Summary of law reform necessary to achieve full prohibition
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Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.
Article 13 of the Law of the Child Act in mainland Tanzania provides for “justifiable” correction; article 14 of the Children’s Act in Zanzibar confirms that parents may discipline their children providing it does not lead to injury. These provisions should be repealed/amended to ensure that no law can be construed as authorising corporal punishment in childrearing.
All laws authorising corporal punishment in schools in mainland Tanzania and in Zanzibar should be repealed and explicit prohibition enacted in relation to all education settings, public and private. All legal provisions authorising corporal punishment as a sentence for crime in mainland Tanzania should be repealed, including those in the Corporal Punishment Ordinance, the Minimum Sentences Act, the Sexual Offences (Special Provisions) Act, the Penal Code and the Criminal Procedure Code. Laws allowing corporal punishment in penal institutions should also be repealed, and explicit prohibition enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law.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.
Current legality of corporal punishment
Corporal punishment is lawful in the home in mainland Tanzania and in Zanzibar. Provisions against violence and abuse in the Penal Codes and other laws are not interpreted as prohibiting corporal punishment in childrearing. In mainland Tanzania, the Law of the Child Act (2009) states that parents should protect children from all forms of violence (article 9), includes beatings which cause harm in the definition of child abuse (article 3) and prohibits “torture, or other cruel, inhuman punishment or degrading treatment” (article 13). However, it allows for “justifiable” correction (article 13) and does not exclude all forms of corporal punishment from such correction. In Zanzibar, article 14 of the Children’s Act (2011) states that “no child shall be subjected to violence, torture, or other cruel, inhuman or degrading punishment or treatment or any cultural or traditional practice which dehumanizes or is injurious to his physical and mental wellbeing” but it also states that “parents may discipline their children in such a manner which shall not amount to injury to the child’s physical and mental wellbeing”: this is not interpreted as prohibiting all corporal punishment in childrearing.
The Government rejected recommendations to prohibit all corporal punishment made during the Universal Periodic Review (UPR) in 2011 (12 March 2012, A/HRC/19/4/Add.1, Report of the Working Group: Addendum, paras. 86(37), 86(38) and 86(47)).
Corporal punishment is lawful in schools in mainland Tanzania under the National Corporal Punishment Regulations (1979) pursuant to article 60 of the National Education Act (1978), which authorises the minister to make regulations “to provide for and control the administration of corporal punishment in schools”. The Law of the Child Act does not does not repeal this provision or prohibit corporal punishment in schools. Government guidelines in 2000 reduced the number of strokes from six to four and stated that only the heads of schools are allowed to administer the punishment, with penalties for teachers who flout these regulations. In Zanzibar, the Ministry of Education has adopted a policy against corporal punishment in schools, but it remains lawful under the 1982 Education Act. The Zanzibar Children’s Act does not explicitly prohibit corporal punishment in schools.
In rejecting the recommendations to prohibit corporal punishment made during the UPR in 2011, the Government asserted that “corporal punishment does not apply in the education system” but that caning is administered in schools and is “a legitimate and acceptable form of punishment [not intended to] be violent, abusive or degrading” (12 March 2012, A/HRC/19/4/Add.1, Working Group Report: Addendum, para. 86(47)).
Corporal punishment is prohibited as a sentence for crime in Zanzibar under article 47(2) of the Children’s Act, but it is lawful in mainland Tanzania under a number of laws, including the Corporal Punishment Ordinance (1930), the Minimum Sentences Act (1963), the Sexual Offences (Special Provisions) Act (1998), the Penal Code and the Criminal Procedure Code (1985). The Minimum Sentences Act amends the Corporal Punishment Ordinance (article 12) to allow for administering corporal punishment in instalments. Under article 8 of the Ordinance, juveniles may be given up to 12 strokes (up to 20 for adults) and the punishment may be inflicted in the open courtroom. The Minimum Sentences Act does not apply to females or to juveniles under the age of 16 years (articles 2 and 3). The Law of the Child Act provides for criminal charges against children to be heard by a juvenile court (article 98); it prohibits “torture, or other cruel, inhuman punishment or degrading treatment” (article 13) and does not explicitly provide for corporal punishment as a sentence of the court. However, the Act does not prohibit judicial corporal punishment for child offenders or repeal the above mentioned laws which authorise such sentences.
