The Constitutional Court must be applauded for handing down far reaching judgments in so far as the promotion, protection and fulfilment of human rights set out in the Constitution is concerned. Among these judgments is State v Chokuramba CCZ 10/19 which outlawed the imposition of corporal punishment on male juveniles convicted of criminal offences. Corporal punishment is any punishment in which physical force is used to cause some degree of pain or discomfort. Whipping, slapping, spanking, kicking, pinching or any punishment calculated to cause bodily harm is corporal punishment. The Constitutional Court is yet to determine whether or not parents at home and teachers at school should beat up children for disciplinary purposes.
Section 175 of the Constitution provides that where a court makes an order declaring any law to be constitutionally invalid, such an order has no force of law until confirmed by the Constitutional Court. Simply put, only the Constitutional Court can make a final decision on constitutional invalidity. Where for example, the High Court makes an order to the effect that a certain law is unconstitutional, the case in question must be referred to the Constitutional Court for confirmation or discharge.
Judicial corporal punishment used to be authorised by section 353 of the Criminal Procedure and Evidence Act, Chapter 9:07(CPEA). The Honourable Justice Muremba referred the case of S v Chokuramba to the Constitutional Court after making an order to the effect that judicial corporal punishment upon male juveniles is unconstitutional. Subsequently the Constitutional Court in terms of section 175 of the Constitution struck down section 353 of the CPEA and declared that with effect from April 3 2019 no male juvenile convicted of any offence shall be sentenced to receive moderate corporal punishment.
Section 241 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 permits parents and guardians to administer moderate corporal punishment on boys and girls under eighteen. It also authorises school teachers to administer moderate corporal punishment on boys under eighteen. Corporal punishment upon female pupils is, however, prohibited. On March 3 2017, the Honourable Justice Mangota referred the case of Pfungwa and Another v Headmistress of Belvedere Jnr Primary School and Others HH 148/17 to the Constitutional Court in terms of section 175 of the Constitution. The case involved a minor female pupil who was assaulted with a thick rubber pipe by her school teacher. The reason for the beating was that her mother had not signed her reading book as confirmation that homework had been done. The pupil allegedly suffered red bruises on her back as a result of the assault.
Linah Pfungwa, the assaulted pupil’s mother went on to send pictures of her bruised daughter on a WhatsApp group for parents and it turned out that other pupils had also been assaulted by the same teacher. Linah Pfungwa together with Justice for Children Trust then took the matter to the High Court to seek an order to have corporal punishment in school and in the home declared unconstitutional. Justice for Children Trust is a corporate body whose main objective is to ensure that international standards which protect children are realised and actualised in Zimbabwe. Represented by Mr Tendai Biti, Justice for Children Trust also made contributions in the landmark case of S v Chokuramba.
Arguing for the applicants in the Pfungwa case, Tendai Biti submitted that corporal punishment in the home and in school is unconstitutional in the sense that it violates sections 51, 53 and 81 of the Constitution. Section 51 confers on every person, the right to human dignity. Section 53 provides that “No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment”. Section 81 elaborates the rights of children. It provides that children have rights inter alia, to equal treatment before the law and to be protected from any form of abuse. Convinced by the applicants’ arguments the High Court referred the Pfungwa case to the Constitutional for a declaration of constitutional invalidity. The case is still awaiting confirmation.
If the Constitutional Court confirms the High Court’s findings in Pfungwa, no one, whether a teacher at school or a parent at home will be allowed to whip, smack, slap, spank, kick or even pinch a child. Parents and teachers will have to resort to other means of instilling discipline than corporal punishment.
The decision of the Constitutional Court will be final. It is a no-brainer that disallowing parents to discipline their own children through corporal punishment will brew public outcry.
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While it may be argued that corporal punishment is unconstitutional, a blanket ban approach seem not to be the best solution. In Pfungwa, Mr Biti argued that ‘corporal punishment in school is dangerous in that it is administered indiscriminately without any measure or control over the teachers who administer it. The point I make from this argument is that corporal punishment is a necessary tool for instilling discipline but it must be vigilantly administered. It is submitted that stringent measures must be put in place in schools to ensure corporal punishment is not indiscriminately administered.
Parents and guardians who indiscriminately administer corporal punishment must be arrested for contravening section 7 of the Children’s Act, Chapter 5:06. The maximum sentence that a court can impose upon conviction is 5 years imprisonment or a level 10 fine (RTGS$6000). The sentencing guideline for the offence seem to be deterrent enough.
As long as corporal punishment is vigilantly administered, it cannot be said to be a violation of a child’s dignity. Neither can it be argued to be an inhuman or a degrading punishment. If on the other hand it is indiscriminately administered, as was in Pfungwa, it undeniably becomes unconstitutional. Sometimes the use of the rod would be the child’s best interests. Be that as it may be, the Constitutional Court is going determine whether the rod should be spared. The nation is curiously waiting for yet another far reaching judgement.
