*Namibia is committed to reforming its laws to prohibit corporal punishment in all settings.*
Namibia’s commitment to prohibiting corporal punishment
Namibia expressed its commitment to prohibiting all corporal punishment of children by accepting the recommendations to do so made during the Universal Periodic Review of Namibia in 2016.
Summary of necessary legal reform to achieve full prohibition
Prohibition is still to be achieved in the home, alternative care settings and day care. Corporal punishment is unlawful in penal institutions and as a sentence for crime under a 1991 Supreme Court ruling but prohibition has not yet been confirmed through law reform.
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 This provision should be explicitly repealed and the law should prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home, schools and all other settings where adults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.
Alternative care settings – Prohibition will be achieved in alternative care settings when the Child Care and Protection Act 2014 is brought into force.
Day care – Corporal punishment should be prohibited in all early childhood care (nurseries, crèches, kindergartens, preschools, family centres, etc) and all day care for older children (day centres, after-school childcare, childminding, etc). Prohibition will be achieved in early childhood centres when the Child Care and Protection Act 2014 is brought into force.
Penal institutions – Corporal punishment is unlawful under a 1991 Supreme Court ruling. This will be confirmed in legislation when the Child Care and Protection Act 2014 is brought into force and when all provisions authorising corporal punishment are repealed.
Sentence for crime – Corporal punishment is unlawful following the 1991 Supreme Court ruling but some legislation is still to be repealed, including provisions in the Children’s Act 1960 (which will be repealed when the Child Care and Protection Act 2014 comes into force) and in the Criminal Procedure Act 1977.
Corporal punishment is lawful in the home. In reporting to the UN Committee on Economic, Social and Cultural Rights in 2015, the Government misleadingly asserted that corporal punishment is abolished under the Constitution and the Education Act. The Children’s Act No. 33 1960, inherited from South Africa, 1960 punishes “any parent or guardian of a child or any person having custody of a child who ill-treats, neglects … or abandons that child or allows it to be ill-treated” (art. 18). But protection under this article does not extend to protection from all corporal punishment: the Act also recognises a “right to punish and to exercise discipline” (art. 59).
In reporting to the UPR for the 2016 review, the Government stated that violence against children is considered to be “part of” gender-based violence. The Combating of Domestic Violence Act 2003 includes in its definition of domestic violence “physical abuse, which includes physical assault or any use of physical force against the complainant” and “emotional, verbal or psychological abuse, which means any pattern of conduct which seriously degrades or humiliates the complainant, or a family member or dependent of the complainant, or deprives such person of privacy, liberty, integrity or security” within the context of a domestic relationship (article 2). “Domestic relationship” includes a parent-child relationship (article 3). On the face of it, it may seem that this would protect the child from physical and other humiliating punishment within the home, but the Act is not interpreted in this way and protection for children is undermined by the “right to punish and to exercise discipline” in the Children’s Act 1960 (see above). The National Plan of Action on Gender-Based Violence 2012-2016 includes as a preventive strategy the promotion of “positive discipline techniques such as alternatives to corporal punishment in all spheres” and aims to ensure widespread availability of relevant materials by 2013 (Action 2.5) but it makes no mention of law reform to prohibit corporal punishment in the home.
A Child Care and Protection Act 2015, which will replace the Children’s Act 1960, has been passed by Parliament and was promulgated in May 2015. It is anticipated that regulations under the Act will be prepared in 2015 and that the Act will come into force once these are published. As at June 2016, the Act had still not been brought into operation. The new Act does not prohibit all corporal punishment in childrearing. It states: “A person who has control of a child, including a person who has parental responsibilities and rights in respect of the child, must respect the child’s right to dignity conferred by Article 8 of the Namibian Constitution.” Article 8 of the Constitution states: “(1) The dignity of all persons shall be inviolable. (2)(a) In any judicial proceedings or in other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed. (b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”
In 2015, the Government was asked by the Human Rights Committee about its intentions regarding prohibition of corporal punishment in all settings: the Government did not respond.
Alternative care settings
Corporal punishment is unlawful in forms of alternative care provided by the state under the 1991 Supreme Court ruling (see “Schools”, below), 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 1960 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 that would need to be repealed.
The Child Care and Protection Act 2015, not yet in force, includes explicit prohibition of corporal punishment in alternative care settings: “A person may not administer corporal punishment to a child at any residential child care facility, place of care, shelter, early childhood development centre, a school, whether a state or private school or to a child in foster care, prison, police cell or any other form of alternative care resulting from a court order.”
Corporal punishment is unlawful in forms of early childhood care and day care for older children provided by the state under the 1991 Supreme Court ruling (see “Schools”, below), but there is no explicit prohibition in legislation. The ruling does not apply to privately administered day care.
The Child Care and Protection Act 2015, not yet in force, would prohibit corporal punishment in early childhood centres but not in all forms of day care (see “Alternative care settings”, above).