In rejecting the recommendation to prohibit made during the UPR in 2011, the Government defended corporal punishment as a sentence for crime, stating that “the procedure for the administration of the punishment has strict controls to eliminate any likelihood of arbitrariness and to ensure the protection of the health of the concerned” (12 March 2012, A/HRC/19/4/Add.1, Working Group Report: Addendum, para. 86(47)).
Corporal punishment is prohibited as a disciplinary measure in penal institutions in Zanzibar under article 122(1)(d) of the Children’s Act, but it is lawful in mainland Tanzania where the Law of the Child Act prohibits “torture, or other cruel, inhuman punishment or degrading treatment” (article 13) but does not explicitly prohibit corporal punishment.
In Zanzibar, article 125(2)(e) of the Children’s Act prohibits corporal punishment in residential institutions but there is no prohibition in relation to other forms of care. In mainland Tanzania, the Law of the Child Act does not explicitly prohibit corporal punishment in care settings; it is lawful under the provisions for “justifiable” correction in article 13 (see above).
A report by the Commission for Human Rights and Good Governance based on interviews with 179 children in 65 detention centres found that children were subject to violence, including from prison officers and adult prisoners. (Reported in The Citizen, 29 January 2012)
A study involving over 3,700 13-24 year olds found that 73.5% of females and 71.7% of males had been slapped, pushed, punched, kicked, beaten up or attacked or threatened with a weapon such as a gun or knife by a relative, authority figure (including teachers), or intimate partner during their childhood. Over half (51%) of 13-17 year olds had experienced this in the past year. The report is not explicit about how much of the violence was inflicted in the name of “discipline”; however, 58.4% of females and 57.2% of males experienced physical violence by relatives (the majority by fathers and mothers), and 52.6% of females and 50.8% of males experienced physical violence by teachers. Nearly eight in ten girls (78%) and nearly seven in ten boys (67%) aged 13-17 who had been punched, kicked or whipped by a teacher had experienced this more than five times, and nearly half of 13-17 year olds (46.3% girls; 45.9% boys) who had been punched, kicked or whipped by a relative had experienced this more than five times. Experiencing physical violence in childhood was associated for females with poor to fair general health, feelings of anxiety in the past 30 days, having suicidal thoughts, and having a STI diagnosis or symptoms in the past 12 months; and for males with feelings of depression in the past 30 days. (UNICEF Tanzania, Division of Violence Prevention, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention & Muhimbili University of Health and Allied Sciences (2011), Violence against Children in Tanzania: Findings from a National Survey, 2009, Dar es Salaam: United Republic of Tanzania)
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.156) made upon the consideration of the State party’s initial report (CRC/C/8/Add.14/Rev.1) have been addressed through legislative measures and policies. However, recommendations regarding, inter alia, legislation, coordination, 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.
“While noting various initiatives undertaken by the State party in campaigning against corporal punishment, including the establishment of two non-corporal punishment pilot schools in Zanzibar, the Committee deeply regrets that corporal punishment is still lawful in schools and in the penal system where. The Committee is further concerned that corporal punishment is lawful in the family and alternative-care institutions.
“Taking into account its general comment No. 1 on the aims of education (CRC/GC/2001/1) and general comment No. 8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/GC/2006/8), the Committee urges the State party:
- to explicitly prohibit all forms of corporal punishment in the family, schools, the penal system and other institutional settings and alternative-care systems as a matter of priority;
- to sensitize and educate parents, guardians and professionals working with and for children by carrying out public educational campaigns about the harmful impact of corporal punishment; and
- to promote positive, non-violent forms of discipline as an alternative to corporal punishment.
