Workshop on Law Reform to prohibit corporal punishment · PDF fileECAf Africa Regional...

EAST AND CENTRAL AFRICA REGIONAL TECHNICAL WORKSHOP ON LAW EAST AND CENTRAL AFRICA REGIONAL TECHNICAL WORKSHOP ON LAW EAST AND CENTRAL AFRICA REGIONAL TECHNICAL WORKSHOP ON LAW EAST AND CENTRAL AFRICA REGIONAL TECHNICAL WORKSHOP ON LAW

REFORM TO PROHIBIT ALL CORPORAL PUNISHMENT REFORM TO PROHIBIT ALL CORPORAL PUNISHMENT REFORM TO PROHIBIT ALL CORPORAL PUNISHMENT REFORM TO PROHIBIT ALL CORPORAL PUNISHMENT –––– Nairobi, Kenya Nairobi, Kenya Nairobi, Kenya Nairobi, Kenya

DATE: DATE: DATE: DATE: 26262626THTHTHTH ----28282828THTHTHTH MAY 2009 MAY 2009 MAY 2009 MAY 2009

VENUE: VENUE: VENUE: VENUE: SAROVA SAROVA SAROVA SAROVA PANAFRICPANAFRICPANAFRICPANAFRIC HOTEL HOTEL HOTEL HOTEL, NAIROBI, KENYA, NAIROBI, KENYA, NAIROBI, KENYA, NAIROBI, KENYA

ECAf Africa Regional Technical Workshop on Law Reform to Prohibit all Corporal Punishment, 26th – 28th May 2009, Nairobi, Kenya

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ABBREVIATIONS AND ACRONYMS

ACERWC African Committee of Experts on the Rights and Welfare of the Child

AG Attorney General

ANPPCAN African Network for the Prevention and Protection against Child

Abuse and Neglect

AU African Union

CBO Community Based Organization

CCI Charitable Children Institution

CRC UN Convention on the Rights of the Child

CSO Civil Society Organization

DAC Day of the African Child

ECAf Eastern and Central Africa

ECOWAS Economic Community of West African States

GoSS Government of South Sudan

INGOs International Non-Governmental Organizations

KAACR Kenya Alliance for the Advancement of Children

MP Member of Parliament

NGO Non-Governmental Organization

NCCS National Council for Children Services

NCCW National Council for Children and Women

PHP Physical and Humiliating Punishment

Q & A Question and Answer

SC Save the Children

SCS Save the Children Sweden

UN United Nations

UNCRC United Nations Convention on the Rights of the Child

UNICEF United Nations Children Fund


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TABLE OF CONTENTS

ABRREVIATIONS AND ACRONYMS

EXECUTIVE SUMMARY 2

BACKGROUND 2

INTRODUCTIONS, WELCOMING REMARKS AND WORKSHOP AGENDA 4

1. SC GLOBAL UPDATE OF INITIATIVES TO PROHIBIT CORPORAL PUNISHMENT 5

2. (i) THE HUMAN RIGHTS IMPERATIVE TO PROHIBIT CORPORAL PUNISHMENT AND PROGRESS

TO DATE 7

(ii) PROGRESS TOWARDS PROHIBITION OF CORPORAL PUNISHMENT IN ECAF 9

3. THE ELEMENTS OF LEGAL REFORM 10

4. (i)WORKING WITH THE GOVERNMENT AND PARLIAMENT 11

(ii) THE USE F LEGAL ACTION AND REGIONAL AND INTERNATIONAL HUMAN RIGHTS

MECHANISMS 12

5. LEARNING FROM EXPERIENCE 13

6. COUNTERING FAITH-BASED OPPOSITION AND TURNING INTO SUPPORT 15

7. ANSWERING THE MOST COMMON ARGUMENTS AGAINST PROHIBITION 16

8. DEVELOPING AND PRESENTATION OF NATIONAL STRATEGIES 17

9. WORKING TOGETHER IN THE REGION, WITH OTHER REGIONAL NETWORKS AND ACROSS ALL

AFRICA 22

10. UNRESOLVED ISSUES 24

11. EVALUATION, FEEDBACK, CLOSURE

ANNEXES

(i) Evaluation summary

(ii) Workshop programme

(iii) List of participants

(iv) Human rights imperative to prohibit and eliminate all corporal punishment and global progress towards

achieving it

(v) Progress towards prohibition of all corporal punishment in East and Central Africa and Elsewhere

(vi) Achieving law reform to prohibit corporal punishment of children

(vii) The use legal action and regional and international human rights mechanisms

(viii) Key resources

(ix) Key resource persons


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EXECUTIVE SUMMARY

The East and Central Africa Regional Workshop on law reform to prohibit all corporal punishment, held on the 26th to 28th of May 2009 in Nairobi brought together 37 participants comprising of Save the Children Sweden program staff, partners from Civil Society Organizations (CSOs) and government ministries and departments from Ethiopia, Kenya, North Sudan, Rwanda, South Sudan, Tanzania and Uganda. The workshop focused on identifying legislative gaps in prohibiting corporal punishment so as to initiate, strategize and advocate for law reform to prohibit corporal punishment. The objectives of the workshop were as follows: (i) To establish the human rights imperative to prohibit all corporal punishment of children

including in the home; (ii) To increase knowledge about what law reform means and how to achieve it through

advocacy; and (iii) To develop national strategies for law reform which can be communicated clearly and

pursued following the workshop. The methodology of the workshop was participatory in nature, combining plenary presentations, experience sharing and intensive group work which facilitated information sharing and consensus building. Some of the outputs of the workshop included national strategies to end corporal punishment in the six countries represented, recommendations to strengthen the existing “East and Central African Regional Network on the UN study” which was re-named, “East and Central African Regional Network on Prohibiting Physical and other Humiliating Punishment” as well as the formation of a temporary secretariat for the network. In evaluating the workshop, participants said they found it relevant and informative (please see Annex Two for more information on evaluations). They also found the content simplified and methodology participatory hence facilitating information sharing. Most participants felt empowered to initiate law reform and respond confidently to different arguments on corporal punishment. They hoped that there would be effective follow-up mechanisms to implement the national strategies developed during the workshop.

BACKGROUND In February 2003, Professor Paulo Pinhero was appointed by the then United Nations Secretary General, Kofi Annan, as an independent expert to lead and conduct an in-depth study on violence against children, which was presented to the United Nations (UN) General Assembly in October 20061. Save the Children was a key player during the Study process; the organization produced countless reports and tools, and held several workshops with children, staff and stakeholders to raise awareness and disseminate the Study’s findings all over the world.

1 The full report and related documents can be found at http://www.violencestudy.org/


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The goal of the study was to promote the development of strategies by UN member states aiming at effectively preventing and combating all forms of violence against children. The study worked to consolidate the available information on different forms of violence against children across different settings, wherever it may take place. Physical punishment and all other forms of cruel or humiliating punishment was one of the clear concerns. Children themselves participated in consultations linked to the study repeatedly stressed that eliminating it is a critical issue for them. Save the Children’s experience and the UN Study process found that, in general, physical punishment and other forms of humiliating punishment have a very long history in most countries. The practices are hard to change, and often advocating prohibition and elimination touch on very sensitive and personal issues for parents and others. These practices are steeped in tradition. Article 19 of the United Nations Convention on the Rights of the Child (UNCRC), provides that States shall protect the child from all forms of maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for prevention of abuse and the treatment of victims. All States that have ratified the UNCRC have committed themselves to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence. In this regard, the UN Committee on the Rights of the Child, in charge of monitoring the implementation of the UNCRC, recommends the State Parties to prohibit by law all forms of violence, including every form of physical and other humiliating punishment in children’s homes and institutions, in schools and also in the family. As a result of the UN Study process, in 2008 Save the Children organised with the Global Initiative to End All Corporal Punishment of Children, a first global workshop on, “Prohibiting all Physical and Humiliating Punishment of Children: Achieving legal reforms, for all its members and partners”. The meeting brought together Save the Children child protection practitioners from both the development and the emergency fields, their partners from Governments and civil society organizations. The workshop built the capacity of participants on how to campaign for prohibition and also about building and being part of regional and global campaign. In the meantime, dialogue on prohibition of corporal punishment matters has increased amongst Save the Children members in the field, Governments, UN bodies and other international non-governmental organizations, and civil society organizations, and the need for further collaboration on child protection issues has also emerged at that level. Save the Children’s work on prohibiting corporal punishment has been acknowledged but new challenges continue to arise especially at regional and country level.


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DAY 1: TUESDAY 26TH MAY 2009

INTRODUCTIONS By Tina Ojuka – Regional Programme Officer, Save the Children Sweden

Tina thanked the participants and facilitators for attending the workshop and after having them introduce themselves, she then invited Hans Ridemark, the Regional Director, Save the Children Sweden to welcome the participants.

WELCOME REMARKS By Hans Ridemark - East and Central African Regional Director, Save the Children Sweden

Hans began his remarks by expressing delight in being part of the joint workshop that brought together the Global Initiative, Churches Network and representatives from Eastern and Western African countries. He further emphasized that it was a technical workshop, that would involve sharing of tools and lessons learnt on how Save the Children approaches the work towards ending corporal punishment. Participants were informed of Save the Children’s new approach of uniting in the countries where it operates. The implication is that all the Save the Children Alliance bodies would unite at country level so as to have a common approach and hence a stronger voice for children. He concluded his remarks by welcoming the participants and wishing them a fruitful workshop. Remarks by Denise Stuckenbruck, Regional Programme Manager, Save the Children Sweden, Denise Stuckenbruck, who has been instrumental in facilitating the legal ban on corporal punishment in three Latin American countries, gave a brief of the work that she was involved in. She said that talking to children and parents about corporal punishment made her understand the extent of the issue and thereby realized the relevance of the topic, as one that concerns everyone. She urged participants to reflect on it from a personal level, acknowledge that it exists, and imagine what it means when every child experiences violence. This becomes an emergency for children that deserves to be addressed with urgency. Participants were asked to move from having a technical workshop to having real experiences capable of transforming them to mobilize all necessary resources to deal with it. Children should be considered as human beings entitled to rights, and the need to be respected and protected. To deal appropriately with corporal punishment, tools must be used. She emphasized the need to use legislation as a tool to achieve the goal. She acknowledged that as much as many laws do not work as they should, legislative protection is paramount in dealing with any issue.


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WORKSHOP AGENDA

By Tina Ojuka- Regional Programme Officer, Save the Children Sweden Participants were briefly taken through the workshop agenda and workshop objectives.

Workshop Objectives

� To establish the human rights imperative to prohibit all corporal punishment of children, including in the home

� To increase knowledge about what law reform means and how to achieve it through advocacy � To develop national strategies for law reform which can be communicated clearly and pursued following the workshop

SESSION 1: SC GLOBAL UPDATE OF INITIATIVES TO PROHIBIT CORPORAL

PUNISHMENT By Mali Nilsson- Global Advisor on Child Protection, Save the Children Sweden

Mali Nilsson, who has been very instrumental in advocacy around the prohibition of corporal punishment, focused her presentation on the progress made at the global level. Mali began her presentation by introducing corporal punishment as an emerging issue that every child experiences; and is not only physical, but degrading and humiliating as well. Moreover, it violates the rights of the child and her/his human dignity. It also sends out the message that violence is an appropriate method of resolution thus making it appear to be acceptable behaviour. The global campaign against Corporal Punishment initiated in 2001, is headed by a task group which is chaired by Save the Children Sweden. Corporal punishment is a priority area that Save the Children Sweden has invested heavily on, in all the regions where it operates in. The vision of the campaign is the right of every child to a life free from violence, and aims at ending all corporal punishment of children. To achieve this, Save the Children focuses on sensitization and training, to shift the practices of duty bearers including parents, government, civil society and politicians, towards non-use of corporal punishment. It also focuses on initiating positive teaching practices and parenting/child care. This is in addition to advocating for legal reform and changing social perceptions towards the fact that corporal punishment is a form of violence against children. Presently there are 24 countries in the world that have banned corporal punishment. There have been three (3) global workshops on child protection, held in Cairo, Stockholm and Bangkok, and two regional workshops in the SCS regions of South East Asia and the Pacific, and now the East and Central Africa region. Mali then made a presentation on regional efforts towards prohibiting corporal punishment which are as follows: Region Progress

Southern Africa

� Existence of a regional network that with members from Botswana, Lesotho, Mauritius, Mozambique, South Africa, Swaziland and Zambia.

� Formation of a South African working group advocating for total ban in all the


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countries. � The South African council of churches which supports the ban on corporal punishment

� Research on corporal punishment has been conducted in Mozambique and South Africa.

� Proposals in South Africa and Zambia, for constitutional banning of corporal punishment in homes.

� Development of a curriculum for positive punishment as part of the teachers training curriculum

West Africa � The focus has been on alternatives to corporal punishment. A manual focusing on social norms to end physical and humiliating punishment (PHP) has been developed and validated by many West African countries. The countries are now working with the teachers’ unions to promote the manual.

� Nation wide campaigns on alternatives to punishment in Cote d’Ivoire among other countries.

� Plans to work with the National Coalition of Child Rights to advocate for law prohibiting corporal punishment in homes.

� Formation of child protection committees comprising of members of local communities.

� Regionally, Economic Community of West African States (ECOWAS) has been approached and indicated willingness to combat PHP. A meeting with ECOWAS is scheduled to advocate for regional laws corporal punishment. West Africa has been identified as pilot region for the UN Study on Violence against Children. The process of material production involving children who have been very resourceful has also been initiated.

� Code of conduct for teachers has been adopted by some countries with plans to extend it to other West African countries.

Latin America

� Corporal punishment has been prohibited in three (3) countries. � Brazil and Peru are also headed towards law reform to prohibit corporal punishment.

� Active mobilization of the civil society in Nicaragua and Argentina. South East Asia Pacific

� A total of 19 countries participated in a regional workshop, where 15 work plans were developed, with plans by Vietnam, Philippines and Mongolia to legislate the prohibition of corporal punishment.

