Thank you for the excellent work. My question is about corporal punishment. My understanding is that it was outlawed in Kenya, but my daughter often reports that they were spanked in school for one mistake or the other, mainly using a ruler or cane. Should I take it up with management over the same as it makes me uncomfortable? My daughter is cheeky and is often in trouble.
At what point does the reasonable degree of punishment as Section 127 (5) of the Children’s Act provides become untenable? It should be seen as excessive and unreasonable. Likely bordering on abuse, violence, malice and unhealthily so, to occasion debate whether the absence of reasonableness qualifies it as corporal? For that matter, a journey of how punishment is envisaged in law is worth a trip. Your question demonstrates a sense of care and concern about the general welfare and rights of children.
In a bid to respond to the undesired behaviour of students, many schools and learning institutions tend to inflict them with physical pain or discomfort. Observable practice, as experienced by your daughter, show common teachers’ use of striking children’s palms, buttocks or hands with a cane, ruler or leather strap. Though less common, smacking or spanking with the open hand is reported at lower levels in schools. Whether this becomes corporal punishment is a matter of interpretation.
However, this does not reduce the concerns you raise about corporal punishment. Following three fundamental questions arise, namely: is punishment as captured in the Children’s Act clear to protect the best interest of the child as expected by Article 53 (2) of the Constitution; is it likely that legal parameters about cruelty, abuse and violence are too abstract to promote responsible caregiving, parenting or guardianship on matters punishment: does the political and legal exist to address misuse of the concept of punishment in schools, amongst other caregiving institutions?
Determining whether punishment is executed within confines of rationality is as open to the punishers as to the assessors, besides complainants. The context created by law is elaborately insinuated at Section 127 (1), which among other descriptions, mentions: wilful assault, ill-treatment, or exposure that terminates at unnecessary suffering or injury to health, including loss of sight or hearing.
Further, in Section 127 (5), death is referred to as another indication of irrationality in punishment actions. The ambiguity of measuring the indicators of unreasonable punishment does not help those who find themselves chasing justice for children who have suffered what can be denoted as “over-punishment.”
In connecting punishment to corporal dimensions as provided for at Section 127 (5), it is necessary to view and interrogate the provisions of Section 191 (2) of the Children’s Act, which states offers that no child offender should be subjected to corporal punishment. A child offender in the realm of law is a child or found guilty of some offence.
This suggests that such a child has gone through the juvenile court system and been found guilty through a fair trial. Clearly, this is not the case you are talking about. It is not fair to contextualise the meaning of a child offender to suit the circumstances of your daughter.
To cure the ambiguity and abstractness described in this text, we refer to United Nations Convention on the Rights of the Child, which at Article 19 obligates state parties, including Kenya, to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.” This may have led to the banning of corporal punishment in schools in 2001 when the Children’s Act came into force.
The Basic Education Act, which guides education systems for all children, incorporates eliminating all forms of corporal punishment or any form of cruel and inhuman treatment or torture as a guiding principle in delivering education in schools. This Act goes further to provide for criminal punishment for any person who subjects children to torture and cruel, inhuman or degrading treatment or punishment, in any manner, whether physical or psychological. This is clearly encapsulated at 29 of the Constitution.
Although there are no practice guidelines on how punishment is to be administered in schools, Boards of Management, alongside their leadership, have an obligation to ensure that no corporal punishment is administered to children.
This is achieved by establishing two key committees: one that focuses on discipline, ethics and integrity, and the other on human rights and student welfare at the board and teaching staff level. The progressive interpretation of the law is that the committees jointly or severally formulate appropriate checking mechanisms and correcting deviant behaviour among children. You have three pathways to deal with this matter.
One, raise this matter with the school committee, with the mandate for corrective and disciplinary issues. Two, export your concerns to the school management board as a higher policy organ. Three, prepare a petition to the children’s court citing the many Articles of the Constitution and Sections of the various laws herein mentioned to claim abuse your daughter’s fundamental rights, should the first fail to address your concerns. The purpose should be to address the existing discomfort and nothing more.
Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director of the Legal Resources Foundation. Legal query? E-mail [email protected]
