CORPORAL PUNISHMENT IN SCHOOL AND THE POSITION OF NIGERIAN LAW

The trouble with children begins with the very definition of a child in law which accounts for corporal punishments in schools and in homes. In Nigeria although a child attains maturity when he attains the age of 18, under different circumstances the minimum age for the purpose of punishing juvenile offences is different. Under the criminal Code, a child under the age of 7 is not capable of being criminally responsible for an act or omission. A person under the age of 12 is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission, he had capacity to know that he ought not to do the act.

In our traditional societies, criminal liabilities and even civil responsibilities are clearly limited to adults of the age of discretion. At that age, the family is seen as responsible for the deviant behaviour of their wards hence the African belief that children must be disciplined by way of corporal punishment.

The unwritten convention was that every adult had the responsibility to correct an erring juvenile and instill in him requisite rectitude at that age. In the old world civilization, it was not that simple to answer the questions; who is a child, when does childhood cease or begin?

A child according to the Oxford Advanced Learner’s Dictionary is a young human who is not yet an adult or a person who is strongly influenced by the ideas and attitudes of a particular time and person.

Convention on the Rights of the Child (CRC) 1989 (ratified by many countries including Nigeria). Article 1 of CRC defines a child as every human being below the age of 18 years unless under the law applicable to the child maturity is attained earlier.

Age limit is significant, in that it regulates many sectors of the child’s life:

• when he can be admitted to school
• when he can leave school
• when he can marry
• whether he can vote
• when he can be treated as an adult by the criminal justice system
• when he can work
• when he can be admitted into the army
• when he can attain freedom to be independent of him/her parents

There are several grey areas as occasion by several legislations on the issue of majority of a child.

The Labour Act in section 91 defines a child  as person under twelve years.

The Criminal Code Act for the purpose of punishing for the unlawful killing of a child, defines a child capable of being killed as when the child is completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not. Irrespective of the definition of a child, his rights are protected under these legislations from any form of cruel, abusive, or violent treatment.

Minimum age for sexual activity under the Child’s Right Act 2003; the age of legal majority for all purposes irrespective of gender has been fixed at eighteen (18) years including the issue of consent to marriage or sexual activity.  The law is not in respect of heterosexual and homosexual activities.

Minimum age of marriage on the minimum age of marriage for women and men, the CRA 2003 prohibits marriage by any person below the age of eighteen (18) years.

Section 23 (5) For the purpose of protecting children against child pornography defined a child in this section that, the term “child” or “minor” means a person below 18 years of age.

In recent years, international human rights agencies have been pushing for tougher legislation around the world to prevent children from being the subject of undue violence, in any form.

As far back as 1989 at the Convention on the Rights of the Child at the United Nations, countries worldwide came together to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.”

Section 55(1) (d) of the Penal Code of Northern Nigeria provides that an assault by a man on a woman is not an offense if they are married, if native law or custom recognizes such “correction” as lawful, and if there is no grievous hurt.

Section 55. Correction of Child, Pupil, Servant or Wife

(1) Nothing is an offence which does not amount to the infliction of grievous hurt upon any persons which is done:

(a) by a parent or guardian for the purpose of correcting his child or ward . . .
(b) by a schoolmaster for the purpose of correcting a child . . .      
(c) by a master for the purpose of correcting his servant or apprentice . . .
(d) by a husband for the purpose of correcting his wife, such husband and wife being subject to any native law or custom in which such correction is recognized as lawful.

Section 295 of the Criminal Code Act. The section reads in part:  

A blow or other force, not in any case extending to a wound or grievous harm, maybe justified for purpose of correction as follows:

A father or mother or guardian, or a person whom he or she entrusts permanently or temporarily with the governance or custody of his her ward or his or her own authority or correction, including the power to determine in what cases correction ought to be inflicted; and such a delegation shall be presumed, except in so far as it may expressly withheld, in case of school master or a person acting as a schoolteacher, in respect of a child or ward.

