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.

The Juveniles Act recognises “the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer lawful punishment to him” (article 46). The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. Article 46 of the Juveniles Act should be repealed, and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home, schools and all other settings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.

The Education Amendment Act repealed the provision in the Education Act allowing the Minister to make regulations on corporal punishment, but in the absence of explicit prohibition this is undermined by the confirmation in article 46 of the Juveniles Act of the right of teachers to “administer lawful punishment”. Explicit prohibition should be enacted in legislation relating to all education settings (public and private), in addition to repeal of article 46 of the Juveniles Act. Corporal punishment as a sentence for crime and as a disciplinary measure is unlawful, but as at May 2008 provisions in the Juveniles Act allowing judicial and “disciplinary” corporal punishment had not been repealed. These provisions should be repealed and explicit prohibition enacted in legislation relating to all institutions accommodating children in conflict with the law. Explicit prohibition should also 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

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 but 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.” Provisions against violence and abuse in the Penal Code (1931) and the Constitution (1996) do not include prohibition of corporal punishment in childrearing.

As at May 2008, a comprehensive review of laws relating to children was under way, with a view to bringing them into line with the UN Convention on the Rights of the Child. The draft Constitution states in article 48 that every person has the right “to be free from all forms of violence from either public or private sources” and “not to be subjected to corporal punishment or to be treated in a cruel, inhuman or degrading manner”, but the specific prohibition of corporal punishment of children in article 42 applies only to institutions.

Schools

Corporal punishment is considered unlawful in schools since the provision in 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), but there is no explicit prohibition of corporal punishment and article 46 of the Juveniles Act (see above) applies. As at May 2008, the Ministry of Education planned to review the Education Act. The draft Constitution states in article 42(5): “Every child has a right ... (g) to be free from corporal punishment or any other forms of violence or cruel and inhumane treatment in schools and other institutions responsible for the care of children.”

Penal system

Corporal punishment is unlawful as a sentence for crime. The Penal Code provisions for judicial corporal punishment were amended by the Penal Code Amendment Act (2003), following a 1999 Supreme Court ruling that they were unconstitutional (John Banda v The People HPA/6/1998). Other laws have also been amended to reflect the prohibition, by the Supreme Court (Amendment) Act (2003), the Local Courts (Amendment) Act (2003), and the Criminal Procedure Code (Amendment) Act (2003). However, as at May 2008, 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). The Reformatory School Rules (1965), pursuant to article 107 of the Juveniles Act providing for the caning of detainees, have also been repealed, and the draft Constitution would prohibit corporal punishment in institutions (see above). However, approved schools and reformatories are covered by the Juveniles Act which, as at May 2008, was yet to be amended in respect of corporal punishment.

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. 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 May 2008 this had not yet been confirmed in law. The draft Constitution would prohibit corporal punishment in alternative care settings, though it is unclear whether or not the prohibition would apply to foster care, adoption and other family-based care.

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)

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 that 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 practised and accepted as a means of upbringing (art. 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.”
(26 May 2008, CAT/C/ZMB/CO/2, Concluding observations on second report, paras. 3 and 21)

“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)

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. (articles 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)