By Dr Tafataona Mahoso
SINCE the Constitutional Court’s March 3 2019 ruling banning judicial corporal punishment, most parents and other authorities have interpreted the judgment to mean a universal ban on the whipping of children for mischief and open defiance of adult authority.
Parents and others in positions of authority over juveniles noted with grave concern the following pronouncement by the ConCourt:
“The court holds that judicial corporal punishment is, by nature, intent and effect, an inhuman and degrading punishment within the meaning of Section 53 of the Constitution… Caning invades the integrity of the human body. It is an inhuman punishment which blocks the way to understanding the pathology of crime.”
Given the highly moralising nature of this ban on the sentencing of juveniles to caning, it is clear to most parents that the judgment opens the door for banning parents and guardians specifically from whipping or spanking children.
It could not be ruled inhuman and degrading in court and remain otherwise within the family.
As one who took part in the Parliamentary Select Committee on the Constitution (COPAC), I can confirm that the majority of contributors to the COPAC outreach then wanted the option of corporal punishment retained, especially within the family and the school chosen by parents for its discipline.
They wanted parents or families to decide. Every parent I have spoken to since March 3 2019 also wants the same option to be reserved to parents and families.
I was therefore not surprised to read in The Chronicle of March 16 2019 the headline: ‘Bulawayo residents say no to inclusion of pregnant pupils in schools’ which story went on to include the matter of the implied universal ban on corporal punishment:
“The issue of corporal punishment was the most dominant (during the recent outreach by representatives of Parliament) with contributors in agreement that teachers (and parents) should be allowed to punish students (using corporal punishment) but the punishment must be reasonable.”
While the controversy over the ConCourt’s ruling focuses on whether or not whipping kids is inhuman, degrading and unconstitutional, that is not the focus of my contribution.
The real issue being left out of the discussion concerns the long-term effects of stripping the parent, the guardian and the family of powers to decide appropriate forms of discipline for children, on the one hand, and handing them over to the state through judge rule, on the other.
The problem is that, in countries where such judgments have been enforced, the State, represented by the judicial and law-enforcement authorities, have proven to be far less competent or effective as substitute parents than real parents, real families and real communities.
This is because the judgment of the ConCourt endows lawyers-cum-judges with expertise and authority over matters of psychology, sociology, ethics, faith, culture and education.
They do not have such universal expertise or authority. For instance, what exactly does the ConCourt mean ‘by the pathology of crime’?
This sociological and medical term implies that we know for sure that habitual mischief and crime is a sickness and not the result of wilful decision-making and peer pressure on the part of the juvenile.
There is no agreement that all acts of mischief and crime arise from a sickness, which is what pathology means.
Peer pressure and peer persuasion are not pathologies but strict disciplinary matters in which juveniles exercise choice!
Moreover, the over-reliance on judges to decide on how to treat mischievous juveniles seems to fly in the face Section 25 of the Constitution on Protection of the family.
Without defining what is meant by ‘the family’, the Constitution nevertheless goes on to provide as follows:
“The State and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavour, within the limits of the resources available to them, to adopt measures for —
(a) the provision of care and assistance to mothers, fathers and other family members who have charge of children; and
(b) the prevention of domestic violence.”
It is important to note in this regard that many of the acts of domestic violence are committed by juveniles against adults and against children and other juveniles.
In the particular case, which reached the ConCourt, the juvenile spared from caning had committed rape!
While it is true that many countries have banned corporal punishment, the judges in this matter did not say whether the banning had protected and strengthened families in those same countries.
What parents observed is that the judiciary is aiding in the expansion on the anti-social state into human relationships which lie within purview of the family, the parent, the community, sociologists, psychologists and doctors as family advisors.
The Patriot issue of November 20-26 2015 carried two related articles whose meanings need to be linked.
The instalment for this column mentioned the need to strengthen the practice of community-based intelligence jointly developed by liberation war fighters and community-based war collaborators against the settler-state of Rhodesia which enjoyed South African and Western support through the supply of mercenaries, propaganda support, intelligence gathering and weapons.
In the same issue of The Patriot, the feature called ‘No to cellphones, condoms in schools: Parents’ revealed the remnants of that practice of community-based intelligence which continues to be critical, especially of foreign-sponsored cultural adjustment programmes logically following in the path prepared through the Economic Structural Adjustment Programme (ESAP) of the 1990s.
The Parliamentary Portfolio Committee on Education,
Sports and Culture, in 2015, did well to go out to rural communities to find out what the people thought of the creeping anti-social changes which are being pushed
upon the people through ConCourt judgments, through foreign-funded NGOs, through so-called education reforms, through the unplanned introduction of new technologies into schools and through anti-social economic reforms.
Community opposition to the growth of the anti-social state and its war on human relationships which the Portfolio Committee on Education ran into should not surprise anyone. Any honest examination of contributions to the 1999 Constitutional Commission outreach as well as to the 2009 – 2010 outreach of the COPAC would reveal the same opposition which the ConCourt and those who wrote the current Constitution ignored.