Exegesis of the provisions

Blow: According to Webster’s Dictionary, a blow is a forcible stroke delivered with a part of the body or an instrument. That includes a hard stroke given with open or closed hand, a stick or other weapon. Pulling or boxing of the ear, slap, push, shove, punch with fist, cuff, smack or kick with foot on any part of the body comes within meaning blow.

In the context of our discussion, any of these forms of corporal punishment maybe administered by the teacher on a pupil without incurring criminal liability so long as the child does not suffer a wound or grievous harm.

This is unsatisfactory. Excessive corporal punishment is inextricably linked with indignity  FIDELIS (1938) 3 ALL ER517 a Schoolmistress was held liable for inflicting a box which caused the ear deafness of the pupil.  Children should be accorded dignity not any less than adult are. A slap on the face for instance, is insulting and deliberately humiliating

Pulling or boxing of the ear, punching with a fist or a hard slap can cause grievous harm which is a gross violation of the right of dignity of a child. There is an urgent need to reform this obnoxious provision to accord the UN Convention on the Rights of the Child.

Article 19 which protect children against all forms of violence is in tandem with the SDG 2030 agenda that all learners acquire the knowledge and skills needed to promote sustainable development, including, among others, through education for sustainable development and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and NON-VIOLENCE, global citizenship and appreciation of cultural diversity and of culture’s contribution to sustainable development.

Note that Section 42(1) of the Constitution of Federal Republic  of Nigeria 1999 as amended: A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person: -(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject . .

Justification for Advocacy against Corporal Punishment

Constitution of the Federal Republic of Nigeria 1999 as amended

Section 17(3) (f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that the States shall direct its policy towards ensuring:

That children and young persons are protected against any form of exploitation whatsoever, and against any moral or material neglect.

The import of this section is that every child shall be entitled to dignity of human person

Again, the constitution of Nigeria 1999 (as amended) in section 34 provides that every individual (children) inclusive is entitled to respect for the dignity of his person therefore:

1. No person be him a child adult or woman shall be subjected to torture or to inhuman or degrading treatment;
2. No person shall be required to be held in slavery or servitude;
3. No person shall be required to perform forced or compulsory Labour

The constitution being the supreme law in Nigeria does not place any restriction on the protection the rights of any body.

Nigeria’s Child’s Right Act 2003 Cap C 50 Laws of Federation

The CRA 2003 in Sections 21- 40 provides for the protection of children against discriminatory, harmful and exploitative practices.  These include

• the prohibition of child marriage,
• child betrothal
• infliction of skin mark
• abduction
• force,
• exploitation
• hazardous child labour,
• child hawking,
• begging for alms,
• prostitution
• unlawful sexual intercourse
• other forms of sexual abuse and
• Exploitation prejudicial to the welfare of the child.

This has also pave way for the justification for advocacy against corporal punishment.

Violence against Persons (Prohibition) Act, 2015

Section 44 of VAPPA empowers the National Agency for the Prohibition in Person, other related Matters to administer the provisions of this Act and collaborates with the relevant stakeholders including faith based organization. This law seeks to protect children and women more than male adult hence the need for State to legislate on it.

Inflicting Physical Injury on a Person (Children)

Section 2(1) of VAPPA provides that any person who causes or inflict physical injury on another person by means of any weapon, substance object, commits an offence and is liable on conviction to a term of imprisonment not exceeding 5 years or a fine not exceeding N100,000 or both.

Section 2 (2) (3) (4) of the Act provides that any person who attempt to commit the offence contain in section 2(1) or incites, aids, abets or counsels another person to commit the offence in subsection (1) or any person who receives or assists another who to his knowledge commits an offence under subsection (1) are all liable on conviction to a fine of N200, 000.00 or a term of imprisonment not exceeding 3years. The court may award compensation to the victim as it may deem fit in all circumstances see section 2(5).

