Is there a justification for corporal punishment?An interview with Lee Muthoga
Wajibu interviewed Mr. Lee Muthoga, a well-known lawyer who is a member of the Board of ANPPCAN (African Network for the Prevention and Protection of Cruelty Against Children) on the appropriateness of this form of punishment. Andrea Useem conducted the interview. WAJIBU: In Kenya, corporal punishment is common in both schools and homes. What role does this kind of disciplining have in our society? MUTHOGA: First of all, let me distinguish between corporal punishment and discipline. Discipline is not about punishment. Discipline is about correction of conduct and the inculcation of moral and social values. It is carried out on the basis of a structured system of rules, do's and don'ts. That is what discipline is about, and it is to be completely distinguished from punishment. Punishment is the infliction of pain, either corporal pain or alternative pain (for example, financial pain) for conduct that is wrong. These two things are only alike in the sense that sometimes we express our disrespect for indiscipline by using punitive steps of inflicting pain on the person to be disciplined. And we inflict pain on the person of the offender in the case of punishment. Generally speaking, I cannot see why anyone can say, "Corporal punishment can never be properly be used as an instrument of discipline." The entire case for the English school master using corporal punishment is the perception of such punishment as a permanent deterrent: to infuse correct conduct in the growing child. Such discipline is used for its convenience. And it is devoid•it ought to be devoid•of punitiveness, devoid of a desire to inflict pain. It is used purely to obtain correct conduct. School masters who use it correctly use it because it is easier for children to remember they were smacked for conduct than that they were reprimanded for it. You pinch young children and the pinch tells them that if they persist in that conduct, next time they will be pinched again, which is not necessarily desirable. Therefore you keep them on the correct path, you inculcate values and principles that are desirable. As they grow up, the need to pinch them decreases, because you can now reason with them to a certain measure. And they can respond to reason as opposed to the inflicting of pain. Therefore I would say that limited use of the rod, properly administered, can be a useful tool of discipline. There are excesses, there are bad uses, there are even cruel uses. Those excesses are to be condemned for their reasons, not just for their being corporal punishment. When it comes to punishment for offenses, this is when you want to inflict pain on the person, and it is suggestive of vengeance. In our structure of criminal conduct, caning is only provided for certain offenses. It is difficult to justify corporal punishment's use as a method of punishing offenders, the reason being that offenders are generally fully grown individuals. So a certain amount of reason should be usable. And that reasoning can be reinforced by other forms of punishment: fines, confinement and so forth. Corporal punishment does not have a strong deterrent effect, as is generally thought, because it is not the pain of the punishment, not the pain of the stroke, that causes the fear of corporal punishment. It is the enormity of the infliction. And that is where our law fails, in recognizing that fact. The colonial administration used corporal punishment not so much because the pain of the strokes was sufficient to make people feel punished, but because of the enormity of an adult person, a grown up, being beaten like a child. It is so unbearably painful. But when this type of punishment is adopted in our present system, one cannot see any reason that is served by it. This is because the punishment is administered in the absence of society. Other than inflicting pain, it doesn't teach any other lesson. After getting inflicted, it is only the victim who knows he's been beaten, and the pain soon is gone. In the days when corporal punishment was incorporated into our criminal code, the mzungu used to make a public show of the use of the cane. People, adults, do not like to be seen to be treated like children. How do you feel about the situation today in the country for children? Last year we saw how a child was caned and then died in school. That was a case of corporal punishment not being properly administered, that was the brutality of force. The brutality of force is being used in this country because it is what we inherited from our colonial past. This country was born of bloodshed, eight years of fighting the British Empire. It taught us you can not achieve anything except through violence, and we learned that, and you can see it in the streets today, you can see it all over the place, you can see what jeshi la mzee is doing about it, because over the years, we've been taught that violence obtains results. When I grew up, when I was a young boy, we spent days and periods in school singing victory songs related to the second World War. One of the songs we used to sing was: "Tumewashinda, tumewashinda, tumewashinda wa hatari ya Mussolini, Mussolini, Mussolini, amekimbia...." (We have overcome, we have overcome, we have overcome the danger of Mussolini, Mussolini, Mussolini, he has run away.) The British Empire was glorifying itself. And we were really taught: it's glory is force. Immediately following that time was the Emergency, and we were shown the might of the British Empire, and we did our best with our pangas, and we tried to pay them back. Our nation was born out of that. And as a result we have all our unsteadiness, resting on our capacity to inflict violence, rather than on our capacity to reason things out. And so we go on with that. But no effort is being made on a national level to reconceptualize these patterns. We are still a nation which says: Let the stronger man win. Wajibu: Do you feel there is a way to break that cycle of violence by stopping caning in schools and caning in the legal code? Mr. Muthoga: I would say that caning in the legal system ought to be removed. Because it is not based on any particularly useful thing. Caning in schools ought also to be controlled, because many of the cane-users are themselves violence-prone. So they tend to misuse the cane. I know that the Education Act restricts the use of the cane a lot more than it did in my days as a student. In my days as a student there was no limitation whatsoever. You got beaten for doing bad things, you got beaten for coming late, you got beaten wearing a torn shirt, you got beaten for anything. The only way you got