“The Committee urges the State party ensure the full implementation of juvenile justice standards, in particular articles 37, paragraph (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) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), and in the light of the Committee’s day of general discussion on the administration of juvenile justice. In this regards, the Committee recommends that the State party:...
c) prohibit all forms of corporal punishment for persons under the age of 18 years in penal institutions; ...”
(21 June 2006, CRC/C/TZA/CO/2, Concluding observations on second report, paras. 6, 33, 34 and 70)
“The Committee notes with regret that the law does not prohibit the use of corporal punishment as a sentence for children and youth in the juvenile justice system. Concern is also expressed that this type of punishment continues to be practised in schools, families and care institutions.
“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment within the juvenile justice system, schools and care institutions as well as in families. The Committee encourages the State party to intensify 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 corporal punishment as a sentence within the juvenile justice system….”
(9 July 2001, CRC/C/15/Add.156, Concluding observations on initial report, paras. 38, 39 and 67)
Human Rights Committee
“While noting the pilot studies on best practice, which are carried out in conjunction with the United Nations Children’s Fund in schools in which caning is not applied, the Committee reiterates its concern that corporal punishment is still available as part of judicial sentences and is permitted within the education system, and that it continues to be applied in practice. (arts. 7 and 24).
The State party should take measures towards the abolition of corporal punishment as a lawful sanction. It should also promote non-violent forms of discipline as alternatives to corporal punishment within the educational system and carry out public information campaigns about its harmful impact.”
(6 August 2009, CCPR/C/TZA/CO/4, Concluding observations on fourth report, para. 16)
“The Committee notes with approval the Nyalali Commission’s recommendation to abolish corporal punishment as a judicial sentence; such penalty should also be precluded for offences against prison regulations and children should no longer be subjected to corporal punishment in schools (art.7).”
(18 August 1998, CCPR/C/79/Add.97, Concluding observations on third report, para. 16)
Universal Periodic Review
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Tanzania was examined in the first cycle of the Universal Periodic Review in October 2011 (session 12). The following recommendations were made (A/HRC/19/4, Report of the Working Group, paras. 85(7), 86(37), 86 (38) and 86(47)):
“Pursue efforts in human rights related areas, in particular legal review process, female genital mutilation and corporal punishment (Egypt);
“Strengthen measures aiming to make effective the rights of the Child from an integral perspective and based on the Convention on the Rights of the Child, particularly on issue of eradication of child labour, violence and sexual abuses, corporal punishment and street children conditions (Uruguay);
“Prohibit all violence against children, including corporal punishment (Sweden);
“Continue to promote the right to education, while prohibiting corporal punishment (Djibouti)”
The Government accepted Egypt’s recommendation to pursue its efforts with regard to corporal punishment (A/HRC/19/4, Report of the Working Group, para. 85(7)) but rejected recommendations to prohibit corporal punishment, stating (A/HRC/19/4/Add.1, Working Group Report: Addendum, paras. 86(37), 86(38) and 86(47)): “Corporal punishment does not apply in the education system. It is provided for by law, as part of our penal system and is administered under the Corporal Punishment Act and Regulations made under the Act, as well as the Prisons Act for persons who have been convicted of certain offences. This punishment is not applicable to females, and males who are over fifty five years. The procedure for the administration of the punishment has strict controls to eliminate any likelihood of arbitrariness and to ensure the protection of the health of the concerned. As a result of these procedures and controls, the sentence has not been administered for more than one decade. This punishment has already been abolished for Tanzania Zanzibar and preference is given to community services. Moreover, canning (and not corporal punishment) is administered to pupils and students for acts of gross indiscipline. The Education Act and its Regulations prescribe a strict framework within which it is to be administered in schools. Therefore caning of miscreant students in schools is viewed as a legitimate and acceptable form of punishment in Tanzania. It was not the intention of the law makers that it should be violent, abusive and or degrading as recommended or envisaged.”
Examination in the second cycle is scheduled for 2016.
This analysis has been compiled from information from governmental and non-governmental sources, including reports on implementation of the Convention on the Rights of the Child. Every effort is made to maintain its accuracy. Please send us updating information and details of sources for missing information: email@example.com.
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