� Materials targeting both children and adults have been produced to promote the prohibition of corporal punishment. These include a Q & A for children and a Training guide on child rearing without violence.

Bangladesh � The government has addressed and acknowledged the need to ban corporal punishment in schools. A Code of conduct and hand book for teachers have since been developed.

Afghanistan � Corporal punishment has been recognized as a form of violence, and a campaign for violence free schools has been initiated.

Middle East � Lebanon has the highest level of advocacy with plans to engage the Arab League. Europe � Nineteen countries with a total ban on corporal punishment.

� UK and Poland do not have laws prohibiting corporal punishment. There is a national campaign in Switzerland to promote the prohibition of corporal punishment in all settings.


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� This year marks the 30th anniversary of the Swedish ban, and a book on the impact of the national ban will be published.

To ensure credibility and accountability, the need for evidence-based advocacy was emphasized. Moreover, creativity is essential in advocacy. Examples of creative advocacy include the Brazil and Afghanistan campaigns, where mobile telephone cards and matchboxes were used to spread the message. Sweden was used as an example to assess the impact of prohibiting corporal punishment, where the first ten years after the ban on corporal, a 50% increase in reporting was registered, and a 240% increase in reporting in consequent years. This indicates how legislation contributes to increased awareness of corporal punishment as a violation of children’s rights resulting in increased reporting.

SESSION 2: THE HUMAN RIGHTS IMPERATIVE TO PROHIBIT CORPORAL PUNISHMENT AND PROGRESS TO DATE

By Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment

The session aimed at providing a critical analysis of the human rights imperative to prohibit corporal punishment. This was done by assessing the origins, rationale, and the evolving perceptions and attitudes towards corporal punishment. Below is an overview of the presentation. The presentation began by examining the origin of corporal punishment, noting that it has always existed in human societies; based on evidence in the original hunter gathering communities, where child rearing was widely shared. During this period pain was used as a form of control for children. Comparably, in ancient Roman laws, fathers had a right to kill their children. In 365 AD this right was replaced with the right to use violence for punishment, and later developed into the current English Law that provides for the right to reasonable chastisement or punishment. Colonialism further perpetrated and promoted the use violence, by enforcing laws promoting “reasonable” violence of children. The culture of corporal punishment is a global problem, which is gaining visibility as a human rights violation, hence accelerated efforts to eliminate its use. These efforts are evidently bearing fruit considering the progress in Kenya and other countries. However, there is still need to accelerate banning of corporal punishment, by taking up all opportunities to advocate for legal reforms to prohibit the practice, and to hold governments accountable. The session then focused on why ending all forms of corporal punishment is important. This was looked at in view of the fact that some forms of corporal punishment have been legally accepted, and for a long period, even child rights activists have put corporal punishment in two separate boxes: of physical punishment and child abuse; forgetting that even the violence that harms is commonly perpetrated in the context of punishment or discipline. The acceptability of some forms of violence makes other forms of exploitation and violence including sexual exploitation and child trafficking easier. This is brought about by the notion that breaching a child’s human dignity is acceptable, normal and sometimes suggested to be in their best interests. It is also indicative of the low status of children in society. Challenging all forms of corporal punishment, however “light”, aims at changing perceptions so that children are respected as rights holders just like all other humans.


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The fact that corporal punishment has been experienced by most people is as a major reason as to why it is difficult for people to think humanely and logically about it. This coupled with traditional pressures, and religious beliefs, makes it even more challenging to address. Progress in prohibiting corporal punishment includes the acceptance by States of the UNCRC, which sees children as holders of rights. Additionally, the UNCRC Committee has been examining country progress reports since 1993, and has since recommended prohibition of corporal punishment in all countries. In 2006, the committee issued its first statement against violence of children, making a firm stand against corporal punishment, and other forms of degrading and cruel forms of punishment. Moreover, the committee does not equate prohibiting corporal punishment with prohibiting the use of reasonable force or discipline. More progress includes the formation of human rights mechanisms such as the (Africa Committee of Experts on the Rights and Welfare of the Child) ACERWC, which recently made a commitment to obligate states to protect children The UN study on violence against children led by Professor Pinhero has also made notable progress in prohibiting corporal punishment. In addition to being the first comprehensive global review of violence against children, children played a vital role in the study’s consultations, which has had a profound impact, including recommendations for states to prohibit all forms of violence. STEPS IN PROHIBITING CORPORAL PUNISHMENT:

Peter facilitated this session by focusing on the basics of prohibiting corporal punishment, emphasizing on the importance of law reform and attitude change towards violence against children. The first step should be to recognize the right of every child to be protected from violence, followed by explicit law and sustainable public education, prohibiting corporal punishment and promoting positive discipline methods. Sectoral, family, education laws should also contain explicit prohibition. In cases where the law provides for corporal punishment, measures should be undertaken to repeal such authorizations. The criminal law on assault should protect children as much as it protects adults, even if disguised as punishment. Although law reform is necessary, it is not enough. Unless law exists, public education to change attitudes and perceptions may not be useful. The focus should be on the rule of law and the obligation of states to legislate, and put in place measures to protect children from violence. However, even then the best interests of the child should be taken into account. Building alliances including different professionals, parents, human rights and faith groups, is also a very effective strategy for law reform. These alliances can support government with public education. Children’s meaningful participation should be upheld as much as possible. PART 2: PROGRESS TOWARDS PROHIBITION OF ALL CORPORAL PUNISHMENT

IN EAST AND CENTRAL AFRICA


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By Dr. Sharon Owen, Research Coordinator, and Global Initiative to End All Corporal Punishment of Children

This session focused on the urgency of the situation by analyzing progress made toward prohibiting corporal punishment at a global level and also narrowing down to Africa. Prohibition of corporal punishment was looked at in all settings including the home, school, penal system for disciplinary and sentencing purposes and in alternative care settings.

At the global level, 24 states have prohibited corporal punishment of children in all settings. Many more countries have prohibited corporal punishment in schools, as a sentence of the courts, and as a disciplinary measure in penal institutions. Very few countries have prohibited corporal punishment in all forms of alternative care.

Unfortunately, in Africa no state has prohibited corporal punishment in the home. A number of states have prohibited corporal punishment in schools, as a sentence of the courts, or as a disciplinary measure in penal institutions. However, very few have prohibited corporal punishment in all forms of alternative care.

As much as progress made towards prohibiting corporal punishment should be appreciated, focus should be concentrated on countries that have not achieved law reform. The situation is still very grim, as only 3.2% of the world’s children are legally protected from being hit in the homes. In East and Central Africa, 100% of children live in places where they can be lawfully hit and assaulted by parents and other adults. The situation indicates the need to advocate for the prohibition of corporal punishment in all settings with urgency.

Plenary comments and recommendations on progress towards prohibiting corporal punishment

� Since the rule of law sets standards, there is urgent need for removal of laws that are punitive while replacing them with appropriate laws.

� Law reform requires incorporating strategies that go beyond developing legislation. It requires conversing at personal, community, national and global levels, using available resources, and sharing of lessons learnt by countries that have successfully achieved law reform on corporal punishment.

� Corporal punishment actually includes other forms of physical harm such as kneeling for long hours and harmful cultural practices.

� Unless there is legislation, a code of conduct is not adequate for legal protection. A code of conduct for children works if negotiated for with children, schools and teachers. It should also offer protection from bullying. However, it is also important to realize that children learn violence from adults.

� In addition to having the law in place and disseminating it, systems should be in place to provide an avenue for children to report privately, as well as provide remedy after reporting. Children should be aware of the existence of such systems and be assured of their protection should they report such incidences.

SESSION 3: THE ELEMENTS OF LEGAL REFORM By Sharon Owen, Research Coordinator, Global Initiative to End all Corporal punishment.


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The presentation highlighted on three main elements of achieving legal reform which included, reviewing the law, reforming law and enacting explicit prohibition.

1. Reviewing the law

Reviewing the law is necessary for establishing if corporal punishment has been prohibited in all settings. This requires analyzing laws and regulations related to schools and all settings around children including state run, private, health, psychiatric and mental health institutions, situations of child labor, alternative care settings and different kinds of residential homes. The process also involves identifying settings that require licensing and those that do not, such as some religious based institution and foster care homes. This process should take into cognizance that children in all settings have the right to protection. Any significant challenges to corporal punishment in those settings, including parliamentary discussions and legal challenges in courts should form part of the review. In reviewing the law, it is important to note that prohibition has to be legally binding, and therefore reports and circulars issued by governments do not count for prohibition. It is also important to note that there may be child protection laws or constitutions prohibiting cruel, inhuman or degrading treatment, that do not necessarily protect children from corporal punishment In law review it is vital to look for:

� Legal defenses including common law which allow disciplinary corporal punishment. � Authorizing laws which allow specific person such as parents and teachers, to use corporal punishment, and/or quantify the extent to which this should be carried out.

� Silent laws which do not mention corporal punishment, and therefore do not prohibit it.

2. Reforming the Law

Reforming the law aims at ensuring that the legislation prohibits corporal punishment. After reviewing the law, a draft may be prepared, with concrete proposals for reforms. There should be a relationship between the drafters and the NGOs for purposes of promoting and monitoring the law. The basic elements of law reform on corporal punishment include:

� Removing all defenses by having a list of all legal clauses and defenses to be repealed � Once repealed, the criminal law applies to children as to anyone else

3. Enacting explicit prohibition:

This involves: � Amending existing laws or enacting new ones. This could include new prohibitory laws, in cases where there are no defenses to be repealed. This can be done by inserting a phrase on a general law on child rights. The law should seal all legal loopholes that could authorize corporal punishment.

� Ensuring that the prohibition does not use compromising or ambiguous language. It is therefore important to use the words corporal punishment and define it clearly. For instance, if the prohibition is against corporal punishment that causes harm, the implication is that some form of corporal punishment does not cause any harm and is therefore permissible.


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Plenary Comments and Main Recommendations on Elements of Law Reform

� There was a concern regarding the consequences of only removing defenses on corporal punishment and not having an explicit prohibition. It was emphasized that there is the need to work towards having an explicit prohibition in legislation as this would leave no room for misinterpretation.

� In initiating law reform, it is important to have strategies and identify opportunities for working with the government. Law reform is not possible until it is raised with government and parliamentarians. The process should involve identifying all sections of governments responsible for legislation on corporal punishment. Being strategic in law reform requires taking advantage of opportunities. For example, during India’s general election, candidates with child friendly manifestos were voted for and held accountable on the provisions after the elections.

� Initiating law reform could be done by the government or civil society, depending on who realizes the need first. In some countries, the governments initiated the process. For some, in the process of realizing equal rights for women, they also began to advance the rights of children. Some governments are also keen on following up and researching on issues of corporal punishment. Other governments have taken the initiative to publicize the law. However, in many countries, it is not a priority for the government, requiring action by other actors. In most countries, recently, it has been the initiative of NGOs and human rights commissions. Presently, there are many international human rights instruments that civil society can use, in an effort to lobby governments to realize the agenda of law reform.

� Whereas it is useful to engage legal advisors in law reform, and part of the process includes identifying legal practitioners that are committed to the process, CSOs should not shy off from law reform. NGOs should use their strategic alliances to approach governments.

SESSION 4: WORKING WITH THE GOVERNMENT AND PARLIAMENT By Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment

The following essential steps were highlighted as necessary steps to take when engaging with the government and parliament on law reform: 1. Write a letter to the most suited ministers and senior government officials requesting for a meeting. The letter could include the recommendations of the CRC committee, the UN study on violence against children and research references on the topic. It should also indicate how the existing law encourages corporal punishment, and also give recommendations on how to deal with such legal provisions. This should be followed up with telephone calls.

2. Lobby parliament early in the process so as to garner as much support as possible. This involves identifying as many members of parliament as possible. When given the opportunity, ask parliamentarians questions about the law on corporal punishment, statistics, and steps that the government is taking to deal with recommendation on corporal punishment.

3. Meet with specialist committees of parliament including those of education, health and human rights for them to analyze the issues. Some committees can hold formal enquiries to give evidence.

4. Approach the political parties. It is important to be tactful, and avoid approaches that will provoke reaction by opposers.

Plenary comments and recommendations on working with the Government


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� When reaching out to policy makers, there is need to identify their link to the grassroots. Advocates from the constituencies can start lobbying their members of parliament to support the campaign against corporal punishment.

� CSOs should strategize on lobbying governments to improve legislation on corporal punishment even with limited resources available.

� It should be remembered that changing of attitudes is a long term need even with legislation prohibiting corporal punishment in place. The media is a useful advocacy tool.

� CSOs can take an active role in popularizing dormant laws by putting in place strategies, to ensure that the law is not just in place, but is widely disseminated. The strategies should involve defining the role of civil society in popularizing legislation, using different dissemination avenues, including making child friendly versions of the law.

THE USE OF LEGAL ACTION AND REGIONAL AND INTERNATIONAL HUMAN RIGHTS MECHANISMS

By Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment

The session focused on the use of regional and international instruments as a basis for prohibiting corporal punishment. When governments fail to introduce law reform or actively oppose it, then regional and international human rights treaties can be used to obligate them to realize children’s rights. A government that ratifies treaties/ agreements accedes to the fact that it is committed to improving its domestic legislation accordingly.

Although there are no formal measures to compel States to implement the obligations set out by the international treaties, pressure is usually placed upon them through the relevant committees. CSOs can also act as a watchdog by submitting alternative reports to the relevant international and regional committees and monitoring bodies giving and account of actions that have taken or not taken place.

However, the most effective pressure emanates from making full use of the UNCRC, as a legal instrument. When states ratify the UNCRC, they take on legal obligations to domesticate and implement it fully including prohibiting all corporal punishment of children, by law.

States have different ways of treating international instruments when they ratify them. In some states, on ratification, the instrument is automatically incorporated into national domestic law. It can therefore be used in courts to claim rights guaranteed by the instrument. In other states, domestication involves a process where review of existing national law and/or introduction of new legislation is necessary.

