Helping children learn without fear

ABSTRACT

Corporal punishment is widespread and deep-rooted in Zimbabwe, despite the fact that it is a gross human rights violation. This advocacy paper argues for the complete explicit abolition and elimination of corporal punishment in schools by the government in the spirit of the Convention on the Rights of the Child (CRC) of which Zimbabwe is a state party and the new Constitution of Zimbabwe Amendment (20) Act of 2013 .The paper further calls for the adoption of a positive discipline paradigm in the education system that is guided by the guiding principles of the CRC and child development pedagogy. The paper is a product of extensive literature review.

INTRODUCTION

Corporal punishment is a ferocious, archaic, inhumane and agonising apparatus of modifying children’s behaviour, which should have no place in schools .Perplexingly it is the widely employed and predominantly recognized method of ‘disciplining’ children in Zimbabwean schools (Shumba, 2012, Chemhuru, 2010). It is sanctioned by some sections of the law (Global initiative to end all corporal punishment, 2012, Child Protection Society, 2009, The Secretary for Education and Culture Circular P 35 1993).

This paper maintains that corporal punishment is torture, violence against children and gross human rights violation and it should not just be abolished but eliminated. The practice has deep-seated and far reaching detrimental physical and emotional effects on children (Hyman, 1996, Durrant, 2007, Berger, 1988). Paradoxically most studies have established that corporal punishment has no positive effect on modifying a child’s behaviour or improving academic performance; in actual fact the opposite is true (Gershoff, 2007, Hyman, 1996).

The Committee that monitors the Convention on the Rights of Children defines corporal punishment in paragraph 11 of the General Comment as: ‘Any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (smacking, slapping, spanking) children with the hand or with an implement—whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, burning, scalding, or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In addition, there are other non-physical forms of punishment which are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.’ (General Comment, No.8, 2006, paragraph 11).

The belief that corporal punishment is indispensable and effective in ‘disciplining’ children has become engrained and uncritically putative in Zimbabwean society (Shumba, 2003). It is this ideology that has been used as a justification for the kind of disciplinary modalities in schools (Shumba, 2003a,b & 2 2001; Shumba & Moorad, 2000; Straus, 1994).

Corporal punishment is rife and deep-rooted in Zimbabwe (ZNCWC, 2011). The National Baseline Survey on Life Experiences of Adolescents which is the most comprehensive and up to date empirical research in Zimbabwe on violence against children unearthed disturbing and stark statistics. Among children who were physically abused by an authoritative figure, 99 percent of females and 95 percent of males were physically abused by teachers and 1 in 10 of the males were physically abused by a school head (ZIMSTAT et ,2013). This is awful data of violence against children in schools by teachers in the name of corporal punishment and ‘discipline’ of children. In precise terms, this indicates that almost all children in Zimbabwe who pass through the education system are subjected to some form of corporal punishment at one stage.

This advocacy paper argues for the complete explicit abolition and elimination of corporal punishment in schools by the government in the spirit of the (CRC) of which Zimbabwe is a state party and the new Constitution of Zimbabwe Amendment (20) Act of 2013 .The paper further calls for the adoption of a positive discipline paradigm in the education system that is guided by the guiding principles of the Convection of the Rights of Children and child development pedagogy. There is a deliberate attempt in this write up to neglect delving into the socio-economic situation in Zimbabwe, effects of corporal punishment, its predictors and prevalence as this is covered extensively in various literature. This piece further does not prescribe a specific positive or constructive discipline method but a framework that can be employed by the Ministry of Primary and Secondary Education in developing a constructive child discipline methodology that is child friendly and sensitive to the rights of children. Whilst corporal punishment is widespread in homes, this paper deliberately focuses on the education system. This paper is a product of analysis of international law and literature on constructive and positive discipline.

THE LEGALITY OF CORPORAL PUNISHMENT IN ZIMBABWE

The new Constitution of Zimbabwe Amendment (20) Act of 2013 Chapter 4 Section 53 asserts freedom from torture or cruel, inhuman or degrading treatment or punishment and says that: ‘No person may be subjected to physical or psychological torture or to cruel, inhuman ordegrading treatment or punishment’. This section of the law makes all forms of corporal punishment illegal and stands for their abolition. However signing of the new in 2013 the existing laws have not been realigned to it and so laws that permit corporal punishment are still operational.

According to the Statutory Instrument 1 (2000) of Zimbabwe, only the school head or a teacher to whom authority has been delegated by the head, or any other teacher in the presence of the head, can inflict corporal punishment on boys on the buttocks with a suitable strap, cane or smooth light switch (The Secretary for Education and Culture Circular P 35 1993). In the case of girls, the law stipulates that corporal punishment should be administered on hands and not on buttocks (The Secretary for Education and Culture Circular P 35 1993).