Section 3 of the Act provides that a person who coerces another to engage in any act to the detriment of that other person’s physical or psychological well-being, commits an offence and is liable on conviction to term of imprisonment not exceeding 3years.

Section 4(1) of the Act provides that a person who willfully or knowingly places a person in  fear of physical injury commits an offence and is liable to a conviction to a term of imprisonment not exceeding 2 years or a fine not exceeding N200,000.00 or both.

Section 4(2) of the Act provides that who attempts to commit the offence in subsection (1) and is  liable on conviction to a term of imprisonment not exceeding 1year or to a fine not exceeding N200,000.00 or both.

Section 4(3) (4)  provides that a person who, aids, abets or counsels another person to commit the offence in subsection (1) or any person who receives or assists another who to his knowledge commits an offence under subsection (1) are all liable on conviction to a fine of N200, 000.00 or a term of imprisonment not exceeding 1years

How teachers should be able to punish unruly pupils

1. Teachers have the legal power to discipline pupils misbehaving outside school – including punishing them for fighting, bullying or being rowdy on buses or trains.
2. Schools should draw up a clear framework on behaviour. Reasonable punishments include one-to-one admonishment, removal from class, banning access to computers, banning pupils from school trips and forcing them to carry out a “useful task” in the school.
3. Teachers can legally confiscate items from pupils – and dispose of them – including mobile phones and MP3 players if used during classes and baseball caps if pupils refuse to take them off.
4. Staff have powers to search pupils’ clothes, bags and lockers for weapons and powers will be extended to alcohol, drugs and stolen goods.
5. Teachers can use “reasonable force” to restrain pupils. Again Teacher must be careful on the kind of force they apply in the name restraining pupils, the force should not include boxing, blowing, punching, canning on the head or on any sensitive organ.
6. Schools should consider setting up “withdrawal rooms” in which children are placed for short periods to calm down away from classmates.
7. Parents can be held accountable with parenting contracts if their children repeatedly misbehave at school. Fixed penalty fines of N500 and N1000 can be issued for parents of children playing truant.

TIPS/ RECOMMENDATIONS FOR STATES

1. Strengthen national and local commitment and action

We recommend that all States develop a multi-faceted and systematic framework to respond to corporal punishment against children which is integrated into national planning processes. A national strategy, policy or plan of action on corporal punishment against children with realistic and time-bound targets, coordinated by an agency with the capacity to involve multiple sectors in a broad-based implementation strategy, should be formulated. National laws, policies, plans and programmes should fully comply with international human rights and current scientific knowledge.

2. Prioritize prevention

We recommend that States prioritize preventing corporal punishment against children by addressing its underlying causes. Just as resources devoted to intervening after violence has occurred are essential, States should allocate adequate resources to address risk factors and prevent corporal punishment before it occurs.

3. Policies and programmes

Policies and programmes should address immediate risk and factors such as lack of parent child attachment, family breakdown, abuse of alcohol or drugs, and reducing access to guns and other weapons. In line with the sustainable development goal, attention should be focused on economic and social policies that address poverty, gender and other forms of inequality, income gaps, unemployment, urban overcrowding, and other factors which undermine society.

4. Promote non-violent values and awareness-raising

We recommend that States and civil societies should strive to transform attitudes that condone or normalize violence against children, including stereotypical gender roles and discrimination, acceptance of corporal punishment, and other harmful traditional practices. States should ensure those children’s rights are disseminated and understood, including by children. Public information campaigns should be used to sensitize the public about the harmful effects that violence has on children.

5. Enhance the capacity of all who work with and for children 

We recommend that the capacity of all those who work with and for children to contribute to eliminate all violence against them must be developed. Initial and in-service training which imparts knowledge and respect for children’s rights should be provided. States should invest in systematic education and training programmes both for professionals and non-professionals who work with or for children and families to prevent, detect and respond to violence against children.