Corporal punishment is prohibited 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. This is confirmed – and extended to hostels and private schools – in article 56(1) of the Education Act 2001: “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”.
Prohibition is reiterated in the Child Care and Protection Act 2015, not yet in force (see “Alternative care settings”, above).
In 2016, a High Court ruling confirmed that the ban on corporal punishment in the Education Act applies in all Namibian schools, including private schools. Judge Elton Hoff stated that interpreting the laws prohibiting corporal punishment as applying only to teachers employed by the government would be “an absurdity in that children enrolled at state schools would be protected against invasive punishment while those enrolled at private schools would not”.
Corporal punishment is unlawful as a disciplinary measure in penal institutions under the 1991 Supreme Court judgment. The Correctional Service Act 2012 does not provide for corporal punishment, but it does not explicitly prohibit it. However, provisions in the Children’s Act for the “right to punish and exercise discipline” in penal institutions (art. 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 (art. 92), are still in force. We have been unable to establish if there are regulations in force that would need to be repealed. Prohibition is confirmed in the Child Care and Protection Act 2015, not yet in force (see “Alternative care settings”, above).
Sentence for crime
Corporal punishment is unlawful as a sentence for crime under the 1991 Supreme Court judgment. The Criminal Procedure Act 2004 does not provide for corporal punishment as a sentence of the courts (arts. 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 (arts. 276 and 292-295). Article 32 of the Children’s Act 1960 also authorises a court to sentence a child to “moderate whipping” – this will be repealed when the Child Care and Protection Act 2015 comes into force. A Child Justice Bill has been under consideration since 2002 but has not yet been enacted: the Government reported to the Human Rights Council that it is expected to be tabled in Parliament in 2016. The Rules of the High Court of Namibia: High Court Act 1990, brought into force in 2014, make no reference to judicial corporal punishment.
Universal Periodic Review of Namibia’s human rights record
Namibia was examined in the first cycle of the Universal Periodic Review process in 2011 (session 10). No recommendations were made specifically concerning corporal punishment of children. However, the following recommendations were made and were accepted by the Government:
“Strengthen efforts to fulfil obligations under the Convention on the Rights of the Child (Australia);
“Strengthen the mechanisms of legal and social protection of children against violence, particularly sexual, of which they are victims (France);
“Further promote women’s and children’s rights taking into consideration the views of relevant treaty bodies of the United Nations system (Italy);
“Increase its efforts to combat violence against women and children (Germany)”
Examination in the second cycle took place in 2016 (session 24). The following recommendations were made:
“Continue to promote the rights of children by fighting effectively against corporal punishment (Djibouti);
“Prohibit all corporal punishment of children, including in the home (Estonia);
“Prohibit corporal punishment of children in all settings (Tunisia)”
The Government accepted the recommendations.
Committee on the Rights of the Child, Concluding Observations
Session 061 (2012)
(16 October 2012, CRC/C/NAM/CO/2-3, Concluding observations on second-third report, paras. 18, 19, 38 and 39)
"… The Committee also regrets the lack of information on the cases of violence against children, including corporal punishment….
"The Committee … recommends that the State party collect systematic data on cases of violence against children, in particular sexual violence and corporal punishment, including by requiring all schools, alternative care institutions and state structures to report all instances of violence against children.
"The Committee notes that the Education Act (Act No. 16 of 2001) prohibits corporal punishment in schools, and that the Supreme Court ruling of 1991 ruled that corporal punishment is unlawful in school and as a sentence for crime. However, the Committee is gravely concerned about the information provided by the State party that:
a) the practice of corporal punishment remains widespread in all settings, including in schools;
b) certain new legislation, such as the Combating of Domestic Violence Act (Act No. 4 of 2003), and laws prohibiting corporal punishment in schools are not fully enforced in practice;
c) there is an absence of legislation that explicitly prohibits corporal punishment in the home, penal system and alternative care settings. In addition, the Committee deplores the fact that “reasonable chastisement” of a child is a common law defence to the crimes of corporal punishment.
"The Committee strongly calls upon the State party:
a) to pass, as a matter of priority, the Child Care and Protection Bill with a view to prohibiting corporal punishment under civil and customary law and in all settings, including in the home, in school and in alternative care settings;
b) to ensure that laws prohibiting corporal punishment are effectively implemented and that legal proceedings are systematically initiated against those responsible for corporal punishment;
c) to immediately repeal all provisions authorising corporal punishment;
d) to introduce sustained public education, awareness-raising and social mobilization programmes, involving children, families, communities and religious leaders, on the harmful effects, both physical and psychological, of corporal punishment, with a view to changing the general attitude towards this practice, and to promote positive, non-violent and participatory forms of child-rearing and discipline as an alternative to corporal punishment;
e) to ensure that all school teachers and personnel complete mandatory trainings on the rights of child and on the harmful effects, both physical and psychological, of corporal punishment and encourage positive behavioural support and alternative forms of discipline."Read more from Session 061 (2012)
Committee Against Torture, Concluding Observations
CAT session 059 (2016)
(1 February 2017, CAT/C/NAM/CO/2, Concluding observations on second report, paras. 36 and 37)
“While welcoming the adoption of the Child Care and Protection Act, No. 3 of 2015, which complements the Education Act, No. 16 of 2001, and penalizes corporal punishment in the home, in the criminal system and in alternative care settings, the Committee remains concerned at the lack of information regarding its enforcement and implementation.