Some countries have national legal provisions that are in contradiction with domestic laws. These national legal provisions can also be used to challenge corporal punishment in all or some settings, in addition to using the international instruments which the state has ratified.

Expert legal opinion is an extremely useful tool in cases where progress towards prohibition is not fruitful, or is being resisted. This should be provided by a lawyer who believes in children’s rights, and is fully supportive of the human rights imperative to prohibit all corporal punishment of children in law, Expert legal opinion is essential in challenging the legality of corporal punishment in the courts.

Should redress through court fail, then a foundation exists for using international and/or regional human rights mechanisms. International and regional complaints/communications mechanisms provide a means to appeal to, and put pressure on national governments. These mechanisms require exhausting


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domestic remedies, and an individual to present a case. In Africa, the ACERWC can receive individual complaints. The UNCRC is the only international human rights treaty without an individual complaints procedure. There is a campaign to lobby for the development of a complaints procedure, by drafting an optional protocol to the UNCRC.

SESSION 5: LEARNING FROM EXPERIENCE

Ethiopia, Kenya, North and South Sudan, Rwanda and Tanzania This session provided an opportunity for the countries represented to learn from each other on progress made through lobbying governments and parliaments to prohibit corporal punishment, as well as challenges faced. Country Experience

Ethiopia Progress

� Studies to investigate the effects of corporal punishment have been conducted � The positive child discipline manual has been in use since 2007 in collaboration with ministry of Education and Ministry of Women

� Capacity building at national and regional levels to promote positive discipline targeting teachers and other caregivers has been ongoing.

� Child participation has been a key component of the process and has contributed largely to reporting violence against children

� There has been increased reporting channels through support centers providing free hotlines and community based support systems to report and support victims of violence.

Challenges

� The penal code and family law provide for reasonable punishment � New legislation limiting NGOs involvement in advocacy.

Kenya Progress

� The campaign on corporal punishment began in 2000 and picked momentum after the enactment of the Children Act, and after the government banned the use of corporal punishment.

� Various initiatives and campaigns for public education and awareness have been taking place

� Trainings on positive discipline with key actors and for the last two years involving schools, charitable children’s institutions, line ministries and government departments have been taking place

� The issues of corporal punishment have been mainstreamed in all the programs run. � Publications on discipline and corporal punishment produced by CSOs such as KAACR Save the Children and ANPPCAN have been produced and disseminated.

� There has been close collaboration between civil society and the National Council for Children Services, the Department of Children Services in the Ministry of Gender, Children and Social Development and with the Ministry of Education, through the Directorate of Basic Education and Ministry of Labor and Human Resources, through the division of child labor and the local government. This has enhanced efforts in lobbying for law reform.

� The Children Act is currently under review, to ensure that its provisions adequately


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promote and protect the rights of children. One of the issues under review is expunging of the section that provides for corporal punishment. There are also many sections in the Children Act that have loop holes and work is underway in improving these sections. The Domestic Violence (Family Protection) Bill has provisions on the prohibition of physical violence at the family level.

� CSOs actively lobbied for the incorporation of children issues in the draft constitution.

Challenges

� In 2008 there was an outcry by the public including legislators, parents, teachers and children to re-introduce corporal punishment due to unrest in schools that took place last year. Civil society has been lobbying to ensure that corporal punishment is not re-introduced as a means of instilling discipline in schools.

North Sudan

� Collaboration between the Ministries of Education, Finance and Justice, civil society and professionals to promote and protect the rights of children, has increased. Doctors are leading in advocacy, and involving activists in prohibiting FGM.

� An MOU is in place between the NCCW, UNICEF, Ministry of Justice and police on child protection.

� Media campaigns dealing with violence against children especially on FGM are ongoing.

� A hotline is in place to enhance child protection. The hotline is in Khartoum and is located at a police unit. The line is open to report cases of violence and abuse perpetrated against women and children, and is toll free. When a case is reported, the police conduct rescues, while social workers and doctors conduct social and medical investigations respectively.

South Sudan

� Linkage between CSO and government which has contributed to the enactment of a Child Act.

� The Child Act states that corporal punishment is prohibited in schools and in the community

� The Ministry of Education is being lobbied to develop a code of conduct for teachers. � Trainings on the Child Act are to take place

Rwanda � Rwanda has several laws geared towards promoting respect for human rights especially after the dramatic experience of the 1994 genocide. Most of these laws are on gender equality and gender based violence, genocidal ideology, child labor, succession, family, child protection.

Challenges:

� Provisions are not very specific in terms of prohibition of corporal punishment. This therefore gives room for the perpetuation of corporal punishment in schools and in homes.

Tanzania � A draft Child Bill is in place which seeks to provide for the prohibition of corporal punishment

DAY 2: WEDNESDAY 27TH MAY 2009


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SESSION 6: COUNTERING FAITH-BASED OPPOSITION AND TURNING INTO SUPPORT

By Chris Dodd, Coordinator of Churches’ Network for Non-violence The session aimed at identifying ways of dealing with significant opposition to legal reform from faith based groups and address how religious beliefs and values can be harnessed to counter corporal punishment. The most effective approaches to countering opposition towards prohibition of corporal punishment from religious groups lies in laying emphasis on the values and beliefs that promote love. This in turn promotes the notion of non-violence and the position of children as sacred. These values together with the golden rule, which is treating others only in the way that you are willing to be treated in the same situation are an important starting point. The golden rule lays emphasis on knowing what effect peoples’ actions have on the lives of others and treating all human beings as equal. A number of scholars and religious leaders worldwide are now advocating for the protection of children from violence and in a number of cases urging the public to emulate the example of respected religious leaders such as Jesus. A community development approach involving religious leaders as partners in the campaign against corporal punishment is the best approach. Religious leaders are highly respected in their communities and would be instrumental in changing attitudes towards the non use of corporal punishment of children as a form of discipline. Some religious leaders have translated the UNCRC to fit into religious teachings and work on reclaiming a violence-free society. It is also important to explore theological grounds to promote the rights of the child and use multi-religious leaderships to promote dialogue. Religion cannot address the issue of violence with credibility unless it addresses the issue of violence against children. Comments and Main Recommendations on Countering Faith Based Opposition and Turning it

into Support

� Religious writings promoting non-violence and the position of children as important members of society should be used as advocacy tools

� When advocating for law reform to prohibit corporal punishment it is important to anticipate and be prepared for opposition from some organized religious groups. Dealing with organized religious groups requires personal conviction and evidence-based arguments. In any advocacy, it is important not to underestimate religious leaders as they are very influential.

� It is important to use existing resources, and contextualize them rather than duplicate what exists. Save the Children has developed many materials that can be used for advocacy to prohibit corporal punishment, even among religious leaders. It is also important to utilize existing resources promoting social norms against corporal punishment in order to target communities and religious leaders.

SESSION 7: ANSWERING THE MOST COMMON ARGUMENTS AGAINST PROHIBITION

Participatory Session involving all Participants and facilitators


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The session focused on the most common arguments used against prohibition of corporal punishment. It aimed at identifying and responding to challenging opinions held by children, parents, and people working with children, communities and policy makers. The arguments were presented by participants. A panel that comprised of both facilitators and selected participants endeavored to respond to the arguments. Argument 1: If the Bible says “Spare the rod, spoil the child”, how do you justify the non use of corporal punishment as a form of discipline? Response: There is need to read the Bible wholistically. The Bible lays emphasis on love being the greatest gift of all. This could be seen in the way Jesus had great compassion, was forgiving and loved children. To counter this argument, it is necessary to emphasize that the greatest of the laws is love, and love is non-violent. Argument 2: Some children argue that they need some level of corporal punishment to succeed. Response: To counter this argument it is important to acknowledge that children respect and reflect the view, attitudes and opinions of their parents and caregivers. However, that does not justify the use of corporal punishment. In such cases, it is important to use equal rights arguments. It is also important to argue using numbers, and point out that many children who behave well are not being subjected to corporal punishment. It is important to sensitize children by informing them that corporal punishment does not result in self discipline. If any thing, it begets more violence as children become violent to their peers, to themselves and to their children as adults. Argument 3: Corporal punishment is necessary to instill discipline Response: It is important for adults to be sensitized so that they can address the root causes of misbehavior among children and how to discipline them in a positive way instead. Argument 4: There is a difference between punishment that causes abuse and torture, and punishment that corrects. Response: Punishment should not be used to physically and emotionally harm a child, but should instead be used to correct behaviour. Argument 5: What justification do governments have in intervening to protect children from corporal punishment within the homes? Tackling: If governments often intervene to protect the rights of women even within the homes, then children who are more vulnerable should be protected too. Human rights are universal and should be accorded to children as well. Argument 6: The only way that young children can correct bad behavior is through the use of corporal punishment: Response: Children have the capacity to understand right from wrong if given a chance to through positive methods and not necessarily through corporal punishment. Argument 7: The introduction of free primary education in Kenya has contributed to high levels of enrollment in schools. Teachers have been overwhelmed by this and do not have neither the knowledge nor patience in instilling other forms of punishment apart from corporal punishment. Response: This is paramount to blaming children for the government’s problems, and is not justifiable. Corporal punishment and schooling circumstances should be separated. The latter should not be used


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as a basis for the practice whatsoever. Furthermore, it is evident that corporal punishment is harmful to children. Research on corporal punishment indicates that children experience negative emotions as a result of corporal punishment, which are detrimental to learning. Research has also proven that children will respond well to positive stimulus and negatively to negative stimulus. Alternatives to corporal punishment should be used. However, before introducing these alternatives it is important to change people’s mindsets and attitudes discipline of children. However, this is not an immediate process. One approach to achieving this is by integrating life skills in the school curriculum, and teaching on values that enhance their ability to deal with others in society. Life skills training should also target adults, as children learn from them. These should be accompanied by discussions on what it means for them to use violence as it allows them to talk and process these emotions. Involvement of children should be promoted so that they can have a forum to discuss these issues. Argument 7: After conducting research on schools that have banned corporal punishment, there is no indication of improved performance compared to those that have not banned corporal punishment. Response: It is dangerous to link corporal punishment with school performance. Ending corporal punishment should be regarded as every child’s right to be protected from violence just like adults. Additionally, banning corporal punishment does not guarantee improved performance, because every child is a unique individual with unique abilities. Performance is determined by these unique abilities coupled with influences from their environment, which are equally unique to every child. Argument 8: In a society where corporal punishment is deep rooted, it is perceived as a western concept. Response: Corporal punishment is a universal problem. The campaign to end corporal punishment is a universal one, as the issue affects both developed and developing countries. For instance the laws of the UK and those of many southern parts of the United States of America provide for the use of corporal punishment as a form of discipline.

DAY 3: THURSDAY 28TH MAY 2009 SESSION 10: DEVELOPING AND PRESENTATION OF NATIONAL STRATEGIES

South and North Sudan, Kenya, Uganda, Rwanda and Tanzania Participants were grouped as per the countries that they were representing and asked to develop national strategies to prohibit corporal punishment which they shared at plenary. The following is a summary of the countries strategies: South Sudan National Strategy The Child Act of South Sudan (Section 21) explicitly prohibits the use of corporal punishment in institutions and communities. However, the term “communities” is subject to interpretation and hence the need for an explicit provision regarding “all settings”. To enforce these laws it is necessary to develop a strategy on the implementation of the Child Act 2008. The government is currently being lobbied to support the Act’s implementation. Efforts will be made to use existing bodies such as relevant government ministries, parliamentary lobby groups, community groups to promote the enforcement of the Act. Efforts are being made to simplify the Act into a reader friendly version. Training manuals, codes of conduct for teachers and production of IEC materials on the subject will be produced.


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Lobbying of government will be conducted so that customary and statutory laws can be harmonized. The upcoming elections will be used as an opportunity to target political parties/individuals to advocate for the prohibition of corporal punishment in all settings. North Sudan National Strategy In North Sudan, the Child Bill does not explicitly prohibit corporal punishment. The law is silent on prohibiting teachers and parents from using corporal punishment. However, the Criminal Law provides that corporal punishment can be used on children who have offended the law in the presence of parents/guardians. The Child Bill seeks to prohibit the use of corporal punishment as a sentence. Specific members of parliament will be targeted so that they can initiate discussions on prohibition in parliament and lobby relevant bodies to influence the process. A network consisting of CSOs, religious bodies and children’s representative will be formed in order to engage in this. Opportunities such as the elections will be used to target political parties/individuals. Workshops will be held with parliamentary committees dealing with legislation, human rights, women and children rights as well as with government officials representing the ministries of health, education, justice and social welfare among others. The main challenge in the law reform process is the long duration and tedious procedures involved in amending a law or enacting a bill. This is also contributed to by the fact that there is limited knowledge on the relevance of certain legislation by key stakeholders. Additionally, the proposals to prohibit corporal punishment in all settings is likely to be subject to a lot of opposition especially from the religious leaders and parents/ guardians. There is therefore the need to raise funds so that awareness and sensitization campaigns can take place.

Kenya National Strategy The draft constitution of Kenya prohibits the use of corporal punishment on children in all settings. The first step in the Kenyan national law reform strategy is to constitute a national team on prohibition of corporal punishment of children comprising of Government ministries and departments, specifically, the National Council of Children Services, Ministry of Education, Department of Children Services among others, CSOs including religious bodies. The team once constituted will prepare terms of reference and clear action plans which will guide its work on prohibition of corporal punishment. Key areas will include developing, planning, implementing and monitoring a national strategy on prohibition of corporal punishment of children in Kenya; resource mobilization, lobbying and advocacy, capacity building, strategic partnerships and engaging key stakeholders in the development of policies and legislation on prohibition of corporal punishment. The team will analyze the existing laws on corporal punishment and establish ways of working with key bodies such as the Kenya Law Reform Commission and the Attorney General’s office on harmonizing and reviewing them.


