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Judicial/school CP - October 2015

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The Herald, Harare, 15 October 2015

Corporal punishment permissible: Concourt

By Daniel Nemukuyu
Senior Court Reporter

Justice Malaba
Justice Luke Malaba

Parents and teachers can continue beating up [sic] children as a disciplinary measure because the landmark High Court judgment on corporal punishment only dealt with the constitutionality of caning of juveniles as judicial punishment.

This came out yesterday when the Constitutional Court was deferring indefinitely the proceedings for confirmation of the High Court judgment that outlawed sentencing of juvenile offenders to strokes of the cane.

Deputy Chief Justice Luke Malaba's sentiments yesterday clearly showed that there was no judgment outlawing spanking of children at home and in schools and that the High Court, if it went out of its way to determine the propriety of beatings in schools and homes, that was not part of the issue placed before it.

As far as the Constitutional Court was concerned, the issue for confirmation was only the constitutionality of corporal punishment by the courts.

Justice Esther Muremba, earlier this year ruled that corporal punishment was unconstitutional and had no place in the country's statutes because it was inhuman and degrading.

She ruled against sentencing under-age offenders to strokes of the cane, while upholding the conviction of a 15-year-old boy on [sic] rape.


The boy had been sentenced to receive moderate corporal punishment of three strokes with a rattan cane by a magistrate, but appealed against the sentence at the High Court.

He was sentenced on September 26 last year on the strength of Section 353(1) of the Criminal Procedure and Evidence Act which allows for the imposition of corporal punishment.

The judgment was misconstrued by many to mean that even at schools and in the home, beating up [sic] children as a disciplinary measure was no longer permissible.

Postponing the hearing on the confirmation of the High Court judgment yesterday, Justice Malaba said the Constitutional Court was only going to deal with the issue challenged at the High Court on whether or not it is constitutional to impose corporal punishment as a judicial sentence to juveniles.

"There is no need to address the issue of spanking in the home or at school because what should have been done in the High Court was to determine the constitutionality of corporal punishment as a sentence.

"What the Constitutional Court will now consider is the constitutionality of judicial caning," said Justice Malaba.

The matter was postponed indefinitely to allow the Zimbabwe Lawyers for Human Rights, who are also a friend of the court (amicus curiae) to properly serve the other parties with their heads of argument.

Justice Muremba said her interpretation of Section 53 and 86 of the new Constitution brought her to the conclusion that corporal punishment was now unconstitutional.

While the issue was still pending at the Constitutional Court, Chief Justice Godfrey Chidyausiku recently provisionally set aside the High Court order outlawing the caning of juveniles as a form of punishment.

Chief Justice Godfrey Chidyausiku said while the case awaited hearing by the nine-member bench, magistrates could impose corporal punishment on juvenile offenders.

Mr Tendai Biti, who volunteered to file opposing arguments protecting children from corporal punishment, yesterday appeared in court on behalf of the children.

The Constitutional Court has invited Advocate Thabani Mpofu to assist with arguments as a friend of the court (amicus curiae).

Adv Mpofu said caning of children whether in school, home or at court, was for the good of the children.

"It is a form of treatment which is meant for the greater good of the recipient," he said.

"To the criminal, it means they will not be debased by being required to share a cell with a 40-year old who might molest them.

"To a child in a home, it means being set on the dignified path and having one's future secured.

"To a child in school, it means being provided with an opportunity to represent other people in court, that having been the exact effect of caning on present counsel and many others. It must be celebrated," said Adv Mpofu.

He said the judge of the High Court erred in holding that corporal punishment was inhuman.

"Dogs do not receive corporal punishment, it is human beings who do. This is a form of punishment or treatment which is meant for human beings. It is as old as the world itself and it cannot seriously be argued that the treatment is inhuman," Adv Mpofu argued.

"What is inhuman is to tell people that they cannot discipline their children. The world would surely come to an end," he said.

Adv Mpofu added that even religiously, corporal punishment was an acceptable method of disciplining children.

"Religiously, it is to ensure that children grow up in favour of both God and man.

"The pedagogies employ the method in ensuring that children reach their potential and are not distracted in their studies. That cannot be cruel and it cannot be heartless. That cannot be spiteful," he said.

Mr Justin Uladi represented the National Prosecuting Authority in the matter.

© 2013 The Herald

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