Namibia 1991 Supreme Court judgment
Condemnation of corporal punishment in schools and the penal system – Ex parte Attorney General, Namibia: in Re Corporal Punishment by Organs of State, 1991(3)SA 76
The Namibian Supreme Court examined corporal punishment as imposed by organs of the state, firstly in relation to “judicial, quasi-judicial and administrative” organs of the state and secondly in relation to schools. After citing the national legislation which permitted corporal punishment in the penal system and in schools, and quoting the Constitutional provision against torture and cruel, inhuman or degrading treatment or punishment (art. 8), the leading judge, Judge Mahomed, stated:
The question as to whether a particular form of punishment authorised by the law can properly be said to be inhuman or degrading involves the exercise of a value judgment by the Court….
“It is however a value judgment which requires objectively to be articulated and identified regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its national institutions and its Constitution and further having regard to the emerging consensus of values in the civilized international community (of which Namibia is a part) which Namibians share. This is not a static exercise. It is a continually evolving dynamic. What may have been acceptable as a just form of punishment some decades ago, may appear to be manifestly inhuman or degrading today. Yesterday’s orthodoxy might appear to be today’s heresy.”
The judgment considered the growing international consensus that judicial corporal punishment violates a person’s human dignity with reference to international human rights law, including the European Convention on Human Rights and relevant case law, and to national legislation and case law in a number of countries. It also examined – and rejected – arguments that judicial corporal punishment may be acceptable for juvenile even if regarded as violating the rights of adults. The judgment concluded that with regard to judicial corporal punishment:
… the infliction of all corporal punishment (in consequence of an order from a judicial or quasi-judicial authority) both in respect of adults as well as juveniles, constitutes degrading and inhuman punishment within the meaning of Article 8(2)(b) of the Namibian Constitution.”
With regard to corporal punishment in schools, the judgment again analyses the arguments for supporting its use and at case law in a number of countries, and concludes that corporal punishment inflicted on students at government schools pursuant to Ministerial regulations is in conflict with article 8(2)(b) of the Namibian Constitution.
The leading judge noted that it would not be appropriate “to allow corporal punishment which is unconstitutional to continue to be inflicted until Parliament makes the necessary amendments”. So the Court made two orders:
1. It is declared that the imposition of any sentence by any judicial or quasi-judicial authority, authorising or directing any corporal punishment upon any person is unlawful and in conflict with article 8 of the Namibian Constitution.
“2. It is further declared that the infliction of corporal punishment in Government schools pursuant to the existing Code formulated by the Ministry of Education, Culture and Sport or any other direction by the said Ministry or any other organ of the Government, is unconstitutional and unlawful and in conflict with article 8 of the Namibian Constitution.”
In additional remarks on the judgment, intended to explain how the court arrived at its decision, Judge Berker concurring stated:
… Whilst very often there is little or no disagreement as regards the abolishment of corporal punishment by judicial or quasi-judicial bodies, there is less agreement with regard to the desirability or otherwise of the imposition of corporal punishment, judicially or quasi-judicially ordered to be meted out to juveniles, that is on young persons under the age of 21 years. Even less agreement exists in respect of the desirability or otherwise of corporal punishment in schools. It seems to me that once one has arrived at the conclusion that corporal punishment per se is impairing the dignity of the recipient or subjects him to degrading treatment or even to cruel or inhuman treatment or punishment, it does not on principle matter to what extent such corporal punishment is made subject to restrictions and limiting parameters, even of a substantial kind – even if very moderately applied and subject to very strict controls, the fact remains that any type of corporal punishment results in some impairment of dignity and degrading treatment…. Added to this is of course the fact that whatever substantial restrictions and controls are placed on the method of the imposition of corporal punishment or chastisement by law, the actual execution thereof can never be fully controlled so that in practice despite such controlling provisions the application of such punishment may nevertheless result in a brutal and excessive manner.”
Subsequent law reform
The above judgment effectively prohibited corporal punishment of children in the penal system and in schools, and this is gradually being reflected through reform of national legislation. The Education Act 2001 explicitly prohibits corporal punishment in state schools, private schools and hostels. The Correctional Service Act 2012 makes no provision for corporal punishment in penal institutions. However, some legislation authorising corporal punishment in the penal system is still to be formally repealed. A Child Care and Protection Bill has been prepared which would prohibit corporal punishment of children in all settings outside the home.