Zimpapers Logo

Daniel Nemukuyu Harare Bureau—
THE Constitutional Court has provisionally set aside a High Court order outlawing caning of juveniles as a form of punishment. Chief Justice Godfrey Chidyausiku (pictured top) said while the case awaited hearing by the nine-member bench, magistrates could impose corporal punishment on juvenile offenders.

The landmark case is also expected to determine whether or not parents are allowed at law to beat up their naughty children. It will also settle the matter of whether or not teachers are allowed at law to discipline pupils through some beating.

The Chief Justice and nine other judges yesterday deferred the constitutional challenge after realising that all the parties involved in the case were pushing for imposition of corporal punishment on children.

In constitutional matters of that nature, the Chief Justice said, there was need for the court to at least hear some opposing argument before making a proper decision.

“The court observes from submissions made by all the parties that there is an agreement. The court will be happier if it will hear some opposing views before making a determination. The matter is postponed sine die (indefinitely),” the Chief Justice said.

“For the avoidance of doubt and for the guidance of the subordinate courts, the order of Justice (Esther) Muremba is suspended.

“The law remains as it was before the issuance of the High Court order.”

Harare lawyer and politician Tendai Biti, who was in the same court for a different matter, volunteered to file opposing arguments protecting children from assault.

Justice Muremba earlier this year ruled that corporal punishment was unconstitutional and had no place in the country’s statutes because it was inhuman and degrading.

Justice Muremba ruled against sentencing under-age offenders to strokes of the cane while upholding the conviction of a 15-year-old boy of rape.

The boy had been sentenced to receive moderate corporal punishment of three strokes with a rattan cane by a magistrate, but appealed against the sentence at the High Court.

He was sentenced on September 26 last year on the strength of Section 353(1) of the Criminal Procedure and Evidence Act which allows for the imposition of corporal punishment.

Justice Muremba said her interpretation of Section 53 and 86 of the new Constitution brought her to the conclusion that corporal punishment was now unconstitutional.

The Constitutional Court has invited Advocate Thabani Mpofu to assist with arguments as a friend of the court (amicus curiae). Adv Mpofu said caning of children whether in school, home or at court, was for the good of the children.

“It’s a form of treatment which is meant for the greater good of the recipient,” he said.

“To the criminal, it means they’ll not be debased by being required to share a cell with a 40-year-old who might molest them.

“To a child in a home, it means being set on the dignified path and having one’s future secured.

“To a child in school, it means being provided with an opportunity to represent other people in court, that having been the exact effect of caning on present counsel and many others. It must be celebrated,” said Adv Mpofu.

He said the judge of the High Court was wrong in holding that corporal punishment was inhuman.

“Dogs don’t receive corporal punishment, it’s human beings who do. This is a form of punishment or treatment which is meant for human beings. It’s as old as the world itself and it can’t seriously be argued that the treatment is inhuman,” Adv Mpofu argued.

“What’s inhuman is to tell people that they can’t discipline their children. The world would surely come to an end,” he said.

Adv Mpofu added that even religiously, corporal punishment was an acceptable method of disciplining children. “Religiously, it’s to ensure that children grow in favour of both God and man. The pedagogies employ the method in ensuring that children reach their potential and aren’t distracted in their studies. That can’t be cruel and it can’t be heartless. That can’t be spiteful,” he said.