Prohibition of all corporal punishment in Kenya (2010)
On 4 August 2010, Kenya held a referendum on a proposed new Constitution. The result was a “Yes” vote and the Constitution came into force on 27 August 2010. The Bill of Rights protects the right of every person not to be subjected to corporal punishment by any person in any setting. Article 29 (Freedom and security of the person) states:
Every person has the right to freedom and security of the person, which includes the right not to be – ...
c) subjected to any form of violence from either public or private sources;
d) subjected to torture in any manner, whether physical or psychological;
e) subjected to corporal punishment; or
f) treated or punished in a cruel, inhuman or degrading manner.”
The rights apply to all persons and all settings, public and private. Article 20 (Application of Bill of Rights) states:
(1) The Bill of Rights applies to all law and binds all State organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.
(3) In applying a provision of the Bill of Rights, a court shall –
a) develop the law to the extent that it does not give effect to a right of fundamental freedom; and
b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom....”
Specific application of certain rights to certain groups of persons is addressed in Part 3 of the Bill of Rights, stating that this “shall not be construed as limiting or qualifying any right” (article 52). Article 53 (Children) in this Part states:
(1) Every child has the right – ...
d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour....
(2) A child’s best interests are of paramount importance in every matter concerning the child.”
Kenya must now review and amend legislation which is incompatible with the new Constitution. This includes repealing the right of parents and others to “administer reasonable punishment” from article 127 of the Children Act (2001), the authorisation for school corporal punishment in the Education (School Discipline) Regulations, and any other laws which authorise corporal punishment in institutions and other settings. However, the Constitutional prohibition of corporal punishment overrides these provisions, making corporal punishment unlawful with immediate effect. Article 2 (Supremacy of this Constitution) states:
(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government....
(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid....
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”