Re: Spare the rod and spare the child in South Africa And Ghana: Answers to the hard questions by Martinson Kwadjo Yeboah Bediako

In a simple, provocative essay, a learned colleague asked hard questions, which many Ghanaians will either not allow to be inquired of them or do not have any reasonable justification, which accord to modern concepts of rights. Should children be beaten or whipped with the aim of correcting them? Is the law that seems to provide a justification for such use of force indeed justifiable? Or, does it sin against the constitution and the human rights framework developed in this country, for which we are often praised?

I intend to discuss the prohibitions against degrading and inhuman punishments as well as the positive declaration of dignity in the Constitution, 1992, vis a vis the justification of the use of force against a child as provided for in section 41 of the Criminal and Other Offences Act, 1960, Act 29. This discussion will also be made within the context of the Children’s Act, which establishes an impressive albeit generally unenforced collection of rights for the Ghanaian child. I ultimately seek to provide an answer, or a set of answers, to the questions previously asked, in the Ghanaian context. Resort will not be made to principles of international law as those have been sufficiently laid out in the article by my learned colleague.

It goes without saying that the child constitutes a person whose dignity is inviolable and shall not under any circumstance be subject to torture or other cruel, inhuman or degrading treatment or punishment under article 15. The Children’s Act affirms this position with regards to children under section 13 and goes on to include cultural practices which dehumanize or is injurious to the physical and mental well-being of a child as being prohibited.

The term dignity sadly remains undefined in our jurisprudence, with the courts opting for a case by case approach when an act or enactment is said to undermine human dignity. Under section 41 of the Act 29, a blow or force used by the parent or guardian is justifiable if it was done to correct his child or ward who is below the age of sixteen years for misconduct or disobedience to a lawful command. What amounts to misconduct or a lawful command is not elaborated upon, thereby dangerously placing the power of correction in the subjective views of parents.  Truly, the fact that power may be delegated is deplorable. Apart from the inherent limitations of necessity and proportionality, the same section provides that the correction will not be justified where it is unreasonable in kind or in degree considering the age and physical and mental condition. Also, it will not be justified where in the case of a person who, by reason of tender years or otherwise, is incapable of understanding the purpose for which it is inflicted. These further limitations are reproduced in the Children’s Act.

From the law above, the following principles are apparent. A child, legally defined as being below the age of 18, cannot be the object of the infliction of force once he or she is above the age of sixteen. Any such use of force may ground a host of offenses against the person and may entitle the child to civil remedies in assault, battery or even trespass to person. The repercussions of the rule if enforced with respect to the Senior High School system in Ghana – of which the average age at the point of admission is 16 – cannot be imagined.

Under Act 29, the same justification for the use of force against children is used to justify force used by masters against apprentices or servants under the age of sixteen. Firstly, in accordance with modern trends, a master-servant relationship, as defined in the colonial era with uncomfortable connotations of slavery, cannot exist. Secondly, under the Children’s Act, a child may only be an apprentice or be employed when she is at least 15 years.  The scope of section 41(1)(b) is therefore rendered almost nugatory and has no place in our laws.

Finally, whereas Act 29 makes direct mention of blows and force against children, the Children’s Act simply uses the term “correction”. Act 29 was enacted in early post-colonial Ghana, which boasts of several statutes lifted from old English laws and simply passed without comprehensive revision. Although over the years, changes have been made to make Act 29 conform with current standards, there is much more to be done. On the other hand, the Children’s Act is recent and conforms with the international standards as outlined in the United Nations Convention on the Rights of the Child. Thus, it may be reasonably concluded that the position in the latter is more desirable and applicable.

That position makes mention of ‘correction’, which may include all forms of alternate ways of ensuring or encouraging discipline among children, short of ‘cultural practices which dehumanize or is injurious to the physical and mental well-being of a child’. To be blunt, the use of force against children in the form of whipping or beating constitute a cultural practice which dehumanizes them, within the meaning of the Children’s Act. The reasons for this are numerous; the immense physical pain inflicted on children, the emotional damage ensuing from such inflictions of pain and the mistaken notion that to inflict pain on others is to show them love, which is indoctrinated into several persons, and may lead to domestic violence in their adult lives.

Many a person will now ask of the corrections which may be reasonably used to ensure the dignity of children, when whipping is taken out of the picture. The duty herein lies on stakeholders such as the Ghana Education Service and the Police to prescribe humane corrections which may be used to encourage compliance to reasonable rules and commands. Surely, the limitations regarding the physical and mental capacity of the child to understand the correction will not be disregarded.

Thus, it is settled. The use of force against children below the age of sixteen in the form of whipping sins against their right to dignity to the extent that it causes pain and suffering. Laws justifying such use of force should not exist in the Ghanaian context if we are indeed to boast of an expansive, thorough and modern human rights landscape. It is time children were saved from a thunderous beating from emotionally frustrated and abusive parents.