APLICACIÓN DEL MODELO DE GESTIÓN DE SUMINISTRO DE

Section 34(1) of the 1999 Constitution provides that ―every individual is entitled to respect for the dignity of his person, and accordingly -

(a) no person shall be subjected to torture or to inhuman or degrading treatment;

(b) no person shall be held in slavery or servitude; and

(c) no person shall be required to perform forced or compulsory labour.

Section 34(2) went on to exclude from the ambit of ―forced or compulsory labour,‖

among other exceptions, any labour required which is reasonably necessary in the event of an emergency or calamity threatening the life or well-being of the community, anylabour or service that forms part of a normal communal or other civic obligations for the well-being of the community, any labour required in consequence of a sentence

331 Committee on the Rights of the Child, General Comment No. 7 (2005) para. 10.

131 or order of a court.

If this provision is applied to the child and applied strictu senso, then a teacher loses the right to compel any student to do any labour as punishment for lateness or disobedience or as a form of discipline for the child.

In the CRA, the provision appears thus:

Every child is entitled to respect for the dignity of his person, and accordingly, no child shall be—

(a) subjected to physical, mental or emotional injury, abuse, neglect or maltreatment, including sexual abuse; or

(b) subjected to torture, inhuman or degrading treatment or punishment; or (c) subjected to attacks upon his honour or reputation; or

(d) held in slavery or servitude, while in the care of a parent, legal guardian or school authority or any other person or authority having the care of the child.

In the case of Uzoukwu v. Ezeonu,³³² the court of Appeal per Niki Toby JCA (as he then was) construed the word dignity thus: ―dignity does not mean an elevated rank or place of work, nor grandeur of mien, but rather conveys the sense of being degraded, at least, in one‘s exalted estimation of his social status or standing‖. ‗Torture‘ was defined by him as

―some form of pain which could be extreme, it also means to put a person to some form of anguish or excessive pain, it could be a physical brutalization of the human person, it could also be mental, in the sense of mental agony or mental worry. It covers a situation where the person‘s mental orientation is so much

332 (1991), 6 NWLR, pt. 200, pg. 708.

132 disturbed that he cannot think or do things rationally.‖³³³

Inhuman treatment he defined as ―barbarous, uncouth and cruel treatment which has no human feeling on the part of the person inflicting the barbarity and cruelty‖ He defined slavery as ―the state of being reduced to the status of a slave, and opined that servitude entails reducing a person to work as a slave.‖

The UN Centre for Human Rights posits:

―Slavery today covers a variety of human rights violations.

In addition to traditional slavery and the slave trade, these abuses include the sale of children, child prostitution, child pornography, the exploitation of child labour, the sexual mutilation of female children and the use of children in

armed conflict, debt bondage, and the exploitation of prostitution…‖³³⁴

In 2006, the Committee on the Rights of the Child³³⁵ adopted a general comment on the right of the child to respect for the child‘s human dignity and physical integrity and equal protection under the law, also children‘s right to protection from corporal punishment which aims ―to highlight the obligation of all States parties to move quickly to prohibit and eliminate all forms of physical and mental violence and to outline the legislative and other awareness-raising and educational measures that states must take‖³³⁶ In another paragraph the Committee stated ―…there is no ambiguity, ‗all forms of physical or mental violence‘ does not leave room for any level of legalized violence against children. Corporal punishment and other cruel or degrading forms of punishment are forms of

333 Ibid at 777.

334 Contemporary slavery fact sheet, No. 14. http://www.phdre.org/conventions.

335 The body which has the duty of ensuring observance of and monitoring compliance with the provisions of the CRC by States Parties.

336 General Comment No.8 (2006) on ―The right to protection from corporal punishment and other cruel and degrading forms of punishment (para.2) available at

http://www.ohchr.org/english/bodies/crc/docs/co/CRC.C.GC.8.pdf. 15/7/14.

133 violence and the State must take all appropriate legislative, administrative, social and educational measures to eliminate them.‖³³⁷

The Committee recognizes that parenting and caring for children, especially babies andyoung children, demand frequent physical actions and interventions to protect them. This is

quite distinct from the deliberate and punitive use of force to cause some degree of pain,

discomfort or humiliation. As adults, we know for ourselves the difference between a protectivephysical action and a punitive assault; it is no more difficult to make a distinction in relation toactions involving children. The law in all States, explicitly or implicitly, allows for the use ofnon-punitive and necessary force to protect people.³³⁸

In other words, as far as the Committee is concerned, corporal punishment is tantamount to ‗torture‘

and therefore derogates the child‘s right to respect for his human dignity and physical integrity.

Glorying in the seeming widening acceptance of the notion, the Committee‘s General Comment 8 reported that in 2002 the Fiji Court of Appeal declared corporal punishment in schools and the penal system unconstitutional. The judgement declared: ―Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students‖³³⁹ In 1996, Italy‘s highest Court, the Supreme Court of Cassation in Rome, issued a decision that effectively prohibited all parental use of corporal punishment. The judgement states: ―… The use of violence for educational purposes can no longer be considered lawful. There are two reasons for this: the first is the overriding importance which the [Italian] legal system attributes to protecting the dignity of the individual. This includes ‗minors‘ who now hold rights and are no longer simply objects to be protected by their

337ibid, paragraph 18.

338 Ibid 14.

339Naushad Ali v State (2002) Fiji Court of Appeal.

134 parents or, worse still, objects at the disposal of their parents. The second reason is that, as an educational aim, the harmonious development of a child‘s personality, which ensures that he/she embraces the values of peace, tolerance and co-existence, cannot be achieved by using violent means which contradict these goals‖³⁴⁰

This particular persuasion has also found its way into our law in a form. Section 221 (b) of the CRA provides that no child shall be ordered to be subjected to corporal punishment as a judicial sentence.

From what I can glean from all the provisions, court decisions and also general comment, the dignity of the child‘s person is bound in the use or otherwise of corporal punishment, I will therefore venture to spend some time on that subject.