Corporal punishment and the rights of the child
This short paper which is divided into two main parts, an introduction and a conclusion, aims to discuss the issue of corporal punishment on children with special emphasis given to a criminal case decided by a court in Ethiopia in 2012. The first part concerns itself with the events leading to the beginning of the case devoting itself to the backgrounds of the case and preceding to discuss the trial stage until its decision.
In the second part the paper will discuss the legality of corporal punishment in light of the convention to protect the right of the child, the African charter on rights and welfare of the child and domestic laws applicable in Ethiopia, it would further try to reflect on the decision given on the case discussed in part One in relation to basic principles enshrined in the convention and the criminal code of Ethiopia. In the end the Conclusion part would raise a few points by way of finalizing and putting forward general recommendations with regards to the issues discussed in the paper.
a) Back ground of the case
On march 2012 a video posted on Youtube went viral after so many of the local community in Ethiopia shared and commented on it on social networks such as facebook and other blogs, the 6 minute footage showed a child being beaten senselessly by an elder woman who seemingly was punishing the helpless child for crying in school. Another person who is recording the action is heard laughing in the background.
Feelings of disgust and shock were echoed from all parts of the country as the video racked up thousands of views and stirred an online outrage. Cruel, appalling, beyond inhumane , heartbreaking, traumatising – those were just some of the reactions from those who have watched the video posted online.
People who watched the video said they were deeply shocked by the fact that the child remained impassive, throughout the whole episode, the girl doesn’t fight back, resist the attack or even cry, leading to speculations that the child may be used to such abuse even before this incident took place. Many were also disturbed by the audible laughs that can be heard from the background by the video taper as the abuse persisted.
As a result of the video the issue of child abuse in Ethiopia was for once brought to the frontline resulting in the launching of several online campaigns dedicated to the cause. Local media outlets also took notice of the developing story and started running it on radio stations and private news papers which soon led a local website owner to put forward a reward of 10,000 Ethiopian birr(about US$600) for anyone with information leading to the arrest of the abusive woman who was taught to be the mother of the child , shortly after which the woman who filmed the video Meron Asnake came forward and identified the woman as W/ro Halimat Mohammed, a janitor at the Addis Ababa city administration office.
The child in the video was also identified as Bemnet Kasaye who was now 7 years old and a kindergarten student. It was shortly known that the woman was the grandmother of the child who was in charge of raising the little girl. One of the local newspapers, the Ethiopian reporter, which was reporting the matter even before the identity of the individuals was known, got a hold of the woman at her house around Gulele Subcity in the capital and sat her down for her first interview since the video was posted.
The grandmother who gave her first interview wearing a T-shirt with the motto “in the new millennium the safety of children is our common responsibility” plainly printed in Amharic, stated that the alleged incident happened more than 3 years ago because the child misbehaved at school and she become angry.
The response of the general public after this was mixed, The local community at first expressed their delight for the identification of the women and called for justice to be served, yet many expressed their views that they couldn’t believe the video was more than 3 years old as suggested by the women perpetrators, citing that the seven year old Bemnet kassaye now identified as the victim doesn’t look much older than what she looked like in the video.
The increasing public outrage by the video soon led to the arrest of both the grandmother and the young woman who recorded the video with her mobile phone but they were soon released on bail pending the filing of a formal charge by the public prosecutor.
On the 20th of March, 2012 the federal prosecutor filed a criminal charge against W/o Halimat Mohammed in the Arada first instance court, alleging that the accused violated Article 556(2)c of the FDRE criminal code and committed a crime of common wilful injury against a victim who is incapable of defending herself due to her small age, the charge further stated that the alleged crime was committed when the child was 3 years old more than 3 years before the video was uploaded on the internet and that the child suffered minor injuries as a result of the actions of the accused.
The list of evidences cited by the public prosecutor in support of the charge included the child victim Bemnet Kasaye and the girl that filmed the incident on her mobile phone who was previously arrested in connection to this very event but was later changed to a witness. The video that brought this whole episode into the limelight was also included as evidence.