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The current Constitution review process presents a good opportunity for having total prohibition of corporal punishment in legislative. The review of Children Act also presents a good opportunity. Existing bodies such as the Parliamentary Caucus on children, the Juvenile Justice Network (JJN), and the NGO CRC Committee will be used as bodies for advocacy. Other opportunities include the development of the draft national policy on children and the national policy on human rights, which support the prohibition of violence against children. Celebration days such as the No Kiboko Day and the day of the African child will be used to general public discussions on legal reform to prohibit of corporal punishment. The lobby process will involve key parliament and government officials, child and human rights organizations and institutions, religious traditional leaders and FBOs and influential professionals and personalities. The law reform process can be addressed through the introduction of a miscellaneous amendment Bill which amends several Acts at a time, by generating a Bill through Parliament or by incorporating the prohibition of corporal punishment in the constitution. This can be done through Kenya Law Reform, Private members Bill or as through the A.G (government Bill). The main challenges likely to be faced by the process include attitudes on corporal punishment and failure to recognize children as right holders. Uganda National Strategy The use of corporal punishment is prohibited as a penal sentence under Section 24 of the Constitution and Section 94(9) of the Children Act. However it is not expressly prohibited in other settings. The Children’s Act and Employment Act give general provisions on protection from abuse and neglect but are not explicit on corporal punishment. A Supreme Court ruling was made against corporal punishment in schools. The Uganda national strategy includes holding a similar workshop on law reform at national level and developing clear action plans. A legislative opinion/ review will then be conducted to assess the provisions on corporal punishment in different statutes. This process will involve Save the Children in Uganda and its partners. A committee comprising of like minded organizations will have been formed to work towards advocating for the inclusion of explicit provisions on prohibition of corporal punishment in laws. Such advocacy will include meeting the relevant parliamentary committees, engaging the media, developing sensitization materials and promoting children’s meaningful participation in the entire process. The child protection committees, child rights clubs and teachers at Sub county and districts levels will be sensitized and trained on positive discipline methods. Rwanda Law Reform Strategy In Rwanda, the law reform process will begin by conducting a stakeholder’s workshop aimed at sensitizing key stakeholders on the importance of prohibition of the use of corporal punishment in legislation. This will lead to the review of the current legislation, and drafting a law reform proposal which will target women parliamentarian forum, line ministries, CSOs and human rights organizations among others.


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The next step will involve advocating that a presentation of the proposal to cabinet be conducted by the Ministry of Justice, political parties, ministry of gender and family promotion, and women’s parliamentarian forum. This will be followed by drafting the bill to prohibit corporal punishment, which will then be tabled in parliament for adoption. The law reform process will run concurrently with sensitization of the public. The upcoming elections will be used as an opportunity to lobby key aspirants to support the prohibition of corporal punishment in legislation. Tanzania National Strategy The use of corporal punishment in schools is legalized by the Education Act in the Tanzania mainland and Island of Zanzibar. The regulation cited as the National Education (Corporal Punishment) Regulations, 1988 lists the type of behavior exhibited by students that warrant corporal punishment. The regulations further provide that the head teacher or any other person authorized by her/him can administer corporal punishment on a student. The upcoming election period presents a good opportunity for advocacy towards prohibition of corporal punishment. There is also increased pressure from the CRC committee on Tanzania to enact laws prohibiting corporal punishment. Discussions on the subject will be generated during the upcoming child rights seminar for parliamentarians scheduled for June 2009 and also through the established child protection network in Zanzibar. Ethiopia National Strategy The Constitution of Ethiopia provides for the protection of children from corporal and cruel or inhuman treatment in schools and other institutions responsible for the care of children. However, there is no explicit provision prohibiting corporal punishment at home. The civil code provides for minor physical punishment to enhance learning, a provision that contradicts the constitution. The family Code provides for parents/guardians to take necessary disciplinary measures to ensure proper upbringing, a provision which is subject to misinterpretation. The criminal law provides for parents or persons with similar responsibilities to use disciplinary measures that do not contravene the law. Therefore, existing laws require repealing and explicit provisions to be introduced so as to prohibit the use of corporal punishment in all settings. The law reform strategy will therefore require initiating coordination, collaboration and discussions for law reform with national networks and associations, child rights activists and government officials. Research and documentation is also essential for purposes of providing evidence-based discussions, awareness raising and advocacy. The whole process will involve children and youth through child rights clubs and other avenues such as the media. The law reform group of experts should by supported to organize community discussions and by providing resource materials.

Plenary comments and main recommendations on the national strategies presented A participant stated that there is a need for explicit prohibition of corporal punishment in the homes in the southern Sudan Child Act. The review of the interim Constitution creates a good opportunity. The positive initiatives made by South Sudan should be linked to North Sudan.


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Since there is an interim constitution linking Northern and Southern Sudan, operations of one affect the other. On issues of child protection, there are interlinked coordinating structures at Juba and Khartoum. These structures are also responsible for reporting to the CRC committee. These structures require strengthening in the area of legal reform. It was clarified that in North Sudan, there is no law prohibiting corporal punishment as a means of punishment or sentence in the penal system. However, the draft Child Bill seeks to introduce such a prohibition.

In Ethiopia, the new law that prohibits NGOs to take part in advocacy activities, is likely to pose a challenge to the whole law reform exercise. However, there are local networks that are not affected by this law and can be used as an avenue for advocacy. Other strategies to counter the challenge include approaching individual parliamentarians and associations to initiate law reform. The Kenyan team was advised not to mention specific names of government officials to work with in implementing the strategy but rather, institutionalize the process. They clarified that they would approach ministries, however, there are specific members of parliament that have declared their stand against corporal punishment and do actively support the promotion of child rights and protection in Kenya, who should be directly targeted. Participants were informed that the Kenya Alliance for the Advancement of Children (KAACR), is advocating for the retention of the proposed provisions on child protection that are in the draft Constitution of Kenya. Additionally, there are initiatives to review all laws touching on children directly or indirectly. So far, the penal code has been amended to repeal the use of corporal punishment as a sentence. Regarding the relationship between the Tanzania mainland and Zanzibar, the participants were informed that efforts are being made to have any positive reforms made in latter apply also to the mainland. Save the Children is working both in the mainland and in Zanzibar.

It was noted that in most countries, both children and women issues are place under one ministry and or department. The implication usually is that women issues are often taken more seriously. CSOs should therefore advocate for the setting up of independent children’s ministries/departments. Participants were reminded that governments have the primary responsibility of ensuring that law reform takes place.

SESSION 11: WORKING TOGETHER IN THE REGION, WITH OTHER REGIONAL NETWORKS AND ACROSS ALL AFRICA

By Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment The session focused on the importance of establishing regional networks that comprise of civil society organizations that can collaborate in advocating for the prohibition of corporal punishment even at the regional level.


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The Southern African Regional Network to end Corporal Punishment and other Humiliating forms of Punishment

By Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment Peter informed the participants that the Southern African Regional Network to end Corporal Punishment has been instrumental at initiating advocacy efforts within its region and also to the African Union (AU). The network mobilized civil society organizations from other parts of Africa in developing and submitting a petition to the AU on corporal punishment. During its last meeting, the network developed resolutions that it would follow up on which are as follows:

� Share resources amongst network members � Make contact with Graca Machel and request her to be the networks goodwill ambassador � Initiate contacts with Desmond Tutu who has made very positive statements on child rights � Identify role models and media figures to recruit to support the campaign � Develop a tool kit on child participation � Follow up on various organizations in support of the campaign that have direct contact with children such as Child Helpline

� Link the regional network with other regional bodies such as the AU and ECOWAS � Draft a letter to the UN special representative on violence against children congratulating her on her appointment and initiating contact with her

� Engage with the Africa committee of experts on the rights of the child to follow up on its objectives

� Develop a parenting skills document � Develop a statement on the promotion of positive parenting to be circulated to member states � Translate materials on corporal punishment into local languages � Engage the All African Council of Churches � Broaden the network to include representation from other Southern-African countries � Develop a media strategy � To update the network’s vision and mission statement

Peter used this network as a good example which the other regions in Africa could borrow from.

Western Africa By Elkane Mooh, Save the Children Sweden West Africa Regional Office

ECOWAS has been identified as the most appropriate body to use to reach West African states. Since 2001, an agreement has been in place with ECOWAS. A decision has been made to include issues of PHP in its MOU. The peer review exercise that ECOWAS will be engaging in would be a good opportunity for following up on progress made by the member countries on prohibiting PHP. It has been a challenge introducing this topic as ECOWAS is a big machinery and has been having only one person manning the child rights unit. This is likely to improve as there is now a department of gender and children rights with a team to run it. NGOs in West Africa joined the Southern African regional network in endorsing the submissions which were made to the Africa Committee of Experts on the Rights of the Child. The submission made to the


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Committee of Experts will be among the meetings agenda in addition to discussing how to link the PHP team to the CRC monitoring one. West Africa has been identified as the pilot region to work with the UN Special Representative on Violence against Children. This will create an opportunity for establishing children’s networks. PHP was a major issue of concern among the children during the UN study process.

The East and Central Africa Regional Network on the UN study

By Tina Ojuka-Regional Programme Officer, Save the Children Sweden

Tina informed that participants that a regional network for East and Central Africa on the UN study on violence against children was formed in the year 2007. The network comprised of key civil society organizations and government representatives with the region. The team has mainly been involved in information exchange and also worked with its Southern Africa counterparts in developing and endorsing the submissions that were made to the A.U. Representation within the network has drastically changed due to the high staff turnover and/or change of areas of responsibility among the network members. The network acknowledges the need of strengthening itself so as to have a more structured approach on advocacy within the region

Plenary Comments and Recommendations on Regional Networks

� The East and Central African network needs to focus its mandate on addressing corporal punishment issues, as much as possible;

� The regional networks should strengthen collaboration amongst themselves so that they can jointly influence regional bodies such as the ECOWAS, and the AU;

� Networks and individual organizations should make efforts to engage with the Global Initiative to End Corporal Punishment by being included in their mailing list so as to receive global updates. There are also plans by the Global Initiative to form a panel of high level and credible personalities within the continent to send letters to heads of states urging them to put measures in place to end corporal punishment. Additionally the Global Initiative has received funding for a part time advocacy officer who would be based in Addis-Ababa, and would mainly provide support to countries where work on the prohibition of corporal punishment has not began;

� There is need to sign up to the petition by CRIN, for a draft optional protocol to the UNCRC. CSOs should also encourage their foreign affairs ministries to support the optional protocol campaign. The optional protocol is an avenue for the CRC committee to receive individual complaints. All the other core human instruments with the exception of the CRC have communications procedures that allow individuals to send out complaints to the committee responsible for the treaty and make a ruling on the matter.

In conclusion, participants agreed that there is need to expand the East and Central Africa regional network by including Rwanda and Tanzania. A formal invitation will be sent to those representing these countries to join the network. Existing members will be requested to state whether they wish to continue as members of the network. A secretariat should be formed to facilitate and coordinate the network activities. Although Save the Children Sweden has been the secretariat, it was agreed that it would be more effective to have a local


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NGO as the secretariat instead. After a lengthy discussion and several suggestions on an organization would act as the secretariat, it was agreed that ANPPCAN Kenya would be the secretariat. This was on the grounds that it has engaged in extensive work on corporal punishment at programmatic level. It was suggested the Child Welfare Society of Kenya would assist where possible. Meanwhile, representatives from the other organizations/countries were requested to mobilize civil society organizations within their respective countries so as to be part of the regional network. They were also mandated to form networks at the national level. The regional network was renamed the “East and Central African Regional Network to prohibit physical and other humiliating punishment”.

SESSION 12: UNRESOLVED ISSUES Plenary discussion facilitated by Tina Ojuka-Regional Programme Officer, Save the Children

Sweden

Participants were concerned about the availability of resources to facilitate the work of the network. Members were urged to mobilize resources collectively and that they should source for more funding to cater for their activities at national level.

SESSION 13: EVALUATION, FEEBDBACK, CLOSURE By Tina Ojuka-Regional Programme Officer, Save the Children Sweden

Vote of Thanks

Tina thanked participants for usefully participating at the workshop. She thanked the facilitators for being informative, and applying a participatory approach to their facilitation method. She also thanked them for the financial contributions that they made towards the workshop. She further thanked her colleagues from Save the Children- Sweden for all the support they gave in ensuring that the workshop was a success.

Closing Remarks By Denise Stuckenbruck

Denise expressed the fact that she was very impressed by the energy, the good decisions made and momentum of the workshop. She urged participants to empathize with the situation that children have to face every single day, begin to accommodate it in all the spaces in their lives and start conversing at the lowest level to the highest levels if change is to happen. She also requested participants to make it more than just another issue as the issue of corporal punishment cannot afford to become just another issue.