The Criminal Law (Codification and Reform) Act (2004) states in article 241 that ‘(2) (a) a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward’.

In the penal system, corporal punishment is lawful as a sentence for crime for males under the age of 18. Article 336 of the Criminal Procedure and Evidence Act (1927) lists corporal punishment as an available sentence for boys convicted of any offence; article 353 prescribes how this is to be carried out – up to six strokes, inflicted in private, following certification by a medical practitioner that the boy is fit to receive the punishment; the parent or guardian has a right to be present. Articles 101 to 105 of the Prisons Act also prescribe how a sentence of corporal punishment should be carried out, and state that it should not be inflicted in instalments. Corporal punishment is lawful as a disciplinary measure in penal institutions under article 15 of the Constitution and article 241 of the Criminal Law (Codification and Reform) Act.

Corporal punishment is lawful in the alternative care settings under article 241 of the Criminal Law (Codification and Reform) Act. On paper and in practice these pieces of legislation and policy are still in operation despite being in incongruous with the new Constitution.

CONCEPTUAL FRAMEWORK: THE HUMAN RIGHTS IMPERATIVE TO ELIMINATE CORPORAL PUNISHMENT IN SCHOOLS

This paper agues for the abolition and elimination of corporal punishment from a human rights standpoint .The international human rights law is unequivocal with regards to the inhuman nature of corporal punishment and the need for global abolition and implementation of laws to ensure that its practice is curbed. The United Nations Convention on the Rights of the Child is candid and explicit that human rights are universal, that they include children and (UNCRC, 2006). Article 19 of the UNCRC mandates states to take ‘all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence’ (UNCRC, 2006). In addition, Article 28(2) requires states to ‘take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention’(UNCRC, 2006).

The state’s obligation to provide effective protection of children, in their homes, schools and everywhere else, is clearly established in the Convention. The Convention sets forth, in the combination and interactions of its articles, expectations that the treatment of each a child should meet the child’s basic needs for physical, psychological and spiritual well-being (Newell, 2005). It also expects and provides supportive direction for the full development of the child’s potentials and for development of pro-social skills and the characteristics necessary to be an effective member of a free society (Newell, 2005). Particularly relevant in this regard are the articles identified by the Committee on the Rights of the Child (monitoring body for the Convention) as General Principles: Articles 2, 3, 6, 12; the Convention’s proscriptions on all forms of violence and mistreatment against children, Articles 19, 34, 37; and the aims of education, Article 29 (UNCRC ,2006).

The paper argues for the interpretation of the UNCRC in a holistic fashion, with the spirit of each article and of relationships between articles respected for their relevance to each and all conditions of the child. From this standpoint, the Convention can be interpreted as arguing that justice must be applied to each and every child – without discrimination (Article 2); in the best interests of the child (Article 3); respecting the child’s dignity and privacy (Articles 28.2 and 16); with opportunity for the child’s perspectives to be heard and applied (Article 12); without abuse, degradation or exploitation (Articles 19, 32, 34 and 37); promoting the child’s recovery towards health, self-respect and dignity (Article 39), reintegration and constructive participation in society (Article 40); and ultimately preparing the child for responsible life in a free society(Article 29.1d). This combination of standards reinforces the Convention’s expectation requirement that justice be fair and transformative. The history of human development and behaviour gives strong recognition to the significance of achieving justice – particularly justice that is fair and transformative (Newell, 2005). Expert opinion on moral and ethical development emphasizes the importance of fairness and justice in dealing with standards and consequences of human behaviour (Damon, 1988; Kohlberg, 1984; Lapsley, 1996; Piaget, 1965), as does philosophical and legal theory (Rawls, 1972). The roots of these values may be found in understanding of human nature.

The Committee on the Rights of the Child which monitors implementation of the Convention on the Rights of the Child has consistently stated that legal and social acceptance of corporal punishment of children whether in the home and/or in schools is not compatible with the Convention on the Rights of Children and is a human rights violation. (Global initiative to end all corporal punishment, 2011). At the 42nd session of the Committee in 2006, a General Comment was issued which states that it is ‘…the obligation of all states parties to move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children and to outline the legislative and other awareness-raising and educational measures that States must take” (General Comment, No.8, 2006, paragraph 2). As well as being an obligation of States parties under the Convention on the Rights of the Child, addressing and eliminating corporal punishment of children is ‘a key strategy for reducing and preventing all forms of violence in societies’ (paragraph 3).

In its General Comment on ‘The Right to Education’, the Committee on Economic, Social and Cultural Rights refers to consistent interpretation of the Convention on the Rights of the Child, and states: ‘In the Committee’s view, corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration of Human Rights and both Covenants: the dignity of the individual. Other aspects of school discipline may also be inconsistent with human dignity, such as public humiliation. Nor should any form of discipline breach other rights under the Covenant, such as the right to food. A State Party is required to take measures to ensure that discipline which is inconsistent with the Covenant does not occur in any public or private educational institution within its jurisdiction.’

