COMMENT ON SOUTH AFRICA’S FIRST COUNTRY REPORT ON THE IMPLEMENTATION OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Submission by the Children’s Rights Project of the Community Law Centre at the University of the Western Cape, Cape Town, South Africa

Prepared by Ms J Gallinetti

16 May 2006

Tel 27-21-959 2950

E-mail:

Executive summary

This submission focuses specifically on corporal punishment in relation to the Convention against Torture and the protection of children’s’ rights. Despite the fact legislation and case law have outlawed the use of judicial corporal punishment as well as the use of corporal punishment in schools; research indicates that corporal punishment is still widely used at schools.

COMMENT ON SOUTH AFRICA’S FIRST COUNTRY REPORT ON THE IMPLEMENTATION OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Submission by the Children’s Rights Project of the

Community Law Centre at the University of the Western Cape,

Cape Town, South Africa

Introduction

  1. The Children's Rights Project is a project of the Community Law Centre at the University of the Western Cape, Cape Town, South Africa. The Children’s Rights Project has played an instrumental role in legislative and policy reform in South Africa regarding the rights of children. The Children Rights Project works towards the recognition and protection of children's rights within the framework of the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the Constitution of the Republic of South Africa.
  1. This submission follows the paragraph numbering of the Country Report and responses are given to these paragraphs.

Ad paragraphs 26 – 29, 35 – 38,191 -192 and 202

  1. These paragraphs involve a discussion on the prohibition of corporal punishment in the judicial system and in schools. South Africa, by ratifying the United Nations Convention on the Rights of the Child (CRC) in 1995, committed itself to fulfilling all the obligations under the Convention. One such obligation is to protect children from all forms of physical and mental violence as outlined in Article 19 and this protection extends to corporal punishment and what happens in the family. Similarly, provisions of the South African Constitution also aim to protect children from neglect, maltreatment, abuse and degradation,[1] provides for the right not to be treated or punished in a cruel, inhuman or degrading way,[2] and provides that everyone has inherent dignity and the right to have their dignity respected and protected.[3]
  2. Certain key provisions of the CRC which relate to protecting children from corporal punishment are articles 19 (1) and article 37(a).

Article 19(1) provides that:

“States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

and Article 37 (a) provides that:

“No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

  1. Article 19 provides children with protection beyond what is arbitrarily defined as “abuse” in different societies and also beyond the protection from torture and cruel, inhuman or degrading treatment or punishment under article 37 as it requires children to be protected from “all forms of physical or mental violence” while in the care of parents or others.[4] It asserts children’s equal human right to physical and personal integrity and it is linked to the right to life and to maximum survival and development guaranteed under article 6. It also requires states to take legislative, administrative, social and educational measures to protect children from all forms of violence. Thus, as a country that has ratified the Convention, in terms of article 4, South Africa is bound to comply with its provisions.[5]
  2. It is important to note that the protection guaranteed under article 19 extends to what happens within the family (including extended family or community)[6] and other caring situations.[7] The Committee on the Rights of the Child has indicated that the CRC requires a review of legislation to ensure that no level of violence is condoned and has particularly emphasized that corporal punishment in the family, school and other institutions or in the penal system is incompatible with the Convention.[8] The Committee has also criticized and expressed concern at legislation which, while it protects children against serious physical assaults defined as child abuse or child cruelty, allows for parents or other caregivers to use physical forms of punishment on children often with the stipulation that such punishment must be reasonable and moderate.[9]

The Committee has called, to many countries, for a clear prohibition of all corporal punishment- in the family, in other forms of care, in schools and in the penal system- and has proposed legal reform should be coupled with education campaigns in positive discipline to support parents, teachers and others. [10]

  1. It is noteworthy that South Africa has through legislation prohibited corporal punishment as a sentence, in institutions and in schools and our Constitutional Court has confirmed the fact that corporal punishment amounts to cruel inhuman and degrading treatment.

However, while judicial corporal punishment no longer exists as a practice, the major concern is that despite prohibition, corporal punishment as a practice still exists in schools. This is mainly due to the fact that there has been no comprehensive training of educators on alternatives to corporal punishment for disciplinary purposes.

