding observations on initial report, paras 36, 37, 67 and 68)