Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. Article 46 of the Juveniles Act (1956, amended 1994) covers cruelty to juveniles under 19 years of age, and punishes “any person who has attained the age of sixteen years and has the custody, charge or care of any juvenile” who “wilfully assaults, ill-treats, neglects, abandons or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to loss of sight, or hearing, or limb, or organ of the body, and any mental suffering)…”. But it also states: “Nothing in this section shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer lawful punishment to him.”

Children have limited protection from violence and abuse under the provisions on assault in the Penal Code (1931). Article 235 of the Penal Code protects children from “excessive” force. Article 24 of the Constitution (1996) states that all young persons under the age of 15 years “shall be protected against physical or mental ill-treatment, all forms of neglect, cruelty or exploitation”. As at August 2004, the Juvenile Act and the Penal Code were under review.

In November 2006, the Solicitor-General called for an end to all corporal punishment, including in the home (reported in All Africa Global Media, 21 November 2006).

Schools

Corporal punishment is unlawful in schools. Article 12 of the Education Act allowing the Minister to make regulations regulating the administration of corporal punishment in government and aided schools and hostels was repealed by the Education Amendment Act (2003), though there is no explicit prohibition of corporal punishment.

Penal system

Under a ruling by the Supreme Court in 1999 (John Banda v The People HPA/6/1998), articles 24(c) and 27 of the Penal Code, which allow for corporal punishment as a sentence for crime, were judged to be a violation of article 15 of the Constitution which states that “no person shall be subjected to torture, or to inhuman or degrading punishment or other like treatment”. Provisions in the Penal Code providing for corporal punishment as a sentence of the courts were amended by the Penal Code Amendment Act (2003), including article 24(c) which allowed corporal punishment as a sentence, article 27 which specified how it should be carried out, and article 36(c) which allowed the imposition of corporal punishment in addition to any other punishment. The Local Court Act has also been repealed to reflect the prohibition. However, as at May 2007, the provision in article 73 (1) (e) of the Juveniles Act, which allows a court to order that the offender be caned, was yet to be repealed.

Provisions in the Prisons Act (1966) allowing and regulating the use of corporal punishment as a disciplinary measure in penal institutions were repealed by the Prisons Amendment Act (2004). These included parts of article 33 which allowed a prison official or any other person to be liable to corporal punishment for mutiny or sedition among prison officers or prisoners, article 98(h) which allowed corporal punishment on a prisoner guilty of a prison offence, and articles 99-105 which specified how corporal punishment should be given. Approved schools and reformatories are covered by the Juveniles Act which, as at May 2007, was yet to be amended in respect of provisions for corporal punishment. The Reformatory School Rules (1965), pursuant to article 107 of the Juveniles Act providing for the caning of detainees, have been repealed.

Alternative care

Corporal punishment is lawful in alternative care settings, where article 46 of the Juveniles Act (see above) applies and rules made under the Act provide for corporal punishment in childcare facilities. The Act covers provision for juveniles in need of care, including foster care and voluntary homes. A Handbook published by the Ministry of Community Development and Social Services Department of Social Welfare states that disciplining children should not include corporal punishment, but as at June 2005 this had not yet been confirmed in law.

Workplace

There is no explicit prohibition of corporal punishment of children in situations of employment.

Prevalence research

A large scale survey conducted by Save the Children in 2005, involving 2,321 children aged 6-18 years from all nine of Zambia’s provinces, looked at children’s experiences of corporal punishment over a two week period. The findings were also informed by in depth qualitative research with 384 children from four provinces. The research found that 24% of children reported experiencing corporal punishment in the home during the period, including being beaten with hands, sticks and belts. Despite the prohibition of corporal punishment at school, 32% reported being hit with a hand during the period and 38% with an object, most commonly a stick or hosepipe. Other punishments included hard physical labour and excessive physical exercise. Humiliating punishment was reported as being experienced in the home by 43% of children and in school by 37%. Corporal punishment was more common in low income than high income environments and more common for younger (6-12 years) than older (13-18 years) children. It was most often inflicted by mothers in the home and by teachers in schools. It was also administered by prefects in boarding schools. Almost three in four children (70%) felt corporal punishment was unacceptable in the home and in school; 79% felt that humiliating punishment was unacceptable. (Clacherty, G., Donald, D. & Clacherty, A., 2005, Zambian Children’s Experiences of Corporal Punishment, Pretoria: Save the Children Sweden)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes that the Constitutional Court outlawed the practice of corporal punishment (John Banda v. the People, HPA/6/1998) but remains concerned that corporal punishment is still practised and accepted in schools, families, and care and juvenile detention institutions.

“The Committee recommends that the State party take legislative measures to prohibit all forms of physical and mental violence, including corporal punishment, in schools and care institutions, as well as in families. 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 is deeply concerned about allegations of instances of ill-treatment by law enforcement officers against street children and children in custody in police stations and other detention centres, despite the circular of 27 December 1999 ordering prison authorities to stop the practice of caning.

“The Committee recommends that the State party:

1. set up child-sensitive mechanisms to receive complaints against law enforcement officers regarding ill-treatment during arrest, questioning and police custody, and make sure that perpetrators are brought to justice;
2. systematically train the police force and prison staff and other authorities on the human rights of children; and
3. ensure the physical and psychological recovery and social reintegration of child victims of such ill-treatment.”

(2 July 2003, CRC/C/15/Add.206, Concluding observations on initial report, paras. 30, 31, 32 and 33 (a, b and c))

Committee Against Torture

“The Committee welcomes the following positive developments:

d) The abolition of corporal punishment through the enactment of the Criminal Procedure Code (Amendment) Act No. 9 of 2003, the Penal Code (Amendment) Act No. 10 of 2003, the Education Act (Amendment) Act No. 11 of 2003, and the Prisons (Amendment) Act No. 16 of 2004....

“While noting the State party’s legislation prohibits corporal punishment in schools, the Committee remains concerned about the absence of legislation prohibiting such punishment in the family and in institutions other than schools and that corporal punishment is de facto widely practiced and accepted as a means of upbringing (article 16).

The State party should extend legislation prohibiting corporal punishment to the family and to institutions other than schools, ensure that legislation prohibiting corporal punishment is strictly enforced and undertake awareness-raising and educational campaigns to that effect.”
(15 May 2008, CAT/C/ZMB/CO/2 Advance Unedited Version, Concluding observations on second report, paras. 3 and 23)

“The Committee notes, with satisfaction, the following elements,

e) the legal prohibition of corporal punishment.”
(23 November 2001, CAT/C/XXVII/Concl.4, Concluding observations on initial report, para. 3 (e))

Human Rights Committee

“The Committee welcomes the abolition of corporal punishment by amendments to the Penal Code, the Criminal Procedure Code, the Prisons Act and the Education Act.”

“The Committee remains concerned at information according to which the legal recognition of the rights of parents and teachers to administer punishment on children brings confusion and jeopardizes their full protection against ill-treatment. It is further concerned that corporal punishment is still widely practised on children. (arts 7 and 24)

The State party should prohibit all forms of violence against children wherever it occurs, including corporal punishment in the schools, and undertake public information efforts with respect to appropriate protection of children from violence.”
(9 August 2007, CCPR/C/ZMB/CO/3/, Concluding observations on third report, paras. 6 and 22)