In Africa, the African Charter on Human and Peoples’ Rights (1981) asserts similar human rights standards, including the right to equal protection under the law (Article 3), respect for physical integrity (Article 4), protection from torture and all cruel, inhuman or degrading treatment or punishment (Article 5). The African Commission on Human and Peoples’ Rights, following investigation into a sentence of lashings for a group of students in the Sudan, stated that the sentence of corporal punishment was a violation of Article 5 of the African Charter on Human and Peoples’ Rights (African Commission on Human and Peoples’ Rights, 2000). The Commission requested the Government of Sudan ‘to immediately amend the Criminal Law of 1991, in conformity with its obligations under the African Charter and other relevant international human rights instruments; abolish the penalty of lashes; and take appropriate measures to ensure compensation of the victims’. Article 11 requires that: ‘States Parties to the present Charter shall take all appropriate measures to ensure that a child who is subjected to school or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child and in conformity with the present Charter’. The Charter also emphasizes in Article 1 that: ‘Nothing in this Charter shall affect any provisions that are more conductive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State’.

Human rights are universal. Hitting and deliberately hurting and humiliating children breaches their fundamental rights to physical integrity and human dignity.It is paradoxical, but sadly true, that the progression of protection in states started with adults – to remove rights of husbands and masters to beat their wives, servants and apprentices, and to end whipping and flogging as adult sentences of the courts and as punishments within prisons and in armed forces. As adults became progressively protected from these forms of extreme, deliberate violence by legal reform and changes in public attitudes, there is little progress in protecting children.

TOWARDS POSITIVE DISCIPLINE IN ZIMBABWE: THE BUILDING BLOCKS.

DEFINING POSITIVE DISCIPLINE

‘Positive discipline is non-violent and respectful of the child as a learner. It is an approach to teaching that helps children succeed, gives them the information they need to learn, and supports their development. Positive discipline is a set of principles that can be applied in a wide range of situations’ (Durant, 2010).

The agenda against corporal punishment as a discipline practice has been made. Established human rights standards provide the impetus for eliminating it through law reform, education, and research knowledge concerning its effects on child development argue strongly against its use. Hitting people, the deliberate infliction of physical pain, and, therefore, all corporal punishment has been recognized as directly in conflict with, and a violation of, fundamental rights to physical integrity and human dignity guaranteed by various international instruments particularly the United Nations Convention on the Rights of the Child, and in the interpretations of international and national human rights monitoring. This paper provides the guiding principles that should guide the process of adopting non-violence, legal and human disciplinary mechanisms. The building block or framework to positive and constructive discipline largely derived from incites fromPower & Hart , 2005, Jurant , 2010 , Naker & Sekitoleko ,2009 and the UNCRC ,2006)

RESPECT THE CHILD’S DIGNITY

All persons have a right to respect and support for their inherent and naturally endowed dignity and full development in the spirit of the Universal Declaration of Human Rights and CRC and the African Charter on the Rights and Welfare of the Child. The issue of human dignity is a running and cross cutting theme in the CRC. The Convention on the Rights of the Child in its Preamble recognizes the ‘inherent dignity’ of all members of the human family as foundational for child rights. The Convention provides obligations under international law to ensure respect for the child’s dignity in treatment of the child. This is accomplished, in part, through standards on the provision of education (Article 28.2: ‘States Partiesshall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention’), on the disabled (Article 23.1: ‘a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity), and on child/juvenile justice (Article 37c: ‘Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person’).

At a more fundamental and holistic level, the Convention’s standards on the best interests of the child (Article 3), and its requirement that treatment of the child be in conformity with the entirety of the treaty, demand respect for the dignity of the child (Article 28.2 , Power and Hart (2005).).The Convention prohibits treatment of the child that would be cruel, abusive, degrading, neglectful or exploitive (see Articles 19, 34, 36 and 37), and it requires educative processes respecting the dignity and potential of the child (for examples, Preamble paragraph 7 and the wording of Article 29 (29.1): ‘The preparation of the child for a responsible life in a free society, in thespirit of understanding, peace, tolerance, equality of sexes, and friendship amongall peoples’). Corporal punishment is inhuman and in many ways it subverts the inherent dignity of a human being. It is against this background that the Ministry of Primary and Secondary education adopts nonviolent, and progressive mechanisms of child discipline which recognises the inherent human worthy.

