Spare the rod and spare the child in South Africa and Ghana: Thoughts and questions without answers by Prosper Batariwah

The Ghana Education Service has asked teachers to stop beating children. To many people, this was a very sad development indeed. Why? ‘It will only spoil the children’. The argument was that beating children up was a sure way of beating discipline into children. Whether this discipline which was pressed down, running over and overflowing has an everlasting inner source is another question. Others felt it was just about time we stopped beating children. Religious leaders fumed, teachers grumbled and students leaped for joy like Kwame Nkrumah announcing independence. I do not intend to carry out a detailed, and perhaps exhaustive discussion about what the law is and what the law is not. These are just passing thoughts and passing comments. In fact, this presents more unanswered questions than answers.

On whipping children, the trend that is now sexy the world over, is that it is cruel, inhuman and degrading punishment to beat children up. It is the thinking that it offends the human dignity of persons, whether adults or children. This was the position taken in the South African case of The State v. Henry Williams and Ors. The court held that it was simply wrong to prescribe whipping as a form of punishment for juveniles. This was in line with the position in countries such as the United Kingdom, the United States and Namibia. The habit of courts in following the trend in other jurisdictions when it comes to human rights matters lends credence to the universalism of human rights. After this case South Africa passed the South African Schools Act, 1996 which in a way enacted the position of the court into law. Then came a rather interesting constitutional challenge. In Christian Education South Africa v. Minister of Education, the appellant was a Christian group that managed schools responsible for about 14,500 pupils. They took exception to the law preventing teachers from inflicting corporal punishment. It was argued, relying on among other scriptural passages, Proverbs 22: 6(Train up a child in the way it should go and when he is old he will not depart from it), Proverbs 22: 14(Foolishness is bound to the heart of a child, but the rod of correction shall drive it far from him). It was further argued relying on Deuteronomy 6:4 to 7(“Hear, O-Israel! The Lord is our God, the Lord is one! And you shall love the Lord your God with all your heart and with all your soul and with all your might. And these words which I am commanding you today, shall be on your heart; and you shall teach them diligently to your sons and shall talk of them when you sit in your house and when you walk by the way and when you lie down and when you rise up.”) that parents had the biblical injunction to discipline their children which they could thus delegate to teachers. Simply put, the bible was the authority to beat children up. The court disagreed. While admitting that there was a biblical injunction to so do, there was no biblical injunction to delegate that responsibility. Does it mean parents can only beat their children up when they come home? To what extent does this decision change the earlier position in The State v Henry Williams and Ors?

In Ghana however, we really do not have a judicial decision which has pronounced on this matter. Nevertheless, there are laws on punishment. The Constitution itself proscribes punishment which is degrading, cruel and inhumane. It appears these terms are very attractive to constitutional drafters worldwide. But wait, section 41 of the Criminal Offences Act, 1960 provides that people in certain positions of power may justifiably use force to correct those under their power for misconduct. This includes parents on their children and masters on their servants. The situation then becomes deplorable when we find out that this duty can be delegated. How grave is our confusion when we come across section 13 of the Children’s Act, 1998 (Act 560) which essentially protects children from torture and degrading treatment. It however allows for the correction of children, provided the correction is justifiable, reasonable and tailored to fit the age, physical and mental condition of the child. The child should also be capable of understanding the reason for the punishment.  Does whipping children satisfy the requirements of section 41 of Act 29 and section 13 of Act 560? Or perhaps section 41 of Act 29 and section 13 of Act 560 can be interpreted to make whipping unlawful? If the answer to the former is yes, are section 41 of Act 29 and section 13 of Act 560 consistent with article 15 of the 1992 Constitution in light of the global movement towards perceiving whipping as cruel, inhumane and degrading treatment?

The answers to my questions? I don’t know. Maybe it is a matter of interpretation.