2.5 The law and the child’s right to protection from violence and abuse
Article 19 of the UN Convention and Article 16 of the African Charter define violence as including all forms of:
- physical or mental violence
- injury or abuse
- neglect or negligent treatment
- maltreatment or exploitation, including sexual abuse.
Despite this right to protection in these articles, there is significant evidence of violence against children across East Africa. Widespread social and cultural attitudes and practices condone violence as a way of disciplining children. Violence and abuse is committed primarily by those closest to the children – parents, family members, neighbours and peers.
In addition, the UN Study on Violence against Children (2006) revealed that children in Africa run a high risk of violence in many different settings, including child-centred organisations. Children receiving social, educational, health and other services are not adequately protected from abuse and exploitation by staff and associates, as well as by the community at large.
It is important to note that the Committee on the Rights of the Child has stressed that no violence against children is acceptable, including corporal punishment.
In response to their international obligations under both the UN Charter and the African Charter, all four countries have adopted provisions that incorporate into national laws the right of children to protection from violence, although the scope of the provisions varies.
The Constitution recognises the right of every person, including children, to protection against bodily harm and to protection against cruel, inhuman and degrading treatment and punishment. It also specifically recognises the rights of every child to be free of corporal punishment or cruel and inhuman treatment in schools and other institutions responsible for the care of children. Legislation also prohibits forms of harmful traditional practice, such as uvula and tonsil scraping and female genital mutilation.
The Children Act states that:
- A child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person.
- Any child who becomes the victim of abuse shall be accorded appropriate treatment and rehabilitation in accordance with such regulations as the Minister may make.
- No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.
The Constitution further provides that everyone, including children, has the right not to be subjected to corporal punishment. This provision applies to corporal punishment in the home, in schools, in institutions and as a sentence for a crime.
The Law of the Child states that a person shall not subject a child to torture, or other cruel, inhuman punishment or degrading treatment, including any cultural practice that dehumanises or is injurious to the physical and mental well-being of a child. No correction of a child can be justified if it is unreasonable in kind or in degree, according to the age, physical and mental condition of the child, and no correction can be justified if the child is incapable of understanding the purpose of the correction. However, no explicit provisions yet exist to prohibit corporal punishment in the home, in school or in other institutions for the care of children.
The Children Act states that any person having custody of a child shall protect the child from discrimination, violence, abuse and neglect. It also bans subjecting a child to social or customary practices that are harmful to their health. A ministerial circular (2006) and the Guidelines for Universal Primary Education (1998) state that corporal punishment should not be used in schools, but there are no provisions in law prohibiting corporal punishment in all settings.
You will see from this brief overview of the laws that while all the countries in East Africa have introduced some protections for children, not all of them explicitly prohibit all forms of violence against children.
Activity 2.3: Common abuses of children’s rights
Look at the list below. Which of these practices do you think are common in your country? Choose a number between 1 and 5 that represents how common you think the practice is, where 1 is common and 5 is rare. If you are working in a group discuss your experiences that led to your decision.
Bearing in mind the practices you think are common in your country, why do you think children’s rights to protection from violence and abuse continue to be violated?
|Corporal punishment in schools using a stick||1||2||3||4||5|
|Children denied food in school as a punishment||1||2||3||4||5|
|Punishment at home using a stick||1||2||3||4||5|
|Girls/young women undergoing genital mutilation||1||2||3||4||5|
|Sexual abuse of a child by a family member||1||2||3||4||5|
From the information you have been given, you can see that the laws in Ethiopia, Kenya, Tanzania and Uganda all prohibit physical abuse, corporal punishment in school and harmful traditional practices. Yet you may be aware of these practices continuing. While the extent of these practices will vary between communities there is clear evidence that all of these issues are widespread.
Why do these practices continue? There is often insufficient attention given to the implementation and enforcement of legislation. Too often, individuals and communities are unaware of the law. Even if they are aware of the law, they may not know how to seek protection or redress against violations of their rights.
In some communities there is deep resistance to change. It is important for governments to work with communities to raise awareness and to help communities understand why these rights are important. Communities and parents need to understand not only why children need greater protection but how to, for example, introduce alternative practices and rites of passage that are not harmful to the child.
This is not only the responsibility of government; health practitioners too can play a role in raising awareness of the law and challenging practices, as the next section will make clear.
A 12-year-old pupil at a Kampala school and his family are battling school authorities after he lost a tooth to a teacher who subjected him to corporal punishment.
School head teacher, XXX, declined to give details when Education contacted her, saying only: ‘that case was closed. If you want to know details you can contact Makerere Police’.
The incident is one of continuing use of corporal punishment in schools despite the fact that it was outlawed several years ago. According to the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN), physical violence accounts for 81 per cent of children who have been beaten at school despite the Ministry of Education’s policy against corporal punishment.
‘I think that corporal punishment has become socially acceptable. The society thinks it is normal but this is wrong and must stop,’ said Anselm Wandega, ANPPCAN executive director.
Some other 34 per cent of children are denied food for extended periods at a time, 82 per cent are made to do difficult work as a form of punishment, while 18 per cent have been locked up in a room, ANPPCAN statistics show.