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ANNEX (i): EVALUATION2

2 A total of 27 out of the 37 participants took part in the evaluation.

QUESTION RESPONSES NO

Excellent 23

Good 3

Poor -

1 Workshop agenda i.e. time frame, content etc

No Response 1

Excellent 17

Good 10

Poor -

2 Achievement of workshop objectives

No Response -

Excellent 18

Good 6

Poor -

3 Facilitation of the workshop i.e. time keeping, facilitators etc

No Response 3

Excellent 18

Good 9

Poor -

4 Publications and other material

No Response -

Excellent 15

Good 10

Poor -

5 Inclusion of participants

No Response 2

Statistics on progress in prohibiting corporal punishment

1

Law reform 1

Generating national strategies 1

Presentations by participants on National Progress

2

Involving FBOs and countering faith based opposition

2

Regional networks 1

Debate on corporal punishment arguments

1

6 Most interesting and useful sessions

No Response 18

Excellent 16

Good 10

Poor -

6 The setup of the workshop venue i.e. general ambience, space, lighting, etc

No Response 1

Excellent 9

Good 8

Poor -

7 Accommodation facilities i.e. condition of rooms

No Response 10

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ANNEX (ii)

East and Central Africa Regional Technical Workshop

for Save the Children and Partners:

Law Reform

to Prohibit all Corporal Punishment

Sarova Panafric Hotel, Nairobi (K

enya), 26-28 M

ay 2009

Resourced by the Global Initiative to End All Corporal Punishment of Children, Churches’ Network for Non-V

iolence and Save the Children Sweden

Workshop Objectives:

•

To establish the human rights imperative to prohibit all corporal punishment of children, including in the home

•

To increase knowledge about what law reform

means and how to achieve it through advocacy

•

To develop national strategies for law reform

which can be communicated clearly and pursued following the workshop

DAY 1: Tuesday 26 M

ay 2009

Morning

0800-0830

Registration

0830-0845

Introductions

By Tina Ojuka, Regional Programme Officer, Save the Children Sweden

0845-0900

Welcome Remarks

By Denise Stuckenbruck, Regional Programme Manager, Save the Children Sweden

0900-0930

Review of the workshop agenda

Presented by Tina Ojuka, Regional Programme Officer, Save the Children Sweden

AIM

: To introduce the programme and the tasks participants will complete during and between sessions

0930-1000

Session 1: SC Global overview of initiatives to prohibit corporal punishment

Plenary presentation by M

ali Nillson, Global Advisor on Physical and Humiliating Punishment, Save the Children Sweden

AIM

S: (i) To provide an overview of global initiatives taken by Save the Children on prohibition

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1000-1100

Session 2: The human rights imperative to prohibit corporal punishment – and progress to date

Plenary presentation by Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment of Children, and Sharon Owen, Research

Coordinator, followed by Q&As

AIM

S: (i) To establish the fundam

ental human rights basis for prohibiting all corporal punishment; (ii) To outline global progress towards universal

prohibition and identify, with reference to pre-w

orkshop questionnaire responses, progress in the region and necessary reform

s

1100-1130

Break

1130-1230

Session 3: The elements of legal reform

Plenary presentation by Sharon Owen, Research Coordinator, Global Initiative to End All Corporal Punishment of Children, followed by Q&As

AIM

S: (i) To clarify what legal reform

means with regard to prohibiting corporal punishment in the home and in other settings, including the repeal

of legal defences; (ii) To highlight the key issues in implementation of prohibition in the home and elsewhere in relation to common

misunderstandings about equal protection from assault for children

1230-1400

Lunch

Afternoon

1400-1530

Session 4:

(1) Working with Government and Parliament

Plenary presentation by Peter Newell, followed by Q&As

AIM

: To explain the need for, and give guidance on, engaging with lawmakers from the initial to the final stages of law reform

(2) The use of legal action and regional and international human rights mechanisms

Plenary presentation by Peter Newell, followed by Q&As

AIM

: To provide inform

ation, with examples, on what legal steps can be taken when Governments refuse to take the issue of prohibition seriously

1530-1600

Break

1600-1730

Session 5:

(1) Learning from experience

Brief presentations from participants who have been involved in lobbying Government/Parliament on prohibition

AIM

: To share examples and experience of working with Governments/Parliaments in Africa

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(2) How to devise national strategies for law reform

, identifying opportunities and challenges

Group/individual work, introduced by Sharon Owen

AIM

S: (i) To explain the im

portance of national strategies for law reform

; (ii) To give guidance on how to draft a national strategy and to support

participants in this process; (iii) To provide opportunities for participants from individual countries to seek specific advice from the Global

Initiative and to identify any particular support that the Global Initiative could offer.

By the end of today, in drafting their national strategies participants should have identified (i) the current legal framework in their country, (ii)

where reform

is needed and (iii) specific obstacles/challenges that will need to be addressed.

DAY 2: Wednesday 27 M

ay 2009

Morning

0900-1030

Session 6: Countering faith-based opposition and turning it into support

Plenary presentation by Chris Dodd, Coordinator, Churches’ Network for Non-V

iolence, followed by Q&As, m

ay include brief presentation from

key faith supporters in Kenya

AIM

: To identify way of dealing with significant opposition to legal reform

from faith groups and turning it into support for prohibition

1030-1100

Break

1100-1230

Session 7: Answ

ering the most common arguments against prohibition

Participatory session (discussion, role play, etc), to be planned by Tina, Peter, Sharon and Chris

AIM

S: (i) To explore common arguments against prohibition and ways to counter them; (ii) To build the capacity of participants to deal with

objections to prohibition which they m

ay encounter from a variety of people in a range of circumstances; (iii) To develop participants’

understanding of what implementation of prohibition m

eans in practice and their ability to use their knowledge to build support for law reform

1230-1400

Lunch

Afternoon

1400-1530

Session 8: Developing national strategies

Group/individual work

AIM

S: (i) To continue the drafting of national strategies; (ii) To provide further opportunities for participants from individual countries to seek

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specific advice from the Global Initiative and to identify any particular support that the Global Initiative could offer

By the end of this session, participants should have (i) developed their strategy for engaging with Government and Parliam

ent and (ii) devised

concrete ways to m

eet the challenges identified in session 4 (Day 1)

1530-1600

Break

1600-1730

Session 9: This session is in two parts

(1) Finalising national strategies and presentations

Group/individual work

AIM

S: (i) To continue the drafting of national strategies; (ii) To provide opportunities for participants from individual countries to seek specific

advice from the Global Initiative and to identify any particular support that the Global Initiative could offer

By the end of this session (or by the end of the evening), participants should have completed (i) their national strategies in detail and (ii) their short

presentations for tomorrow (Session 9)

(2) Key resources to support the promotion of law reform

Presentation by Sharon Owen and Chris Dodd

AIM

S: (i) To present briefly a list of key resources to support the process of promoting law reform

; (ii) To learn about any further resources, or

advice on resources, which participants have identified as necessary in order to implement their national strategies

DAY 3: Thursday 28 M

ay 2009

Morning

0900-1100

Session 10: Presentation of national strategies

Facilitated by Tina, followed by Q&As

AIM

S: (i) To share strategies with other participants; (ii) To build the capacity of participants to communicate their strategies effectively

1100-1130

Break

1130-1230

Session 11: Working together in the region, with other regional networks and across all Africa

Plenary presentation, followed by Q&As

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AIM

S: (i) To share examples of what can be achieved by promoting prohibition at a regional level; (ii) To discuss how to work collaboratively as a

region and with other networks across Africa; (iii) To agree the next steps for developing a regional approach

1230-1400

Lunch

Afternoon

1400-1530

Session 12: Unresolved issues

Whole group discussion

AIM

S: (i) To clarify any unresolved issues/questions arising during the workshop; (ii) To highlight any key issues and debates round law reform

that have not already been addressed

1530-1600

Break

1600-1700

Session 13: Evaluation, feedback, closure

Led by Tina

AIM

: To learn from experiences in this workshop what will be useful in supporting campaigns for reform

in the region and in promoting reform

in

other regions

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ANNEX (iii): LIST OF PARTICIPANTS

NAME

ORGANIZATIO

N

COUNTRY

EMAIL

1.

Zaina Nyiram

atam

a Haguruka

Rwanda

jmunyana@

yahoo.fr

2.

Francis Ekadu

Sc in Uganda

Uganda

[email protected]

[email protected]

3.

Mubarak M

aman

SC in Tanzania

Tanzania

m.m

[email protected]

4.

Dr. Daniel Nyanchiri

Child W

elfare Society of Kenya

Kenya

dnoenga@

yahoo.co.uk

5.

Mercy M

usomi

Girl Child Network

Kenya

[email protected]

6.

Evans Kim

athi

Girl Child Network

Kenya

murungikikim

athi@

yahoo.com

[email protected]

7.

Robert Matwete

FORUM

Kenya

jiraque@

yahoo.com

8.

Dansteve Ragira

FORUM

Kenya

dansteveragira@

yahoo.com

9.

Josephat Kalinge

NCCS

Kenya

[email protected]

10. Rachael Oduor

Kenya National Association of

Parents (KNAP)

Kenya

rachael.oduor@

yahoo.com

11. Valerie

MoE- City Education

Departm

ent

Kenya

[email protected]

12. Grace Owinga

MoE- City Education

Departm

ent

Kenya

[email protected]

13. Ibrahim

Alubala

Children Legal Action Network

Kenya

Ibrahim

@clan.or.ke

14. Joyce M

wangi

Save the Children – Regional

Office

Kenya

[email protected]

15. Ezan M

wiluki

ANPPCAN Kenya

Kenya

[email protected]

ezan.m

wiluki@

anppcankenya.org

16. Rose Odoyo

ANPPCAN Kenya

Kenya

[email protected]

[email protected]

17. Helen M

utela

The CRADLE

Kenya

[email protected]

gilbert@

thecradle.or.ke

18. David M

ugaw

e African Child Policy Forum

Ethiopia

[email protected]

19. Belay Zelleke Beshir

ANPPCAN Ethiopia

Ethiopia

[email protected]

20. Yonas Ashagari

Emmanuel Development

Association

Ethiopia

Yonas.ashagari@

gmail.com

21. Alemtsehay M

ulat

Save the Children Sweden

Ethiopia

alem

[email protected]

EC

Af

Afr

ica

Reg

ion

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22. Awatif Abdelkarim

National Council for Children

and W

omen

N. Sudan

awatifmokhtar@

yahoo.com

23. Adil M

oham

ed Fadul

Police Departm

ent

N. Sudan

[email protected]

24. Lual Choldit

SC UK

S. Sudan

[email protected]

[email protected]

25. William

Deng Puok

SC UK

S. Sudan

[email protected]

26. Rachael Achold Gai

MOEST GoSS, Juba

S. Sudan

[email protected]

27. Majuline Azuza

Aligo

Government of Southern Sudan

S. Sudan

[email protected]

inistry.se

28. Joseph Geng


S. Sudan

[email protected]

[email protected]

29. Hans Ridem

ark


Kenya

[email protected]

30. Rozita D’ Souza


Kenya

rozital@

ecaf.savethechildren.se

31. Tina Ojuka

Save the Children Sweden –

Regional Office

Kenya

[email protected]

32. Tom Chege

Save the Children Sweden –

Regional Office

Kenya

[email protected]

33. Elkane Mooh


West Africa Regional Office

Senegal

[email protected]

34. Dan Rono

Save the Children US

[email protected]

35. Denise Stuckenbruck


Kenya

[email protected]

36. Mali Nilsson


Sweden

[email protected]

37. Peter New

ell

Global Initiative to End all

Corporal Punishment

UK

[email protected]

38. Dr. Sharon Owen

Global Initiative to End all

Corporal Punishment

UK

[email protected]

39. Chris Dodd

Churches’ Network for Non-

Violence

UK

[email protected]


34

ANNEX (iv): PRESENTATION ON THE HUMAN RIGHTS IMPERATIVES TO PROHIBIT AND ELIMINATE ALL CORPORAL PUNISHEMNT AND GLOBAL PROGRESS TOWARDS ACHIEVING IT

By Peter Newell, Coordinator, Global Initiative to End All Corporal Punishment of Children

Where did corporal punishment come from? I suspect that corporal, or physical, punishment has always existed in human societies in one form or another, as it exists in animal societies. There is some attractive anthropological research suggesting that in original small-scale hunter-gatherer societies (which barely exist now) and in societies where child-rearing was widely shared, there has been little or no use of pain as a form of discipline. Laws allowing punitive violence against children certainly go back a long way… In ancient Roman law, fathers had the right to kill their children, and when that right was removed, around the year 365 AD I am told, it was replaced with the right to use violent discipline. From this developed our English law – the right of “reasonable” chastisement or punishment. If you are wondering why there are so many English facilitators for this workshop, one good reason could be the collective responsibility we feel for the influence which our forefathers had during the colonial period in spreading and promoting the habit of corporal punishment, in the context of slavery and military occupation, institutionalizing it in the development of schools and care institutions and penal systems and endorsing it in much missionary teaching. The law of more than 70 states worldwide, including that of Kenya and other states represented here includes these concepts of “reasonable” violence against children. And in our own country, we are still campaigning for the complete removal of the “reasonable punishment” defense. Of course, it was not just the English: France, Spain, Portugal and other

colonial powers left behind similar justifications for punitive violence against children. I often hear people saying: “But corporal punishment is part of our culture”, as if it wasn’t a part of my country’s culture and the culture of more or less every state worldwide. This is a global problem – a problem in every state in all regions, not a special problem in this region or in Africa. It has now become a visible problem and there is a strong and growing movement in all regions to challenge all corporal punishment as a human rights violation, and accelerating progress to prohibit it and go on to eliminate it through public and parent education. It is an exciting period because there is real progress, in Kenya and in other countries represented here and in some states in all regions. But one purpose of this workshop must be to develop a collective impatience, anger even, at the time it is taking to respect children’s – of all people’s – equal rights to human dignity and physical integrity. Adults come up with endless excuses for delay. But we cannot accept them: we must not miss opportunities. We have to confront governments and parliaments with their obligations; we have to understand the obvious – that unless this issue is actively raised and the campaign pursued, there can be no progress. Governments are most unlikely to pursue an issue which is almost inevitably unpopular with adults, without a lot of pushing.

Why is challenging all corporal punishment so important?

Why is this issue important? I often meet people who are puzzled or scornful that anyone could see ending corporal punishment as a priority, given the extreme breaches of children’s rights and the extreme forms of violence that children in so many states are still facing. But what we are challenging is not just one particular form of violence, but the whole idea that some arbitrary degree of violence


35

against children should, uniquely, be legal and socially approved. Punitive violence against children in your society and mine and most others, is administered casually, is a routine part of a majority of children’s lives, and is part of the scenery. For much too long, many people, including those involved in child protection, have tried to keep the concepts of child “abuse” and physical punishment in two separate “boxes”. But more or less all of the physical “abuse” that globally kills thousands of children – mostly very young – and maims and injures countless thousands more, including children in all your countries and in mine - is perpetrated in a context of punishment or discipline – is physical punishment. Also, ending corporal punishment is an essential strategy for ending all forms of violence against children: the idea that breaching a child’s human dignity and physical integrity is acceptable, normal, or even as some still suggest “in their best interests”, perpetuates their status as objects or property, and makes every other sort of extreme abuse and exploitation, including sexual exploitation and trafficking, more likely and easier. It is surely fairly obvious that ending all legalized violence against children is the only safe foundation for child protection. But beyond the child protection context, the acceptance and legality of this daily punitive violence is highly symbolic of children’s low status in our societies, as possessions. Just as with women, challenging routine domestic violence has been a fundamental part of women’s campaigns for equality in our societies. So it is with children. When we challenge all corporal punishment, however light, we are pursuing children’s equal right to respect for their human dignity and physical integrity. This is as fundamental as anything can be to improving children’s status and gaining recognition and respect for children as rights holders alongside the rest of us.