  1. There have been studies that illustrate non-compliance with the legal prohibition on corporal punishment in schools. A research study was undertaken by Ntswake Senosi of the Education Policy Unit at the University of the Witwatersrand in response to perceived problems arising in the implementation of the ban on corporal punishment in South African schools, initiated in 1996 as part of the South African Schools Act. The research constituted an investigation into the role of the public administration in the development of policy around the implementation of the ban. This study noted that the Department of Education has developed a manual, Alternatives to Corporal Punishment: the Learning Experience, which is a practical guide for educators on how to develop and maintain a culture of discipline, dignity and respect in the classroom. It has also produced a guide for facilitators, Co-operative Discipline: An Alternative to Corporal Punishment, which assists those running workshops to empower school management teams (SMTs), educators, representative councils of learners (RCLs) and SGBs to implement co-operative discipline in schools, a positive culture of learning and teaching, and a learning environment that is safe, orderly and conducive to learning. The Alternative to Corporal Punishment provides a comparison between discipline and punishment. It encourages educators to reflect on their use of corporal punishment; under what circumstances they would employ it; and whether they recognize why the change in focus from corporal punishment to alternatives is important. This document also provides educators with suggestions for establishing discipline in their classrooms and how to keep it going. The Department of Education has also provided guidelines for SGBs on developing a school code of conduct and disciplinary procedures.
  2. But the study notes that the effective implementation of the policy banning corporal punishment has been prevented for a range of reasons. In general the interviewees believed that barriers to implementation are related to:
  • a lack of understanding of the policy
  • resource constraints, beliefs and attitudes (including parental, and sometimes educator, and even official, attitudes)
  • class sizes
  • the lack of alternatives perceived, or found, to be adequate
  1. It was clear from the research findings that awareness of government policy concerning corporal punishment is high and that systems of implementation are in place in all provinces. Monitoring is however erratic and official findings have consequently not been produced. Findings indicate that corporal punishment is still being used in a significant proportion of schools in South Africa. For instance, out of the six schools covered by the research for this study it became clear that only two, one in Gauteng and one in the Eastern Cape, had succeeded entirely in eradicating its use. Again, educators, learners and community members often condone its use, or at least believe in its efficacy as a means of discipline. Therefore, there is an urgent need for strategies to increase awareness of the human rights issues involved and of the harm to children caused by the practice. Learners appear not to take alternatives forms of discipline seriously because they are still exposed to corporal punishment at home, and alternatives are not perceived as effective when employed by teachers unconvinced of their value. The following recommendations arising from the study were made:
  • Consistency and professionalism - given the significance attached to this policy it would seem that it should be treated as a national competency under the auspices of the national Department of Education and centrally funded if possible. Provincial departments could then be given a mandate to implement awareness, advocacy and training along lines centrally determined by specialists and delivered by experts in a uniform programme made available to all school districts and ideally to all teachers directly.
  • In-service training -the need for, and current lack of, any national system of educator in-service training is urgent in order to give on-going support to teachers in the implementation of the full range of government education policy, including the ban on corporal punishment. This ban, its rationale and the alternative systems of discipline available, should be made part of the in-service training curriculum.
  • Participative democracy and holism - to achieve genuine ‘buy-in’ for alternative systems teachers would not only need to be enlightened about the reasons for the ban and the possibility of using other means of classroom control, but they would also need to be given officially organised space to debate the issues and to have an input into any alternative systems that are established. In addition, since effective systems cannot be established in a context of scepticism and ignorance among other significant stakeholders, ways will have to be found to involve the whole community, including traditional leadership and elders.
  • Sustainability and finance - good systems which are centrally based could assist in both capacity building and in ensuring that these excess funds are well spent
  1. A qualitative survey on children’s experiences of corporal punishment was commissioned by Save the Children Sweden, South Africa and undertaken by Clacherty, Donald and Clacherty in December 2004. Some of the quotes from children illustrate the fact that corporal punishment is still rife in schools:

I went to show her my work and she beats with a pipe and she said I told you to stop writing wrong stuff. (Boy, 6-8, urban, Gauteng)

The teacher hit me with a stick on the bum. (Boy, 13-18, semi-rural, Western Cape.)