But what are the surface signs of the growth of this anti-social state and its war on human relationships?
These signs can be gathered from looking at some currently prevailing contradictions as follows:
- The state which is being told to allow and provide condoms for schoolchildren is also being told to cut school lunches, cut or stop BEAM payments and cut student teachers’ allowances by half. In fact the same week as the November 20-24 2015 issue of The Patriot reporting on the Parliamentary Portfolio Committee, there was an activist on radio claiming that schoolchildren in Masvingo were so desperately in need of condoms that they were using discarded freezit packets as condoms! This story of desperation was created by NGOs to pressure the state into issuing condoms to schoolchildren in the name of youth empowerment and young people’s rights.
- The same state being told to ban under-age marriages and perhaps raise the age of marital consent to 18 is also being used to
liberalise prostitution and treat prostitutes as sex workers even though it is common knowledge that a third or so of them are in factunder-age girls and children.
- What this paradox on the age of sexual consent means is the removal of sex from relationships and the abolition of sex as a relationship in preference for sex as a service or commodity which can be purchased. The under-age girl who sells her body in prostitution is liberated. The one relating to a man in marriage is a slave. That is the logic of the anti-social state.
- On the human rights front the same paradox prevails at two levels: the right to determine what is good for the human being is being moved away from families, away from communities, away from schools, away from churches, synagogues and mosques so that the state becomes or pretends to be everyone’s grandmother, with the policeman, the social worker and the state health practitioner now the enforcer of human entitlements on behalf of the state.
- Eurocentric gender theory assumes that to liberate women from male oppression, it is necessary to abolish all relationships based on cultural practices which distinguish women from men. In this way, the abolition of male/female difference becomes synonymous with freedom for women. Yet unisexism is not liberation.
- The first problem that arises is that the conflict which was caused by trying to abolish those differences actually creates new differences, new misunderstandings and new obstacles between men and women, resulting in escalating violence between them. Forcing college boys and girls to live in the same dormitories and to share rooms results in one sex despising, if not hating, the other.
According to Professor Ken Mufuka:
“The practice of non-gender dormitories has been the norm (in the US) for the last 30 years. Christian colleges are now restoring same sex dormitories because female students have complained bitterly that [college] boys are ‘gross and dirty’… Male barbarism (stimulated by proximity to large numbers of barely dressed women) is simply intolerable. (The boys) seem to (be encouraged) to want to jump into beds with female room-mates without prior consultation.”
Whole governments, whole societies are being subjected to neo-liberal anti-social theory.
According to Mufuka again:
“Sex is defined as part of male dominance-female submission. This is not found in nature but is a social construct. Once the male-female dominance and submission is abolished then humans will be free to express their true sexual orientation in a variety of ways, some straight, some gay, others lesbian (and bisexual.)”
This is where the anti-social nature of the neo-liberal state comes from.
It assumes that all existing relations between male and female are social constructions contrary to nature.
So it tries to dismantle those social relations and to turn human beings into freely floating atoms who must discover their true nature away from established social relations but in order to establish yet new and free relations.
Part of the absurdity of this whole campaign is that the State, whose institutions are set to abolish all social constructs to do with men and women, is itself a social construct.
There is no such thing as a pure State derived from nature. Those ConCourt judges belong to a minority class and their own families have their own peculiar biases and problems.
The other absurdity arises from copying methods and strategies of gender liberation struggle from the struggles of nationalist and civil rights movements of the 1950s and 1960s. Where the British can be assumed to be separate and independent of the Kikuyus of Kenya, where the Rhodesians can be assumed to be a separate and independent group from MaDzimbahwe, this is not to be the same with husbands and wives, boyfriends and girlfriends.
The mutual differences between men and women are the basis for their mutual independence and the basis for mutual attraction and love.
So adoption of modes of struggle borrowed from national independence movements can only lead to deadly and escalating conflict to no end.
The other part of the absurdity arises from involvement of neo-liberal capitalism in the growth and promotion of this anti-social state.
When the ConCourt seeks to abolish child marriages while liberalising prostitution and turning a blind eye to child prostitution, it is expressing the neo-liberal capitalist view that sex as a commodity for sale, sex as a paid-for-service, is liberating because it avoids or abolishes the need for relationships.
Who needs binding relationships when one can convert all relationships into saleable services?
The child prostitute is free to choose a life of debauchery because there are no binding relationships.
But the under-age bride is a slave because she must follow the rules of established relationships.
The absurdities of the growing anti-social state are endless. That State is being pushed to become tete and mbuya by providing free sex education and free condoms.
But the same forces telling it to do so are also saying water should be pre-paid just like cellphone airtime.
Energy is already pre-paid.
So, the people, using their community-based intelligence, are wondering what sort of moral universe would make the State sell prepaid electricity and water while offering sex education and condoms for free?