There is no other children’s rights issue as symbolic of children’s low status as less than people. The strength of the resistance to challenging hitting and humiliating children demonstrates how much it is a part of the traditional culture of almost every society. What we are about in this campaign is cultural change - a real shift in how children are regarded and respected. So if we win this issue, if we persuade governments and societies and individual parents, teachers and other adults of children’s equal right to respect, their right to equal protection under the law, it is a huge breakthrough towards the overall goal of achieving respect for children as rights holders, achieving recognition and ultimate realization of their rights.

“But children are different”

When one uses parallels with the campaign against violence against women, people respond: “But children are different”. Yes, of course they are different. The babies and small children who research suggests are the victims of most corporal punishment in the home are different in that they are very small and very fragile. Children’s vulnerability, their developmental status, their dependence on adults and the huge difficulties they face in seeking protection for themselves: all these differences suggest that they should have more, not less protection from being hit and hurt. While there is still far too much violence against women, no country now defends “reasonable” violence, or “disciplinary” violence against women. Societies do move on. But regrettably, in this case, children in most states are still waiting for the full protection of their human dignity and physical integrity which we as adults take for granted. It should be shaming to all of us that children are the ones singled out in our laws for less protection from assaults on their fragile bodies, minds and dignity.


36

Why is this issue so difficult? This should be a very simple issue – hitting people is wrong and children are people too. But in fact it is hugely difficult and controversial still in many states in all regions. The difficulty comes from the personal dimension. When we are campaigning against the more extreme forms of violence against children, sexual exploitation, and trafficking, female genital mutilation and so on – we perceive the perpetrators as other people, quite different from us. But when it comes to corporal punishment, most people in my country, the UK, and yours, were hit as children by their parents. Most parents have hit their own growing children. None of us likes to think badly of our parents, or of our own parenting. This makes it very difficult for many people, including politicians, and even those working in child protection or in human rights institutions, to think humanely or logically about the issue, to see it clearly now as an issue of equality and human rights. Whatever audience one is addressing on this issue, one has to remember that the first response from individuals is likely to be at a personal, not a professional, level. It often takes time to get through the personal dimension, and for some people it is indeed too painful and difficult. I have often found it hard to convince people who have hit their own children that they can move on and join the campaign to prohibit and eliminate it. It is, surely, entirely understandable in our societies that parents have accepted and followed traditional pressures to use corporal punishment – but understanding it does not make it right. Another difficulty in many countries is that some believe their religion gives them a right or even a duty to use corporal punishment. We all enjoy freedom of religious belief. But belief cannot lead to practices which breach others’ rights, including their rights to respect for their human dignity and physical integrity. Religious/faith leaders are increasingly speaking

out against all violence against children, and supporting law reform to prohibit all corporal punishment, as we will hear from Chris Dodd later in the programme. For example, such global figures as Archbishop Desmond Tutu and His Holiness the Dalai Lama are supporters of the Global Initiative. Development of a human rights consensus against corporal punishment Now at last there is rapidly accelerating progress to challenge and end the legality and acceptance of adults’ punitive violence against children in all regions; Sharon will present the details of progress in a few minutes. The major context for progress over the last 20 years has been the almost universal acceptance - by 193 states - of the Convention on the Rights of the Child (CRC). The particular task of the Convention is to confirm that children are holders of human rights alongside adults. The Committee on the Rights of the Child, the monitoring body for the CRC, has paid particular attention to violence against children since it started to examine reports from States in 1993. It systematically recommends prohibition of corporal punishment of children in all settings, including the home and family. The country reports we have circulated give details of the recommendations that your states have received. In 2006, the Committee issued its first General Comment on violence – on the right of the child to protection from corporal punishment (you have it in your packs). The Convention is the first international human rights instrument expressly to require the protection of children from “all forms” of physical or mental violence, in article 19. As the Committee writes: “There is no ambiguity: ‘all forms of physical or mental violence’ does not leave room for any level of legalized violence against children. Corporal punishment and other cruel or degrading forms of punishment are forms of violence and States must take all appropriate legislative,


37

administrative, social and educational measures to eliminate them.” In its General Comment, the Committee provides a broad definition of corporal, or physical, punishment - “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light…”. It goes on to provide a long, but non-exhaustive, list of the physical ways in which adults hurt children. And the Committee emphasizes that while corporal punishment is invariably degrading, there are other non-physical forms of punishment which are also cruel and degrading and thus incompatible with the Convention - punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.

The Committee highlights that rejecting

violent and humiliating punishment does not

mean rejecting discipline – which is about

leading children to good behavior. Hitting

children is an obvious lesson in bad behavior.

And prohibiting violent punishment does not

limit the protective use of reasonable force:

with babies and young children, parents use

protective physical actions the whole time –

but these are quite distinct from deliberately

hitting and hurting children to punish them. In addition to the Committee on the Rights of the Child, the other relevant UN human rights Treaty Bodies – the Human Rights Committee, Committee on Economic, Social and Cultural Rights, Committee against Torture and the Committee to Eliminate Discrimination against Women have all condemned corporal punishment and recommended prohibition. Also regional human rights mechanisms have done so, including the European Court of Human Rights, the Inter-American Court and Commission of Human Rights. And as you will know, the African Committee of Experts on the Rights and Welfare of the Child recently committed itself to telling all states that they have an obligation to prohibit all corporal

punishment. There have also been judgments from high-level domestic courts in many states in all regions, including Africa: some condemning corporal punishment in penal systems and schools, some relating to the home as well. Later in the programme we will discuss ways of using legal action and international human rights mechanisms to force unwilling governments to fulfill their human rights obligations and prohibit all corporal punishment. UN Secretary General’s Study on violence against children An additional, recent context for progress has been the human rights-based UN Secretary-General’s Study on Violence against Children. The Study, proposed by the Committee on the Rights of the Child, was the first comprehensive global review of violence against children. It was also the first UN exercise of this kind to seek to involve children; for example, children played a very visible and vocal role in the nine regional consultations held as part of the Study process. This had a profound impact, because children focused not only on the severe forms of violence, against which there is already a global consensus, but also on the daily routine violence so many of them suffer in their homes and other settings. Their presence and their testimony made it very hard for the adults, politicians and others, to remain in denial. The Study was led by Professor Paulo Sergio Pinhero from Brazil, and when his report was submitted to the UN General Assembly in October 2006, it included the recommendation that States should prohibit all forms of violence, including all corporal punishment. It set an ambitious deadline of the end of 2009. We now at last have a Special Representative to the Secretary-General on violence against children, Marta Santos Pais from Portugal, an early member of the Committee on the Rights of the Child and a long-term advocate of prohibition of all corporal punishment.


38

What are the steps to eliminate corporal punishment? It is the child’s right to be protected from all corporal punishment, wherever they are and whoever the perpetrator. Eliminating corporal punishment requires both clear and explicit law reform and sustained public and parent education – about children’s rights and the law, awareness-raising of the dangers of corporal punishment and promotion of positive, non-violent relationships with children. Law reform, which will be covered in detail in the next session, requires the removal of any existing authorizations of corporal punishment or defenses of it which exist in any laws, or in common (case) law. If all authorizations and defenses are removed, then the criminal law on assault should protect children as it protects adults from assaults in all settings of their lives, whether or not the assault is disguised as discipline. Children need this “portable” protection from violence in all settings and by any perpetrators. Because the purpose is to deliver a clear message that it is as unlawful and unacceptable to hit a child as to hit anyone else, it is useful for the various sectoral laws – relating to the family, schools, other institutions, child labor, and penal systems – to also include explicit prohibition of corporal punishment. Of course, law reform on its own is not enough. But law reform is necessary. While the law says it is OK to hit children, public education to try and change prevailing attitudes will have little impact. I know that a number of you work in emergencies or more generally in what are termed “fragile states”, and you might feel that talk of formal law reform was a long way away from the reality of the situations you are working in. But surely an ever stronger focus on human rights and the rule of law is the only way out of these situations and it must be essential to advocate for fulfillment of states’ obligations, which do not in any sense reduce or disappear during periods of armed conflict or national

disaster, including their obligation to develop legislation which clearly prohibits all corporal punishment. While faster and more decisive action may be required, the framework for protecting children in emergencies must be rights-based, with an insistence on the fundamental protection of their human dignity and physical integrity. The laws that prohibit all corporal punishment, reflecting children’s right to equal protection, must be taken seriously, but when parents are the perpetrators, prosecution and other formal interventions are very seldom going to be in the child’s best interests. Prosecuting parents, and sending them to prison or fining them, is very seldom in their children’s interests, whatever the crime. The Committee on the Rights of the Child provides detailed advice on this in its General Comment No. 8, suggesting that prosecution and formal interventions should only occur when judged necessary to protect a child from significant harm and to be in the best interests of the child; this could be reflected in the legislation, to re-emphasize its primary aim. Parents are not going to be charged or prosecuted and taken to court for minor assaults, any more than adults are for minor assaults on other adults. Nevertheless, fulfilling children’s human rights requires that assaults on children should be criminal offences just as assaults on adults are. There will need to be very clear guidance for all those working with and for families and in child protection, including the police and courts, to ensure the law is implemented in the best interests of the child victims. When implementing prohibition in schools or other institutional settings, it is very important that teachers and others should know that assaulting children is a criminal offence, and that they risk not only dismissal but also prosecution if they continue to use corporal punishment. Public education and of course appropriate initial and in-service teacher training must accompany law reform. The process of law


39

reform in itself should be educational if properly disseminated. Some argue that parent and teacher education should come first, and law reform should follow. But laws that authorize or defend corporal punishment fatally undermine attempts to change traditional habits of violence towards children. Nobody would seriously argue that we should wait to prohibit all violence against women until we have achieved full employment and universal anger management courses for men. This issue has become globally visible: the persisting legality and social acceptance of corporal punishment is clearly confirmed as a human rights violation. Banning corporal punishment is children’s right now, not tomorrow or next year. Why should children wait any longer? Law reform to prohibit corporal punishment in many states has proceeded sequentially – first banning it in penal systems, then in schools and other institutions, then in foster-care, and finally in the home. But for children, there is no logic in this. It is in their homes and families that children are hit the most. It is children’s right to be protection from all forms of violence, including all corporal punishment, wherever they are. We must not put governments off this long-overdue reform for children by suggesting that a new and separate and very expensive educational programme is required. Because traditional attitudes to children run so deep, educational efforts will need to be sustained over a very long period. We should encourage government to see that the key messages – and they are, after all, quite simple messages – are built into all the state’s contacts with future parents, new parents and existing parents: at birth registration for example, through all points of contact between health services and new parents and families, on entry to pre-school and school and in the school curriculum. There is no shortage of materials and programmes, from Save the Children and others, which can be used and adapted.

It is important to aim to build a broad alliance for reform, bringing in professional groups including pediatricians, doctors and psychologists, teachers, social workers, parent groups, human rights institutions and organizations, organizations working against violence against women, faith groups and so on. And all of these can support government with public education. And of course it is important to engage with children and child-led organizations who want to work on this issue. It is an adult responsibility to eliminate adult violence against children, but children have a right to express their views and have them taken seriously. And children can be the most powerful advocates for change…. If you campaign for less than complete prohibition of all corporal punishment in all settings including the home, you lose the arguments of principle and logic, the case for reform is weakened, and children have to wait even longer. This is not an issue where compromise is useful, or acceptable. The inescapable core of this issue is that children have exactly the same right to respect for their human dignity and physical integrity as the rest of us; recognizing and realizing their equal right is long overdue. Peter Newell May 2009 [email protected] www.endcorporalpunishment.org


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ANNEX (v): PROGRESS TOWARDS PROHIBITION OF ALL CORPORAL PUNISHMENT IN EAST AND CENTRAL AFRICA AND ELSEWHERE

Dr Sharon Owen, Research Coordinator, Global Initiative to End All Corporal Punishment of Children (www.endcorporalpunishment.org)

Globally, 24 states have prohibited corporal punishment of children in all settings, including by parents and other carers within the home; 106 have prohibited corporal punishment in schools, 149 as a sentence of the courts, 109 as a disciplinary measure in penal institutions, and just 34 in all forms of alternative care.

Throughout Africa, the picture looks like this: no states prohibiting in the home, 22 states prohibiting in schools, 37 prohibiting corporal punishment as a sentence of the courts, 20 prohibiting as a disciplinary measure in penal institutions, and just 2 in all forms of alternative care.


41

So that was the good news about states which have achieved prohibition. But of course, it is those which have not achieved law reform which are our focus here. This chart summarizes the number of states in the region the rest of the world where law reform is necessary:

Of the total of 173 states where corporal punishment is lawful in the home, 13 are in East and Central Africa, 41 in the rest of Africa and 119 in the rest of the world;

Of the total of 91 states where corporal punishment is lawful in schools, 9 are in East and Central Africa, 23 in the rest of Africa and 59 in the rest of the world;

Of the total of 44 states where corporal punishment is lawful as a sentence of the courts, 4 are in East and Central Africa, 10 in the rest of Africa and 30 in the rest of the world;

Of the total of 78 states where corporal punishment is lawful as a disciplinary measure in penal institutions, 8 are in East and Central Africa, 19 in the rest of Africa and 51 in the rest of the world;

Of the total of 159 states where corporal punishment is lawful in all alternative care settings, 12 are in East and Central Africa, 38 in the rest of Africa and 109 in the rest of the world

.