On the day set for the hearing of the case, the defendant admitted that she has beaten the child as specified on the charge but entered a plea of Not Guilty because she did not cause any injury to the child and was only trying to discipline the child so she will not grow up to be ill-mannered.
The court after recording the statement given by the accused ordered the prosecution to call their witnesses. Accordingly both witnesses took an oath to tell the truth and were called to the stand respectively.
The first witness to testify was Bemnet Kasaye the 7 year old child victim who started her testimony by stating that the accused was her grandmother who raised her. The child who was still living with her grandmother, told the court that the defendant punished her only when she is at fault, and hesitatingly admitted that she felt pain when her grandmother does that. The child testified that the defendant usually pinches and slaps her to discipline her; she further stated that although she felt pain at the time she wasn’t injured and didn’t even suffer bruising.
The second witness Meron Asnake, who stated that she was almost like a family to the defendant, told the court that she was the one who recorded the incident on her mobile phone more than three years ago and that the defendant was punishing the child because she ate from somebody else’s lunchbox and lied about it. The witness also stated that no injury was caused as a result of the beating and that the defendant slapped and shoved the child no more than three times.
After the testimonies the defendant told the court that she doesn’t wish to cross-examine either of the witnesses because all that was said was true and thus the court proceeded to give its ruling.
The judge’s final decision stated that the prosecution was able to prove that the accused did beat the child, a fact which wasn’t denied by the defendant from the start. But further stated that it wasn’t able to prove that the victim suffered injuries serious enough to invoke Article 556. As there was no medical evidence suggesting the extent of the injuries suffered by the victim and the victim herself has stated under oath that she didn’t suffer any injuries or bruising as a result of the beating, the defendant can only be held accountable for the crime of assault as per Art 560 of the criminal code which applies in cases where the victim suffered the lowest levels of trespasses to his/her body and health and thus only experienced transient aches and pains.
After the judgement was read in open court, the prosecution was asked if there is anything they would like to say with regard to sentencing, to which the prosecutor raised the shocking and inhuman nature of the assault and asked the court to pass a punishment capable of rehabilitating the offender and warn others from committing similar wrongs. The defendant on the other hand asked for a mitigated sentence for the reason that she committed the crime in anger and mentioning that she has since asked for forgiveness.
On July 7, 2012 the court finally sentenced W/ro Halimat Mohammed to a fine of 300 Ethiopian birr (less than $20 US dollars) for the crime of assault closing the case of Bemnet Kassa roughly three months after she entered into the hearts and minds of the Ethiopian people.
c) Corporal punishment : legality
The committee on the rights of the Child noted in its general comment 8 that “corporal” or “physical” punishment defined as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light” violated the right of the child in the convention and was not in line with the obligation of states to protect children from all forms of violence as enshrined therein.
The African Charter on the Rights and Welfare of the Child to which Ethiopia is a signatory to, also requires states· to “take all appropriate measures to ensure that a child who is subjected to school or parental discipline shall be treated with humanity and with respect for the inherent dignity
of the child and in conformity with the present Charter” ; and even though the ACRWC‘s Article 20 provides for domestic discipline methods that are consistent with the inherent dignity of the child, It should be noted that the charter also emphasises “Nothing in this Charter shall affect any provisions that are more conducive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State.” thereby allowing the application of the convention’s provisions which are more favourable in this regard.
Whatever the case, the insensitive beatings inflicted on Bemnet Kassaye by her grandmother could not by any stretch of the provisions be taken as in line with the spirit of either the convention or the charter
With regard to affording protection against corporal punishment to children, Ethiopian domestic laws fall short of the international standards set by the committee which advices all signatory states to ban physical punishment at home, school and other settings
Corporal punishment is explicitly prohibited in schools by article 36 of the Constitution, which states that “every child has the right to be free of corporal punishment or cruel and inhuman treatment in schools and other institutions responsible for the care of children”. It is also not among the permitted disciplinary measures in the school administration regulation issued by the Ministry of Education in 1998.