spoken to was through the whip. That, of course, was wrong, the extent of it was not right. And we haven't quite got away from that, although we have written into the Education Act the regulations on how to use a cane. Wajibu: Presumably now there are some controls on caning in schools, but how do you really enforce these? How do you keep it from being a tool of violence? Mr. Muthoga: By retraining teaching staff. We need retraining directed at this belief in violence; teaching people that there are alternative methods. Reason, for example, is a fairly useful tool, properly used, of changing behaviour. One of your questions is how we justify beating your wife to teach her a lesson. Again that is a carry-over from the past. Where the relative positions of the male and female sexes was different. The male owned the female sex and treated the wife only as a grown-up child, a person who needs to be taught conduct and discipline by using the rod. That pattern is dying, probably not as fast as it should, as some people would want, but it's dying. It's being killed by education, being killed by some form of social and religious teaching, and, of course, by legislation. Because now it is recognized that you beat your wife at your own peril. Although we still have got the notions of reasonable chastisement borrowed from the British behaviour code. Wajibu: What legal rights do people have, especially children, who feel that the discipline on them is too harsh? Does that child have any legal rights? The same with a wife, what can she do if the "discipline" is too harsh? Mr. Muthoga: There is no permission to use the rod on the wife. It is cruel and the wife's options are, "Do I leave this marriage, or do I not?" Her redress is through divorce. Not everybody wants to divorce. Many women think that a battering husband is better than no husband at all. Wajibu: What about the rights of the child who is being beaten? Mr. Muthoga: The parental responsibilities of a child are not statutory. We say that parents have the obligation to bring up their children in a proper way, and we leave it there. I am not for advocating that we should write in a book that "No parent shall ever beat or cane a child." I think that would not be progressive legislation. I think you can eradicate that more by social education and awareness creation, than by legislation. When I was younger sometimes I preferred to get beaten because the matter is settled, is finished. That was better than being reminded every week, "Do you remember week what you did last week? You remember, I warned you, I told you!" and so on. In those circumstances the child has done something he or she should know is not right. And a way to remind him or her is to say, "Do not do it again." In those cases, the punishment is administered in love, not in hate. Wajibu: What about the rights of the child in school? Is there a separate set of laws that cover a child who feels that he or she has been beaten too thoroughly? Mr. Muthoga: The rights of the children are not rights written out in a vacuum. What are the responsibilities of a school teacher? What are the responsibilities of a parent? What are the responsibilities of a guardian? What do we understand a guardian to do? Now in school circumstances, the use of the cane is restricted by law, by the Education Act. It says that the punishment should be inflicted by the headmaster, that it should be inflicted after some warning, and the number of strokes should be entered into a register and the register should be made available for inspection by the school inspectorate department.
In non-school circumstances, in parental circumstances, in my view it would be a foolish legislation to say no parent will ever smack a child. Because one, it is not capable of policing. And it will always be a question of child versus parent. What is the outcome? What do you do with a parent who has smacked a child? Take him to prison? What would the child be eating in the meantime? Who would be looking after him? A parent who has been taken to prison for beating a child, is he going to look after this child after his prison term? Is the child deserving of help and assistance, or as one who deserves to be ignored or not helped? Those are the questions that one asks oneself. But we can educate parents that there are alternative methods of inflicting pain. And that pain ought to be inflicted only in love, not in hate, not in revenge, not in any of those feelings. Wajibu: You have these suggestions about educating parents and policing the schools, is that going on anywhere in Kenya now? Have there been any success stories? Mr. Muthoga: I am not aware of customized, designated programs for education of parents. And you know, parenting is one of the things that we assume that it is known by natural instinct: that when God told Adam to go out and procreate and populate the world, that he put into his head the way to do it! But you and I know that many parents don't know how to parent. When one is thinking about child abuse and neglect, thinking about parental responsibilities with regard to children, then you have many other areas to take into account. You have to think about the family background, the economic abilities of spouses, the spouse relationship etc. I don't think that I would advocate a structured national campaign for the eradication of beatings within the family. I can advocate a national campaign for the eradication of wife battery, because that would be brought up with the campaign for the equality of sexes and other concepts which are supposed to remove the perception that any human beings are the properties of other human beings. Because the wife battering is predicated a belief that the husband has a responsibility over the conduct of the wife. It was built into English common law, until just recently, that the husband was responsible for all the debts of his wife. And the conduct of the wife was something for which the husband was responsible. When you married a gossiping wife, everybody in the town talked about you and your inability to keep your wife from gossiping. We need to get over that. Now we want parity. We are at par. There is no reason why I should batter you to teach you how to behave. To be able to reach parity, we have to abolish things such as bride price, we have to give equal education to children of both sexes, we have to redevelop our concepts of equal contributions for family upbringing, and equal pay for equal work. Those are concepts which need to come up. Because as long as I'm paying my bride price, I shall insist on being the one to say what is to be done.
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