Does the new Tanzanian Law of the Child Act, 2009 prohibit corporal punishment?

Section 13 of the Tanzanian Children Act provides that no person may subject a child to ‘torture or other cruel, inhuman punishment or degrading treatment including any cultural practice that dehumanizes or is injurious to the physical and mental well being of a child’. The section further removes the justification of reasonableness where in view of a child’s physical and mental condition, age or capacity to understand the purpose of the correction, the punishment in question can be deemed unreasonable. The section defines ‘dehumanizing’ as the intention of humiliating or lowering the dignity of the child.

 

This section contains all the ingredients of corporal punishment as set out in General Comment Number 8 of the Committee on the Rights of the Child. These are punishment, physical force, intention to cause pain or discomfort, and the possibility of belittling, humiliating, denigrating, threatening or ridiculing the child. To that extent, the section may be said to outlaw corporal punishment. The section does not make explicit reference to the term ‘corporal’ punishment though.

The section starts with a general provision prohibiting torture which accords with the traditional approach of international instruments dealing with the prohibition of torture, cruel and inhuman treatment. However reference to cultural practices is an addition to the conventional framing of the prohibition of torture. The proscription of cultural practices that dehumanize or injure children can be deemed to target practices emanating from private sources while the element of a practice that ‘dehumanizes’ covers the practice of corporal punishment.

The use of the words ‘correction of the child’ as in section 13(2) clearly points to an intention to regulate the manner of administering discipline on children, and by extension to regulate the administration of corporal punishment. In effect, the provision removes the common law defence of reasonable chastisement to the extent that it restricts the manner and degree of punishment. It further limits reasonableness by means of the age and capacity of the child to understand the purpose of the punishment.

The framing of section 13(2) however gives lee way for the administration of corporal punishment if it can be argued that such punishment is reasonable and of acceptable degree and that the child in question understands the purpose thereof. Determination of capacity to understand the purpose of punishment is of course a subjective process making this provision susceptible to multiple interpretations. The provision leaves final interpretation of what acceptable correction is to courts, a phenomenon that is likely to impede the pursuit of a total ban of corporal punishment.

It can therefore be concluded that the Act has gained mileage towards the ban of corporal punishment, though it is yet to achieve an absolute ban.