Corporal punishment is however lawful in the home. Article 576 of the Criminal Code (2005) punishes maltreatment of children but states in sub-article 3: “The taking, by parents or other persons having similar responsibilities, of a disciplinary measure that does not contravene the law, for the purposes of proper upbringing, is not subject to this provision.” In addition Article 68 of the same code under the title “lawful acts justifiable acts and excuses” states that “acts reasonably done in exercising the right of correction or discipline do not constitute a punishable crime thus in effect legalizing corporal punishment on children. The Revised Family Code (2000) also states that “the guardian may take the necessary disciplinary measures for the purpose of ensuring the upbringing of the minor.”Thus the provisions against violence and abuse in the Constitution (1995), the Criminal Code and the Revised Family Code in their present form are far from enough to protect children like Bemnet from physical abuse by guardians.
d) Case analysis
Coming back to the case, the first thing that one observes on seeing the charge of W/ro Halimat Mohammed is that there is a mismatch between the crime cited and the act that was committed. The provision which is more special and thus applicable to the said incident was obviously Article 576 dealing with maltreatment of minors.
The public prosecutor however chose to bring a charge on account of Article 556(2)c treating the child as any regular person who needs special protection, the reason for this is most likely because the more than 3 years time gap between the commission of the crime and the instituting of the charge made it impossible to indict the accused on the relevant criminal provision because of the statue of limitation has already passed. Even though their where suspicions as to whether the video was indeed as old as the defendant claimed it to be, since there was no way of verifying the truth, the prosecution had to rely on the account of the defendant and her family with regard to when the said incident happened.
The obligations set under the convention involve not only the executive and legislative parts of the government but also the judiciary which is expected to uphold the best interests of the child in all actions. Thus the remaining portion of this paper would concern itself with the decision of the Arada court in light of its duties as prescribed in international instruments and domestic law.
Even though the laws in Ethiopia have not yet recognized the absolute right of the child to be free from corporal punishments in the home setting, once the court has passed a guilty verdict on the defendant, there certainly were a couple of extra measures the court could have taken, using the laws already in force, in order to ensure the best interests of the child.
First of all the final sentence given in the case, which is a fine of 300 birr, is too little a penalty for such a grave violation and thus not in line with the purpose of criminal law. In any case the decision could not be considered as holding the best interests of the child into account; a prison sentence could have sent the message that inflicting physical pain on children is a crime entailing serious consequences. As the aim of criminal law is not only to rehabilitate criminals but also to deter other individuals from committing similar crimes by giving notice of the illegality of an action, a prison sentence in a case such as this, which has captured the public eye may have had a better chance in sending the clear message that such punishments are crimes.
The court could also have ordered the convicted grandmother to enter a guarantee of good conduct as per article 135 of the criminal code. Considering the horrific images of the video and the level of violence, a guarantee of recognizance, which according to Ethiopian law could extend to a time as long as 5 years, may have had positive effects in protecting the child from further abuse in the future.
Its also the opinion of the writer that the court shouldn’t have limited its final decisions on a simple fine which is even less than half of what the accused had secured for bail earlier. Rather the court should have also imposed secondary measures so as to ensure the best interests of the child. The FDRE criminal code allows the court to temporarily or permanently deprive convicted persons of their family rights where they have shown themselves to be unworthy of exercising such rights The video clearly shows that the woman can not in any way be considered fit to take care of any child, thus such a deprivation measure could have had a better chance of guaranteeing the safety of the child more than any imprisonment or other kind of punishment that could have been imposed in a court of law.
Researches done on the issue of corporal punishment in Ethiopia suggest that a very high percentage of children experience what can be considered as cruel, inhuman and degrading treatment by their parents or at school. The Committee on the Rights of the Child itself has expressed concern at the widespread use of corporal punishment in the home, schools and other settings, and recommended explicit prohibition following the state party’s third report in 2006.
It is the opinion of the writer that the case of Bemnet is not an isolated incident in a country where child disciplining is synonymous with physical punishment, yet it could have been a golden opportunity for the state machinery to change the attitudes of a society whose culture accepts corporal punishment, mainly because of the media coverage it received. Reforms in the law and public education about alternative ways of disciplining are urgently needed so there wouldn’t be another Bemnet and another missed opportunity.