We were sent to the principal to explain. The teacher told us to collect our fives on the buttocks. (Boy, 13-18, rural, Kwa Zulu -Natal)

She gave me 5 strikes on the buttocks. My heart was so sore and my bums were painful. I couldn’t sit down the whole weekend. Every time I looked at the teacher I resented her. (Girl, 13-18, rural, Kwa Zulu-Natal)

I was given two strikes on my bum. (Boy, 9-12, rural, KwaZulu-Natal)

The teacher got there and wanted his homework. So when I took it out, he hit me on my finger tips with a board duster, and it was cold. (Girl, 9-12, urban, Gauteng, low).

I was making a noise and the teacher and other children told her that I am crying and she called me and beat me again. (Girl, 6-8, rural, Limpopo)

This teacher (he uses the name children have given him and they all laugh so much) came and hit me. He throttled me, choking me, pulling me before he hit me. (Boy, 13-18 Western Cape)

With a thin stick on our hand. And she uses all her strength when she hits us. If you have long hair she opens a line in your hair and hits you, or if you have just plaited your hair she will just hit you in the middle (were the scalp is). When her right hand is tired she use her left hand and she smiles when she hits us. (Girl, 9-12, urban, Limpopo)

Sometimes they make us do the garden in the morning and that time we are losing because they carry on with the lessons and when you go in to the classroom you find another teacher who will chase you out telling you that is late to attend at this time and that means that your mornings will be wasted because we can’t do any school work until break. (Girl, 13-18, rural, Limpopo)

The teacher asked those who don’t have calculators to go and stand by the door. She gave us forks to do the garden and we didn’t finish when her period was over then later after school we were asked to finish it. I don’t have a calculator even today. I missed lots of lessons that day and the next day I had lots of work to do and I didn’t understand. (Boy, 9-12, rural, KwaZulu-Natal)

  1. A study by the Centre for Justice and Crime Prevention (2005) entitled the National Youth and Victimisation Study has yielded the following findings regarding corporal punishment in school:

“The use of corporal punishment as a means of effecting discipline was also widespread among the participants: more than half (51.4%) the participants reported being caned or spanked at school for their transgressions. The physical punishment of learners was prevalent in all the provinces. Nonetheless, the highest proportions of these responses were concentrated among youth from the Eastern Cape (65.3%), Mpumalanga (64.1%) and Limpopo (55.7%)”.

  1. It is submitted therefore, that while South Africa has complied with its legal obligations under CAT and the CRC, practical implementation of the ban on corporal punishment in schools is highly problematic and the South African government has much to do in this regard before it can be said there is full compliance with CAT and the CRC.

End

1

[1] Section 28 (1)(d) of the Constitution Act 108 of 1996

[2] Section 12(1)(e) of Act 108 of 1996

[3] Section 10 of Act 108 of 1996

[4] UNICEF Implementation handbook for the Convention on the Rights of the Child (Rachel Hodgkin and Peter Newell) 1998, page 237

[5] Article 4 of the Convention provides that “States parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, state parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.”

[6] Article 5 of the Convention provides a flexible definition of “family” and states that: “states parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present convention”.

[7] These include foster care, day care, schools and all institutional settings.

[8] UNICEF, Implementation handbook for the Convention on the Rights of the Child, op cit, page 242

[9] See Committee’s responses to Spain’s (Spain, IRCO, Add.28, paras 10 and 18) and United Kingdom’s (UK IRCO Add 34, paras 16 and 31) Initial Report- UNICEF Implementation handbook for the Convention on the Rights of the Child, op cit, page 243

[10] To mention a few, these countries include Zimbabwe, France, Poland, Jamaica, Canada, New Zealand, etc. See UNICEF Implementation Handbook for the Convention on the Rights of the Child for a comprehensive list, op cit, page 245.