If we look at the situation in terms of the proportion of the child population that has legal protection from all forms of corporal punishment in all settings, we can say that only 3.2% of the world’s children – and 100% of children in East and Central Africa – live in places where they are protected by law from being hit by their parents. This means that the right of every child in East and Central Africa to equal protection

from assault is violated. Every child can be lawfully hit and assaulted by parents and other adults in the place where they should feel the safest, in the home. We know of some moves towards reform, and we hope that the workshops this week will encourage more, and result in a greater sense of urgency about making things better for children.


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ANNEX (vi): ACHIEVING LAW REFORM TO PROHIBIT CORPORAL PUNISHMENT OF CHILDREN

Dr Sharon Owen, Research Coordinator, Global Initiative to End All Corporal Punishment of Children (www.endcorporalpunishment.org)

What does legal reform involve?

The foundation for pursuing legal reform is a clear understanding of what the law says now, and what it should say to achieve prohibition. Prohibition results from reviewing the law and then reforming it through drafting new legislation and promoting law reform through national and, ideally, regional strategies.

(a) Reviewing current law

The first step in campaigning for legal reform against all corporal punishment must be to research the relevant legal frameworks in detail. It is important to establish definitively whether or not corporal punishment is currently prohibited in all settings where there are children:

• in the home, by parents and others with parental responsibility

• in schools, including all education settings, e.g. there may be different laws or regulations applying to state schools, religious schools and private schools, or to schools at different levels of education (primary, secondary), or to full and part-time provision.

• In alternative care settings. In most countries there are many different kinds of residential children’s homes and orphanages, run by the state, by voluntary and religious organisations and by private bodies. There may be regulations applying only to state-run bodies. Where prohibition of corporal punishment is a condition of licensing, it is important to establish whether all providers of care must be licensed or only certain ones. Foster parents are likely to have the

same rights as parents, but some countries have regulations prohibiting the corporal punishment of children who are in foster care. There is usually a wide variety of day care provision – places where young children are looked after while their parents are working: nurseries, crèches, day care centres, and less formal systems. Sometimes there are laws or regulations prohibiting corporal punishment by staff, but discipline policies allow parents to smack their own children on the premises. There may also be childminders in the care system – people paid to look after groups of young children in the childminder’s home. It is important to find out what, if any, regulation there is of the various arrangements. If the law is silent, these carers will have the same rights as parents to use corporal punishment.

• In the penal system – as a sentence of the courts. In some countries, courts can still sentence children and young people to be caned, whipped or flogged. There may also be customary, traditional or informal systems of justice and punishment operating locally which include corporal punishment. Human rights apply equally to all children in the jurisdiction: there can be no possible justification for local or customary laws that allow violent punishment of some children. In institutions accommodating children in conflict with the law, corporal punishment may be allowed as a disciplinary measure. Sometimes children can be sent to approved schools or other education institutions for children convicted of an offence and/or children in need of care and protection. You will need to investigate whether laws applying to schools generally also apply in these settings.

• In situations of child labour – Employers may use corporal punishment in situations of child labour, particularly in domestic work situations.

• Other institutions: Are there any other state or private institutions caring for or providing treatment for children where corporal punishment may be used (e.g. health or mental health (psychiatric) institutions)?


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It is also important to find out if there have been any significant challenges to corporal punishment in any of these settings, e.g. through government consultations, official reports recommending reform, parliamentary discussion, campaigns by NGOs or human rights institutions, legal challenges, etc.

In some states, governments have issued policies, guidance or circulars stating that corporal punishment must not be used. These are positive, and should be analyzed in the review, but they do not amount to prohibition, which must be achieved through legislation which has been passed by Parliament and can be enforced.

How to find out whether or not corporal punishment is prohibited

Finding out what the law says is not always straightforward. Most countries have assault laws which make it a crime to hit or otherwise assault another person. Many have child protection laws prohibiting cruelty to children, and some have constitutions which guarantee protection from cruel, inhuman or degrading punishments. Many countries, when they ratify international human rights instruments like the Convention on the Rights of the Child, incorporate them into their law so that it takes precedence over domestic law. But very rarely will this legislation, in practice, protect children from being hit by parents and other carers.

When you review the legislation you are looking for:

• Legal defences and justifications. In many countries, the right of parents, teachers and

others to use “reasonable” corporal punishment, is actually written into the law, with special defences available, so that the law on assault does not apply to “disciplinary” assaults on children by parents, teachers or others. The English common law defence of “reasonable chastisement” exists in very many countries across the world – so that if a parent is charged with assaulting their child, they can claim that the assault was “reasonable chastisement”. The near universal acceptance of corporal punishment in childrearing means – unless the law says otherwise – corporal punishment is considered to be “reasonable”.

• Authorising/regulating laws. These are laws which specify who should inflict corporal punishment on a child and how it should be carried out, e.g. as a sentence of the courts or in schools.

• “Silent laws”. In other countries, the law is silent – there is no reference to it in education law or family law. But this does not mean that it is prohibited. In some countries even though the law does not address the issue, the “right” to use corporal punishment has been confirmed in court judgments; in others it is simply accepted throughout society. Until there is clear, overall prohibition, it is necessary to look at individual laws – e.g. relating to child care, education, juvenile justice – to see if there has been at least some progress towards protecting some children in some situations from corporal punishment.

Examples of legal defences

“Nothing in this section shall affect the right of any parent or other person having the lawful control or charge of a child to administer reasonable punishment on him.” (Kenya, Children Act 2001, section 127(5))

“No correction of a child is justifiable which is unreasonable in kind or in degree according to the age, physical and mental condition of the child and no correction is justifiable if the child by reason of tender age or otherwise is incapable of understanding the purpose of the correction.” (Sierra Leone, Child Rights Act 2007, section 33(2))


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Constitutional law

Usually, national constitutions refer generally to the right not to be subjected to torture and other cruel treatment or the right to protection from violence. In a very few cases they refer specifically to corporal punishment. It is important in reviewing the legislation to look at the constitution. The action to be taken in relation to constitutional law depends on what the constitution says:

• If the constitution explicitly prohibits corporal punishment, law reform should be pursued in order to confirm the prohibition in criminal and other national legislation.

• If the constitution specifically permits corporal punishment of children, the constitution should be included in the list of laws that need to be reformed.

• If the constitution does not mention corporal punishment, there is no need to revise it to include explicit prohibition. In general, constitutions deal with basic principles, such as respect for physical integrity and human dignity and equal protection under law. Explicit prohibition in national laws would be consonant with such constitutional principles and constitutional reform would not be necessary.

(b) Reforming the law

The next steps are to identify what is needed in the place of the laws allowing corporal punishment, and to draft new legislation. The task of prohibiting corporal punishment is often overcomplicated. The aim is simply to make sure that the law explicitly prohibits all corporal punishment and other cruel or degrading punishment of children in all settings.

The extent to which NGOs are directly involved in drafting new legislation will depend on the particular process of law reform in each country but it is important to understand what is required so that you can ensure the reform does actually achieve prohibition. And if you are initiating advocacy for law reform from scratch, then drafting and publicizing concrete proposals for new legislation is an important and useful step.

Ideally, legislation should be drafted as soon as possible after the review, or an initial draft could be included at the end of the review report. This will ensure:

• that the draft is based on the law as it currently stands – if it is left too long, other laws/regulations may have come into force which may make the proposals out of date or incomplete

Example of common law allowing corporal punishment

The old English common law defence of “reasonable chastisement” is used in many countries. In 1860, a judgment was made in a case where a teacher had beaten a boy to death. The teacher was convicted of manslaughter, but the judge stated: “By the law of England, a parent ... may for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.” This judgment has been cited around the world.

Example of law authorising corporal punishment

“The court may apply the following measures, against an accused juvenile, who has completed seven years of age, at the time of committing the criminal act, but not eighteen years of age: ... (b) whipping, not exceeding twenty lashes, by way of discipline....” (North Sudan, Criminal Act 1991, section 47(b))


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• that you have proposed legislation ready to

hand to inform your policies and to enable

you to respond to opportunities as they arise.

There are two essential components of law reform to achieve prohibition:

(i) Removing (repealing) all defenses and authorizations of corporal punishment

Once you have carried out the review of existing law, you should have a comprehensive list of all legal provisions authorizing corporal punishment and all legal defenses for its use. This list should include precise legal references – the name of the law, the number of the article, and the text. These are the legal provisions which must be repealed.

Once all authorizations and defenses for corporal punishment are removed, the basic criminal law on assault will apply to children. This means that any assault, whether in the context of punishment or “discipline”, will be unlawful. Children, like adults, will be protected by the criminal law wherever they are and whoever the perpetrator. But to send a clear message, the prohibition of corporal punishment should also be stated in specific legislation on juvenile justice, education, child protection and so on.

(ii) Enacting explicit prohibition of corporal punishment and other cruel and degrading punishment

The two most important tasks in enacting explicit prohibition are:

• amending existing laws and/or enacting new legislation

• getting the language right

Amending existing law and enacting new legislation

Clearly, removal of legal defenses and authorizations necessitates amending existing legislation. But simply removing the provisions is a “silent” reform. It does not send a clear educational message to society that corporal punishment is no longer lawful. The law needs to be clear and explicit so that adults and courts cannot misinterpret it. Prohibition is achieved when the repeal of the defense is accompanied by the insertion of a statement which makes it clear that

Assault can no longer be justified as punishment or correction.

Where there are no defenses to be repealed, the task is to bring in new legislation to explicitly prohibit all corporal punishment. Ideally, prohibition is included in legislation which recognizes children’s rights wherever they are – home, school, workplace, institutions. This can be achieved by inserting an article into existing child law, or by enacting a new law specifically to achieve prohibition.

Some countries which have achieved prohibition have enacted a new law prohibiting all corporal punishment and other cruel and degrading punishment, and included in this a series of amendments and repeals to other legal provisions on corporal punishment. The important thing is to ensure that no loopholes are left which could be construed as allowing corporal punishment in any setting.

Finally, although not strictly necessary, some governments have found that parents and others are reassured if the legislation which prohibits all corporal punishment also confirms that reasonable force may be used for protective purposes.

Getting the language right

The only way to ensure clear, uncompromising prohibition of all corporal punishment is to use clear, uncompromising language in legislation.

Example of repealing a defence

To remove the common law defence and the statutory confirmation of it in Kenya (see above),

section 127(5) should be replaced by:

“Nothing in any rule of common law permits assault or the use of force for the purpose of

punishing a child. Section 127(5), Children’s Act 2001 is repealed.”


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Because corporal punishment is almost universally accepted as a disciplinary measure in childrearing, it is not generally perceived as harmful, abusive or even violent. For this reason, legislation which prohibits “violence” or “inhuman or degrading treatment”, or which protects “physical integrity” or “personal honor and dignity”, does not do the job of prohibiting all corporal punishment. To explicitly prohibit corporal punishment, the law must use the words “corporal punishment”.

If it is necessary to define corporal punishment in the law itself, the definition provided by the Committee on the Rights of the Child should be the reference point for understanding what exactly is being prohibited. As the definition makes clear, all forms and degrees of corporal punishment should be prohibited. Corporal/physical punishment is:

“… Any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (‘smacking’, ‘slapping’, ‘spanking’) children, with the hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching,

pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the

Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.”

The terms “corporal punishment” and “physical punishment” have exactly the same meaning and are interchangeable. But prohibiting corporal punishment “which causes, or is likely to cause harm” misleadingly implies that there is a form or degree of corporal punishment that is not harmful, and the phrase should not be used. Law reform should aim to prohibit “corporal punishment and all other forms of cruel or degrading punishment”, reflecting the language in article 37 of the Convention on the Rights of the Child and in the Committee’s General Comment No. 8.

Examples of explicit prohibition

“Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment.” (Sweden, Parenthood and Guardianship Code, amended 1979, article 1)

“Physical punishment of the child by the parents, as well as other inhuman or degrading treatment or punishment is prohibited.” (Ukraine, Family Code, 2003, article 150)

“Parental authority confers the rights and imposes the duties to orient, educate, care, supervise and discipline the children, which in no case authorizes the use of corporal punishment or any other form of degrading treatment against the minors.” (Costa Rica, Family Code, amended 2008, article 143)

Summary

The following diagram, taken from the Global Initiative legal reform handbook,3 summarizes the steps

necessary to ensure that legislation explicitly prohibits corporal punishment in all settings:

3 Global Initiative to End All Corporal Punishment of Children (2008), Prohibiting corporal punishment of children: A guide to legal

reform and other measures, revised edition 2009 also available in Spanish and French


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CORPORAL PUNISHMENT NOT PROHIBITED IN ALL SETTINGS

PROHIBITION ACHIEVED

Does the law provide a defense for

the use of corporal punishment by

those with authority over a child, e.g.

“reasonable chastisement” or “a

right of correction”?

No

Do any laws authorize/regulate the use of corporal punishment in any

setting?

Enact legislation relating to all settings, including

the family, to explicitly prohibit all forms of

corporal punishment

Repeal all

provisions relating

to corporal

punishment

Legislation clearly prohibits all

corporal punishment in all settings

Yes No, the law

is silent

Repeal all legal

provisions which

recognize or refer to

the defense

Yes, in common

(case) law

Yes, in

legislation

Enact legislation explicitly

stating that the defence can no

longer be used

Laws on assault apply equally to

children and adults +


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ANNEX (vii): THE USE OF LEGAL ACTION AND REGIONAL AND INTERNATIONAL HUMAN RIGHTS MECHANISMS

Peter Newell

In countries where governments are refusing to introduce law reform or are actively opposing it, both international human rights law and national law can be used to ‘force’ them to accept their obligations to realize children’s rights. The idea of using the law frightens some people, but it should not. The law should not be a mystique, however much lawyers want to make it so.

When states are examined on their implementation of the UNCRC by the Committee on the Rights of the Child, the Committee, where necessary, recommends explicit prohibition of all corporal punishment. If states do not comply, the recommendation is repeated at the next examination. While no court can make states obey the Committee, there is pressure and international embarrassment if they do not do so.

organizations can add to this pressure, e.g. by producing an annual report to show what action the government has taken or failed to take to fulfill the recommendations of the Committee on the Rights of the Child and other relevant treaty monitoring bodies. But the most effective pressure comes from making full use of the UNCRC as a legal instrument.