“The State party should ensure that all laws prohibiting corporal punishment are effectively implemented, all allegations of corporal punishment investigated and perpetrators prosecuted and punished. The State party should also conduct awareness-raising campaigns about the harmful effects of corporal punishment on children and inform the public that such acts are prohibited.”Read more from CAT session 059 (2016)
CAT session 018 (1997)
(6 May 1997, A/52/44, paras. 227-252, Concluding observations on initial report, para. 250)
"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."Read more from CAT session 018 (1997)
Committee on the Elimination of Discrimination Against Women, Concluding Observations
CEDAW session 061 (2015)
(24 July 2015, CEDAW/C/NAM/CO/4-5 Advance Unedited Version, Concluding observations on fourth/fifth report, paras. 30 and 31)
“The Committee welcomes the revision of the Teenage Pregnancy Policy of 2009 on the prevention and management of pregnancy and the provision of life skills as a subject in schools which, inter alia, focuses on the dangers and effects of teenage pregnancies. However, the Committee is concerned at the high rates of pregnancy resulting in drop out of girls from school, particularly in Kavango and Kunene regions. It is also concerned that girls routinely avoid engineering courses. The Committee is further concerned about the lack of appropriate measures to enforce the law which prohibits corporal punishment and prevent its use in all settings, particularly in schools.
“The Committee recommends that the State party: ...
d) intensify law enforcement efforts to curb corporal punishment with a view to eliminating its use in all settings, particularly in schools, and promote the use of non-violent forms of disciplining.”Read more from CEDAW session 061 (2015)
African Charter on the Rights and Welfare of the Child, Concluding Observations
Session 25 (2015)
([October 2015], ACERWC, Concluding observations on initial report, para. 25)
“The Committee commends the State Party for prohibiting corporeal punishment in schools under the Namibian Constitution and the Education Act. The Committee further applauds the State Party for recognizing positive disciplining measures under the Code of Conduct for Teaching Service. As part of the continuous effort to protect children from abuse and torture, the Committee recommends the State Party to abolish corporeal [sic] punishment and to promote positive disciplining measures in all settings including at home.”Read more from Session 25 (2015)
Prevalence/attitudinal research for Namibia in the last 10 years
A 2008 survey of 1,680 respondents found that 78% thought 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 it was common in their communities for children to be smacked or caned. Respondents from households with children aged 2-14 years old were asked what forms of discipline had been used in their household: 40% said children had been spanked, hit or slapped on the bottom with a bare hand, 30% said children had been hit with objects and 18% that children had been hit or slapped on the face, head or ears.
(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)
 13 February 2015, E/C.12/NAM/1, Initial state party report, para. 376
 28 October 2015, A/HRC/WG.6/24/NAM/1, National report to the UPR, para. 90
 Legal Assistance Centre, correspondence with the Global Initiative, 10 June 2015
 30 June 2016, A/HRC/32/2 Advance Unedited Version, Report of the Human Rights Council on its 32nd session, para. 200
 21 August 2015, CCPR/C/NAM/Q/2, List of issues, para. 23; 10 December 2015, CCPR/C/NAM/Q/2/Add.1, Reply to list of issues
 Ex Parte Attorney-General, Namibia: in Re Corporal Punishment by Organs of State, 1991 (3) SA 76
 Van Zyl v The State (CA 25-2014)  NAHCMD 246 (05 September 2016)
 The Correctional Service Act, Act No. 9 of 2012, repealed the Prisons Act, Act No. 17 of 1998
 Namibia’s report to the UPR in 2015 confirmed that the Criminal Procedure Act, Act No. 51 of 1977, is the principal piece of legislation governing criminal procedure (28 October 2015, A/HRC/WG.6/24/NAM/1, National report to the UPR, para. 20)
 30 June 2016, A/HRC/32/2 Advance Unedited Version, Report of the Human Rights Council on its 32nd session, para. 200
 A/HRC/17/14, Report of the Working Group, paras. 96(1), 96(6), 96(13) and 97(11)
 15 April 2016, A/HRC/32/4, Report of the working group, paras. 137(127), 137(128) and 137(129)
 14 June 2016, A/HRC/32/4/Add.1, Report of the working group: Addendum, para. 11