COURTS in various jurisdictions have held that corporal punishment as a judicial sentence is unconstitutional.
One such case is the decision of the Constitutional Court of South Africa is the case of The State vs Henry Williams et al (1995). The Constitutional Court consisted of 11 judges.
This was a consolidation of five different cases in which six juveniles were convicted by different magistrates and sentenced to whipping pursuant to Section 294 of the Criminal Procedure Act.
The matter was referred to the Constitutional Court by the full bench of the Cape of Good Hope Division of the Supreme Court. The case referred to whether the sentence of juvenile whipping was consistent with the provisions of the constitution. Section 10 of the South African constitution guarantees to every person “the right to respect for protection of his or her dignity”.
Section 11(2) provides that “no person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subjected to cruel, inhuman or degrading treatment or punishment”.
In a unanimous judgment, the court declared juvenile whipping unconstitutional on the ground that it violated dignity and it also violated the right not to be treated or punished in a cruel, inhuman or degrading manner.
In a comprehensive judgment, delivered by Langa J, the court, among other things, looked at the history of juvenile whipping; the relevant provisions of the constitution; international treaties and case-law, and the international opinion on corporal punishment.
Langa J said: “Section 35(1) of the constitution provides expressly that the rights entrenched in it, including Sections 10 and 11(2), shall be interpreted in accordance with the values which underlie an open and democratic society based on freedom and equality. In determining whether punishment is cruel, inhuman or degrading within the meaning of our constitution, the punishment in question must be assessed in the light of the values which underlie the constitution.
“The simple message is that the state must, in imposing punishment, do so in accordance with certain standards. These will reflect the values which underpin the constitution; in the present context, it means that punishment must respect human dignity and be consistent with the provisions of the constitution.
“There is unmistakably a growing consensus in the international community that judicial whipping, involving as it does the deliberate infliction of physical pain on the person of the accused, offends society’s notions of decency and is a direct invasion of the right which every person has to human dignity. This consensus has found expression through the courts and legislatures of various countries and through international instruments. It is a clear trend which has been established.”
Punishment as sentence
The State vs Henry Williams et al was concerned with the constitutionality of corporal punishment of juveniles as a judicial sentence. However, the decision also seems to have had an effect on corporal punishment in schools, which was abolished in South Africa in 1996.
South Africa is a signatory to the United Nations Convention On The Rights Of The Child. Most people interpret this treaty as prohibiting corporal punishment of children in schools.
Surely the time has come when we must seriously reflect on this issue of corporal punishment and take action consistent with the treaty obligations that we have committed ourselves to implement.
The Caribbean is one of the few regions in the world where corporal punishment in schools is still legal.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com