Using national legal systems

Incorporation of the UNCRC

International human rights law is made up of various international human rights instruments: the Convention on the Rights of the Child is a legal instrument. When states ratify the UNCRC, they take on legal obligations to implement it fully. This means, among other things, that they must prohibit all corporal punishment of children, by law.

States have different ways of treating international instruments when they ratify them. In some states, on ratification the instrument automatically becomes part of (is incorporated into) national domestic law, and takes precedence over domestic law. It can therefore be used in courts to claim rights guaranteed by the

instrument. In other states, incorporation is not automatic and requires some action of parliament. In

Some states, the question of the status of the UNCRC have never been answered; it will be answered only when someone takes a case to court.

In states where instruments do not become part of domestic law on ratification, the domestic law should be reviewed and reformed to bring it into line with the instrument.

In all cases, governments need to be reminded that the UNCRC imposes legal obligations, under international law. There is an overarching instrument, the Vienna Convention on the Law on Treaties,4 which emphasizes that accepting human rights instruments means taking on legal obligations. It states that the existence of domestic law which is in conflict with the obligations cannot be used as an excuse for not complying fully.

Constitutional and other domestic laws

Most states have some provisions in constitutions or other basic laws that conflict with laws authorizing or justifying corporal punishment. Most constitutions include rights to protection of ‘everyone’s’ human dignity and physical integrity, to protection from cruel or degrading punishment or treatment, and to equal protection under the law. These provisions may also be reflected in child protection or child rights laws.

These national legal provisions can be used to challenge corporal punishment in all or some settings, in addition to using the international instruments which the state has accepted.

In taking legal action to challenge the legality of corporal punishment, the complaint is against the state. The final authority in the case depends on the national legal system. In some states, cases start at low-level courts and work upwards. For example, in the UK system of judicial review, a case is first heard at the high court, then the appeals court and then the Supreme Court.

4 See www.worldtradelaw.net/misc/viennaconvention.pdf


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Getting a legal opinion

An expert legal opinion is an extremely useful tool in cases where progress towards prohibition is not happening, or is being resisted. It is essential in challenging the legality of corporal punishment in the courts. Should this fail, it provides a firm foundation

For using international and/or regional human rights mechanisms (see below). It is also useful, in any state, to support the campaign for prohibition.

A lawyer who believes in children’s rights, and is fully supportive of the human rights imperative to prohibit all corporal punishment of children in law, should be commissioned to write the opinion. Experiences have shown that these shared values are important if the collaboration is to be successful.

The legal opinion should address, in detail:

• whether the law which allows corporal punishment in one or more settings is in conflict with: (i) the international human rights instruments which the state has ratified, including the UNCRC, and (ii) provisions in the Constitution and other domestic law

• How this conflict can be challenged in the national legal system and, if necessary, by using regional or international human rights mechanisms (see below). In some states, the incompatibility of domestic law with the Constitution, or with ratified international instruments, can be challenged in the abstract, without the need to identify a particular victim or victims of corporal punishment. In other states, it is necessary to bring the challenge on behalf of an individual or group whose rights have been breached as a result of provisions in domestic law which conflict with the Constitution and/or international law.

The opinion can usefully cite the many important and clear judgments made in high-level national courts in other states, which support the case for full prohibition. Most of these refer only to penal or school corporal punishment, but some also refer to the family home. Relevant judgments have been made

in Italy, Fiji, Nepal, Costa Rica, Kenya, South Africa and other states.5

Using the legal opinion

The primary purpose of a legal opinion is to enable legislation allowing corporal punishment to be challenged in the courts. However, in some cases, merely threatening to take legal action may be enough –

and much less costly in terms of money and time than actually going to court.

The decision to take the challenge all the way to the courts should follow a careful assessment of the risks of such action. In particular, what is the chance of losing the case and creating a bad precedent? Judges are usually quite old, and often very conservative in their views. Some are adept at using tortuous logic to try and justify corporal punishment, for the usual personal reasons. Bad judgments can be challenged, but it is critical to ensure that the advocates are very good and are using all the right arguments.

Legal action, or threatening it, should never be seen as an isolated strategy. It should be linked to other strategies, such as community involvement and children’s participation. This may include the development of a child-friendly version of the legal opinion, use of the media, etc.

Using international and regional human rights mechanisms

International and regional mechanisms (complaints/communications mechanisms) provide a means to appeal to, and bring pressure on, national governments.6 Generally, these mechanisms require that any possible use of national legal systems has been tried and has failed – the process known as ‘exhausting domestic remedies’. They nearly always require an actual victim(s) to make a case.7

5 For further details, including the texts of some of the

judgments, see www.endcorporalpunishment.org 6 The state must have ratified the relevant optional protocol or

made the appropriate declaration on ratifying the main

instrument. See Annex 7 7 For details on how to make a complaint using these

mechanisms, see

www2.ohchr.org/english/bodies/petitions/individual.htm and

www.crin.org/law/index.asp#co


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International complaints/communications mechanisms

There are complaints/communications mechanisms linked to the following international human rights instruments:

• International Covenant on Civil and Political Rights (Human Rights Committee)

•

• UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Committee Against Torture)

• UN Convention on the Elimination of All Forms of Racial Discrimination (Committee on the Elimination of Racial Discrimination)

• UN Convention on the Elimination of All Forms of Discrimination against Women (Committee to End Discrimination against Women)

There is now a campaign to have a complaints system under the UNCRC, by drafting a new Optional Protocol.8

Regional complaints/communications mechanisms

Some regional human rights instruments also have associated complaints/communications mechanisms:

• American Convention on Human Rights and the American Declaration of the Rights and Duties of Man (Inter-American Commission on Human Rights and Court, Inter-American Court of Human Rights)

• African Charter on Human and People’s Rights (African Commission on Human and People’s Rights, African Court on Human and People’s Rights)

• African Charter on the Rights and Welfare of the Child (African Committee of Experts on the Rights and Welfare of the Child)

• European Convention on Human Rights (European Court of Human Rights)

• European Social Charter and Revised Social Charter (European Committee of Social Rights).

8 Campaign details and petition is available on the Child

Rights Information Network website at

www.crin.org/petitions/petition.asp?petID=1007

There has been some success at challenging the legality of corporal punishment through the complaints mechanisms of some regions. The African Commission has issued one decision against the whipping of students in Sudan, declaring that the law which authorized it was not in compliance with the Charter. The European Court of Human Rights has issued a succession of decisions since 1973,

Progressively condemning corporal punishment in the UK. Under the ‘collective complaints’ system, which allows complaints to be submitted without the need

To identify an individual victim, the European Committee of Social Rights has found five states to be ‘not in conformity’ with the Charter because corporal punishment is not prohibited in all settings.

Conclusion

There is general consensus at international and regional level that the Convention on the Rights of the Child sets the standard for assessing whether or not a child’s rights have been violated. There is growing recognition of this in national high-level courts. Pursuing the use of the UNCRC as a legal instrument is perhaps the most important focus in the next stage of implementation of the Convention.


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ANNEX (viii): KEY RESOURCES

Key websites

Global Initiative to End All Corporal Punishment of Children (www.endcorporalpunishment.org)

Includes the following sections:

• Introduction – includes list of supporters of the Global Initiative’s aims, FAQs, latest developments

• Human rights and law – information relating to the Convention on the Rights of the Child and other international treaties and their monitoring bodies; CRC concluding observations relating to corporal punishment for all states (by session and by state); information on national high-level court judgments

• Global progress – analysis of legality of corporal punishment in every state and territory, organised regionally and globally; Global Initiative global progress report; individual state reports; information on countries which have prohibited

• Research – summaries of prevalence research, research into children’s own views and experiences, research into the effects of corporal punishment

• Resources – internet and other resources to support the promotion of non-violent discipline in the home and schools; links to other campaigns; downloads of Global Initiative reports etc

• Legal reform – legislative and other measures to support law reform (companion to the Legal Reform Handbook), includes a section on international, regional and national campaigns for prohibition

• Also Countdown to universal prohibition; Latest developments; RSS feed; Newsletter

The following key publications can be downloaded:

Global Initiative to End All Corporal Punishment of Children (2008), Ending legalized violence against children: Global report 2008, www.endcorporalpunishment.org/pages/pdfs/reports/GlobalReport2008.pdf

Global Initiative to End All Corporal Punishment of Children (2009), Prohibiting corporal punishment of children: A guide to legal reform and other measures (English, French, Spanish), www.endcorporalpunishment.org/pages/pdfs/LegalReformHandbook2008.pdf

Global Initiative to End All Corporal Punishment of Children and Save the Children Sweden (2009), prohibiting all corporal punishment of children: Frequently Asked Questions (English)

Contact [email protected]

Child Rights Information Network (CRIN) (www.crin.org/about/index.asp)

Convention on the Rights of the Child, directory of organizations, Violence against Children microsite for follow-up to the UN Secretary General’s Study (www.crin.org/violence/), CRINMAIL

Churches’ Network for Non-violence (www.churchesfornon-violence.org)

Links listed under different faith traditions and countries

Resources include: reports, examples of statements made by religious leaders, training materials, worship resources, submissions, etc

Forthcoming materials include: a starter pack for first engagement with religious leaders; exhibition and road show materials for download; in-depth information about different faith traditions.


Council of Europe (www.coe.int)

Regional campaign to promote law reform to prohibit corporal punishment of children in all (47) member states. Includes a variety of campaign materials and publications in various languages, including:


52

Council of Europe (2007), Abolishing corporal punishment of children: Questions and answers, Strasbourg: Council of Europe Publishing, www.coe.int/t/transversalprojects/children/violence/CPPublications_en.asp (English, French)

Council of Europe (2007), Information leaflet: Abolishing corporal punishment in a nutshell, Strasbourg: Council of Europe Publishing, www.coe.int/t/transversalprojects/children/violence/CPPublications_en.asp (English, French)

Epoch New Zealand (www.epochnz.org.nz)

Includes an archive of materials used during the successful campaign for prohibition in New Zealand, including briefings to MPs, submissions to government, media items and campaign materials.


Save the Children Sweden Southeast Asia and the Pacific Regional Office (http://seap.savethechildren.se)

Includes information on initiatives to end corporal punishment in the region, research reports and other relevant publications.

UN Committee on the Rights of the Child (www2.ohchr.org/english/bodies/crc/index.htm)

Information on past and forthcoming sessions, general comments, links to the UN Secretary General’s Study on Violence against Children.

The following General Comments can be downloaded from www2.ohchr.org/english/bodies/crc/comments.htm:

No.8 (2006) on “The right to protection from corporal punishment and other cruel or degrading forms of punishment (articles 19, 28(2) and 37, inter alia)” (English, French, Spanish)

No.1 (2001) on “The aims of education” (English, French, Spanish)

No.10 (2007) on “Children’s rights in juvenile justice” (Arabic, Chinese, English, French, Russian, Spanish)

Note: The Committee’s concluding observations and recommendations can be found in full on the Committee’s website; extracts relating to prohibition and elimination of corporal punishment are available on the Global Initiative website www.endcorporalpunishment.org.

Other useful publications

Article 19, journal of the Southern African Network to end corporal punishment, www.communitylawcentre.org.za/Childrens-Rights

Durrant, J. E. (2000), A Generation without Smacking: The impact of Sweden’s ban on physical punishment, London: Save the Children (http://www.endcorporalpunishment.org/pages/pdfs/GenerationwithoutSmacking.pdf)

Gershoff, E. T. (2002), “Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical Review”, Psychological Bulletin, vol.128, no.4, pp. 539–579

Inter-Parliamentary Union & UNICEF (2007), Eliminating Violence Against Children (Handbook for Parliamentarians No. 13), www.ipu.org/english/handbks.htm (English, French, Arabic)

Kapoor, G. & Owen, S. (2008), Towards the universal prohibition of all violent punishment of children: Report of the global workshop, Bangkok, March 2008, Save the Children Sweden

Owen, S. (2009), Prohibiting all corporal punishment in Southeast Asia and the Pacific: Report of the regional technical workshop, Bangkok, March 2009, Save the Children Sweden

Sheahan, F. (2009), Advancing Children’s Rights: A Guide for Civil Society Organizations on how to engage with the African Committee of Experts on the Rights and Welfare of the Child, Plan & Save the Children Sweden


53

South African Department of Education (2000), “Alternatives to Corporal Punishment: The Learning Experience” (http://www.education.gov.za/dynamic/dynamic.aspx?pageid=329&catid=10&category=Reports&legtype=null)

Swedish Ministry of Health and Social Affairs/Ministry for Foreign Affairs (2001), Ending Corporal

Punishment – Swedish Experience of Efforts to Prevent All Forms of Violence against Children – and

the Results, Stockholm: Ministry of Health and Social Affairs/Ministry for Foreign Affairs

(http://www.endcorporalpunishment.org/pages/pdfs/ending.pdf)

Wood, B. et al. (2008), Unreasonable Force: New Zealand’s journey towards banning the physical punishment

of children, Save the Children New Zealand

(www.savethechildren.org.nz/new_zealand/nz_programme/section_59/unreasonable_force.pdf)

Other summary briefings available: 1: Understanding the need for prohibition; 2: Reviewing current law 3: Drafting prohibiting legislation; 4: Building a national strategy

5: Working with Government and Parliament Further information at www.endcorporalpunishment.org, email [email protected].


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ANNEX (ix): KEY RESOURCE PERSONS

� Mr. Peter Newell, coordinator of the Global Initiative to End All Corporal Punishment against Children and former member of the Editorial Board of the UN Secretary General’s Study on Violence against Children;

� Dr. Sharon Owen, research coordinator of the Global Initiative to End All Corporal Punishment against Children;

� Chris Dodd, coordinator of Churches’ Network for Non-violence and Inter-Faith Liaison. � Mali Nilsson, global advisor on physical and humiliating punishment of Save the Children Sweden

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