ENHANCE THE CHILD’S ACTIVE PARTICIPATION

The CRC envisages that ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child’ (Article 12.1). Article 12 of the Convention on the Rights of the Childis cardinal to establishing children as rights-bearing citizens capable of existentialthought and choice: persons and not property (Power and Hart, 2005). There can be no question that disciplinary practices, intended specifically to affect the child’s present and futurebehaviour and character, must respect the right of the child to express relevantviews and have those views given due weight(Power and Hart, 2005). Additionally, the Convention’s civil rights , Articles 13–15 strongly support enabling the child to develop viewsand to apply them to relevant life conditions through accessing information andresource persons, evoking ideological choice, and choosing what will be privateand public. Knowledge of human nature and development, across cultures, and of effective disciplinary practices gives additional support to involving the child as a participating partner in developmentally appropriate ways (Cook et al., 2004). The new paradigm of child discipline in Zimbabwe should ensure that children actively participates in process in the spirit of moulding the child’s in a non-violent manner.

RESPECT FOR THE CHILD’S DEVELOPMENTAL NEEDS

The present and future, the being and becoming states of the child, should be respected and supported (Power& Hart, 2005). This position is intrinsic to the Convention’s statements ‘that every child has the inherent right to life’, and that ‘States Parties shall ensure tothe maximum extent possible the survival and development of the child’ (Article 6), and that ‘education of the child shall be directed to: The development of the child’spersonality, talents, and mental and physical abilities to their fullest potential’ (Article 29a). It is further underlined by the Convention’s repeated referenceto the importance of assuring that treatment of the child should be consistentwith the evolving capacities or the age and maturity of the child (See Articles 5,12 and 14). These principles combine to argue that child disciplinary practicesmust take into consideration both the short- and long-term implications for thechild’s quality of life and development (Power and Hart, 2005). Discipline practices that respect and support these positive conditions at each point in the child’s life appear to promote better futures for all involved (Durant, 2010).

PROMOTE SOLIDARITY

Respect for diverse and shared perspectives and motivations enables individuals to be cooperative and constructive members of groups that provide support for individual and collective needs, including resolving conflicts and enhancing development and quality of life (Power and Hart, 2005). Mutual respect and social solidarity are promoted by the Convention on the Rights of the Child in many of its standards; for example, the ‘views of the child’ and the child’s ‘freedom of thought, conscience and religion’ are identified specifically as to be respected (Articles 12 and 13), and the child is to be prepared for a ‘responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of the sexes, and friendship among all peoples’ (Article 29.1d).

Additionally, the child’s ‘identity, including nationality,name, and family relations’ are to be preserved (Article 8), and the child is to be educated to support development of ‘respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own’ (Article 29.1c). Social solidarity and mutual respect, as promoted by individual articles andthe Convention as a whole, provide a context for child discipline that can helpsocialize the child towards responsible behaviour.

ASSURE FAIRNESS AND TRANSFORMATIVE JUSTICE

The best interests of the child and society benefit when a child grows through experience to respect and to contribute to predictability and fairness in applying standards, and to the positive transformational consequences for human behaviour. Multiple supports for this position are included in the Convention on the Rights of the Child. The Convention’s Preamble begins by affirming: ‘recognitionof human dignity and the equal and inalienable rights of all members (includingchildren) of the human family is the foundation of freedom, justice and peace inthe world’. Thereby, justice, compatible with pursuit of freedom and peace, is established as a superordinate value and goal for all peoples and societies.

CONCLUSION AND WAY FORWARD

In view of the above assertions and in line with recommendations by the UN Committee on the Rights of the Child, the Government of Zimbabwe should develop constructive or positive discipline method , initiate and support public awareness and education campaigns to promote positive, non-violent methods of child discipline in schools . This could be done in close collaboration with Non-Governmental Organisations and Community Based Organisations working for children’s rights, political and traditional leaders, faith-based organisations, educational institutions and international donor organisations. Children themselves could play an important role in these efforts. However, before embarking on awareness and education campaigns, the government needs to secure financial and human \
resources to implement a programme that can be sustained in the long-term. The media could also become a key partner in campaigns to raise awareness of children’s rights and alternative, non-violent forms of discipline.

In ratifying the CRC and the ACRWC, as well as other international human rights conventions, Zimbabwe is obliged not only to prohibit by law corporal punishment and other forms of humiliating or degrading punishment of children in the family, school, care institutions and the juvenile justice system, but also to develop awareness and education campaigns to promote positive, non-violent discipline of children. Many countries in the global community have abolished corporal punishment and adopted alternative progressive child discipline methodology and Zimbabwe can lend a leaf from them.

* Munyaradzi Muchacha is a postgraduate student at the University of KwaZulu Natal studying for a Masters in Social Work . He is a Child Protection Officer at Oasis Zimbabwe, a private voluntary organisation that works with orphans and vulnerable children.

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