LAST week, we briefly looked at International Women’s Day (IWD), celebrated each year on March 8 since 1911. This year’s theme was “Accelerate Action”.

 We said IWD was a day to celebrate the socioeconomic, cultural and political achievements of women, without forgetting to address their plight for it is only through this that women can live fully.

Today, I invite you to briefly look at both school corporal punishment, and corporal punishment provided for in the Corporal Punishment Act. The Legal and Human Rights Centre (LHRC) and TenMET recently held a joint press conference during which they decried the outcomes of school corporal punishment. They found that instead of leading to correction, it perpetuated physical and psychological pain and deaths.

Considering the negative outcomes of school corporal punishment, the two NGOs called for the amendment of the Education Act, 1978 and prohibition of school corporal punishment. In light of this, they proposed alternative disciplinary measures or corrective punishment that respects schoolchildren’s rights and welfare, instead of corporal punishment.

In relation to corporal punishment, the African Court on Human and Peoples’ Rights (AfCHPR) based in Arusha received an application No 018/2017 from Yassin Rashid Maige (applicant) against United Republic of Tanzania (the respondent state). The judgment of this application was delivered on September 5, 2023.

Although on November 21, 2019, the respondent state deposited, with the African Union Commission, an instrument withdrawing the declaration on the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, the AfCHPR held that the withdrawal had no bearing on pending cases and new cases filed before November 22, 2020, the day on which the withdrawal took effect, being a period of one year after its deposit. In relation to this, the AfCHPR referred to the case of Andrew Ambrose Cheusi v United Republic of Tanzania (judgment) (June 26, 2020) 4 AfCLR 219, § 38.  

The applicant, among other things, was charged with the offence of armed robbery contrary to sections 285 and 286 of the Penal Code (Chapter 16) in Urambo District, Tabora, on August 4, 1999. He was convicted on September 9, 2003 together with one co-accused person and were sentenced to 30 years in prison and 12 strokes of the cane.

The accused filed an appeal before the High Court of Tanzania in Tabora, but it was dismissed. However, the High Court upheld the co-accused person’s appeal and the applicant was released from prison. Then, he filed an appeal to the Court of Appeal of Tanzania in Mwanza, but in its judgment of April 19, 2013, it dismissed his appeal. On May 11, 2013, he filed an application for review of the Court of Appeal’s decision, but at the time of filing the application before the AfCHPR no final decision had yet been made by the Court of Appeal.

Before the AfCHPR, the applicant alleged among other things, that the respondent state had violated his rights protected in the Constitution of the United Republic of Tanzania, notably, Article 13(6)(e), which prohibits torture or inhuman or degrading punishment or treatment. This was in relation to corporal punishment he was subjected to.

Article 5 of the African Charter on Human and Peoples’ Rights provides that: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

The AfCHPR noted that the prohibition of torture, cruel, inhuman and degrading treatment or punishment was to be interpreted as widely as possible to encompass the widest possible array of physical and mental abuses and must include “actions which cause serious physical or psychological suffering (or) humiliate the individual or force him or her to act against his or her will or conscience”.

So, it was observed that it was the severity of the mental or physical pain inflicted on a person that made conduct to amount to cruel, inhuman and degrading treatment or punishment. In relation to corporal punishment, the AfCHPR held that “[it] is inconsistent with the prohibition against torture, and cruel, inhuman or degrading treatment or punishment enshrined…” Furthermore, the AfCHPR said the United Nations Human Rights Committee had concluded that the prohibition of torture and cruel, inhuman or degrading treatment or punishment contained in Article 7 of the International Covenant on Civil and Political Rights should be extended to corporal punishment, “including excessive chastisement ordered as punishment for a crime, or as an educative or disciplinary measure”.

In relation to the applicant, the AfCHPR held that the existence of a law authorising corporal punishment created the likelihood that the punishment would operate to enhance his mental anguish and thus further undermine his dignity. In the circumstances, it held that the applicant’s sentence to be caned 12 times violated his right to dignity as provided under Article 5 of the Charter.

In relation to the violation of Article 5 of the Charter and in light of the Court’s findings, the AfCHPR ordered the respondent state to remove corporal punishment from state laws, including but not limited to the Penal Code, the Criminal Procedures Act and the Corporal Punishment Act to make them compliant with the prohibition of torture, cruel, inhuman or degrading treatment or punishment in Article 5 of the Charter.

Today’s quote: “Corporal punishment is as humiliating for him who gives it as for him who receives it; it is ineffective besides. Neither shame nor physical pain have any other effect than a hardening one.” – Ellen Key.

•        The author is a Dar es Salaam-based lawyer. He can be reached at t22magobe@gmail.com