Delinquency is an unexpected occurrence that may be noticeable at any time before maturity of a child, particularly during teenage stage. Sometimes, it may extend out into adulthood. Physiological and emotional concerns, distresses or influences may lead a child to engage in unwarranted anti-social conduct including criminal transgression.
State involvement in dealing with such delinquent behaviour, therefore, must be informed and motivated by reformative goals with the need to protect and care for the delinquent child. This should be a recognized responsive understanding by government to process and deal with a child in conflict with the law in harmony with the approved set of laws while taking cognizance of the child’s rights and best interest. This is true even for non-state actors.
Unfortunately, millions of children carry scars and continue to bear humiliating abuses and excesses of violence globally. This aggression and brutality against their rights as human beings carries with it severe and eternal ramifications. Vindictiveness engenders cruelty. Discipline is necessary but it can be achieved without violence and aggression. Hostility implants terror and despair; the end result of which is turmoil and tumult.
It’s my belief that the biblical idiom of spare the rod and spoil the child, a universal citation in this context, has been used in reference to peaceful discipline. That is, discipline based on respect, trust and compassion whether the child is at home, school or in the community. Such tempered discipline will ensure not only a peaceful world but also a safe haven for children and a sanctuary where discipline is inculcated not by brutality but by mentorship.
Consider the following illustration. Jesus’ parents used to visit Jerusalem for the annual custom and festival of Passover. But one time was different. In one such visit when Jesus was twelve, he remained behind in Jerusalem without his parents’ consent. When they realized that he was missing, they began looking for him among relatives and friends. He was finally located in the temple among elders and teachers.
Astonished by his conduct, his mother admonished him for his conduct. But Jesus shot back, “Woman, how is it that you sought me?” This question, in African standards, would have meant a severe damage to the child’s dental formula. As expected, this story is among the sorrows of Mary. However, it’s possible to imagine that if his parents had administered a dosage of corporal punishment, then perhaps ‘Immanuel’ couldn’t have been with us.
Thus, children are a gift, heritage, indeed a crown, from God. They are like arrows in the hands of a warrior. Every single life, every single child, is a reward and a blessing. It is irrelevant and immaterial whether the child is a source of pride, joy and happiness or is a fountain-head of sorrow or distress to the parents. God knows that children can bring us closer to Him by teaching us how to be more tolerant, patient and full of forgiveness.
Besides the heavenly abode, here on earth we have rules, regulations and laws that deal with the protection of children from cruel, degrading and humiliating treatment as well as punishment. The preamble to the constitution of Kenya for instance, delineates not only our commitment to nurturing and protecting the well-being of the individual, the family, communities and the nation but also recognises the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.
Let’s return the cane to the classroom, is the call or mantra from the Ministry of Education. This is a determined attempt to warn learners against indiscipline and wayward behaviour. Children have been threatened that investigations would not only reveal the identities and details of those behind rebellious behaviour but also profile such particulars in a database that can be used against them in their entire career. This is in reference to several high school fires, arsons and other juvenile vices that the country is going through at the moment.
It must be mentioned clearly that such utterances by an important state functionary are legally untenable, ill-informed and evidently unconstitutional. They are an anti-thesis of the letter and spirit of our constitution, national laws and international norms and standards dealing with child rights and protection. Children are the heartbeat of a nation. Choke them and the republic dies a silent death!
Human dignity inheres in every person and therefore any individual has the right to have that dignity respected and protected. And to that effect, Chapter III of the constitution captures the paramountcy and significance of fundamental rights and their protection. It provides among other things that the state shall enact and implement legislation to fulfill its international obligations, which are part of the laws of Kenya, in respect of human rights and fundamental freedoms. It underlines that despite any other provision in the Constitution, freedom from torture and cruel, inhuman or degrading treatment or punishment shall not be restricted.
The right to freedom and security to every person is guaranteed. Such freedom and security includes the right not to be subjected to any form of violence, torture, corporal punishment; or treated or punished in a cruel, inhuman or degrading manner.
Any defence couched as law, including customary law, therefore that is inconsistent with this Constitution is redundant, void and invalid. Chapter IV underscores the crux of child care and protection. The rights of the child against abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment are fastened herein. Every child is entitled to individual care and protection. Resort to child detention should be a measure of last resort; with the shortest appropriate period of time possible if detained taking into account the child’s sex and age. A child’s best interests are of paramount importance in every matter concerning the child.
Achieving the prevention of all forms of violence against children, including corporal punishment, in all settings of children’s lives should be a priority. Those with unique moral authority and capacity to speak out and influence social change must do so by raising awareness about the impact of violence on children.
Parents, teachers, elders, political and religious leaders and their communities, through their widespread networks and webbing at home, schools, neighborhoods, provincial, national and global plane, carry an astonishing moral ability and persuasion towards terminating all violence against children. They should abhor hurtful and violent forms of punishment by promoting non-violent discipline and education. Such influential voices need to emphasize that violence against children, whether or not disguised as discipline, cannot be justified or condoned through law, culture, tradition or faith.
With strong determination, leadership and role-modeling, they can display profound reverence for children’s self-esteem and dignity. They can defend the inviolability of life in all stages of a child’s development, by being the epitomes of kindness, empathy, equality and non-violence. It’s therefore crucial that all stakeholders including political and religious leaders and communities exercise their positive influence in a manner that provides solutions towards purging all forms of violence against children, including through the promotion of law reform.
Despite the progress achieved in terms of GDP growth and economic development, violent punishment of children remains pervasive, lawful and socially approved in many nations. It continues to cause widespread pain and suffering to children. It is imperative to build on the collective strengths of parents, teachers and religious communities and promote alliances cutting across all socio-political and religious strata to move towards the prohibition and elimination of all forms of violence against children,including corporal punishment.
The escalation of apparent juvenile delinquency in Kenyan schools and society lately has underlined the need to have a pointed debate including law reform and institutionalizing penal legislation to deal with the vice. Yet, such debate must be driven by the need of diverting children from punitive adult actions, proceedings, institutions and prisons.
This effort must endeavour to minimize the chances of contagion of comparatively green offenders by more hardcore criminals, avert the hardening of attitudes against society and authority ensuing from resentful experience in punitive institutions, avoid tagging of the juvenile offenders as criminals by the society and that way encourage image make-over and must afford special programmes for resocialization with the objective of correcting the deviant behaviour before it gets out of hand.
Ideally, even Juvenile court proceedings should be closed to the public and juvenile records are to remain confidential so as not to interfere with the child’s ability to be rehabilitated and reintegrated into society. Juveniles ought not to be charged with crimes, but with delinquencies; they are not to be found guilty, but adjudicated delinquent; they should not be sent to prison, but to special institutions or reformatory establishments. Why do we want our children’s negative profiles hang on their necks forever? Let’s yearn with compassion for our children.
Yet, in practice there is perpetual friction between social welfare and social control. That is, aiming our attention on the best interests of the individual child as against concentrating on punishment, incapacitation and shielding society from certain offenses. This strain has altered over time and oscillates significantly from jurisdiction to jurisdiction, and it remains today as is expected to remain tomorrow. The right balance has to be struck to protect the rights of the child without injuring social interest.
In sum, the role of teachers is to enforce discipline and offer counselling to learners. Yet that’s not the only function of teachers in schools who happen to be too few and far between. The potential of technology particularly, installing CCTVs at vantage positions to ease the burden of physical supervision by teachers who are already overburdened by classroom overload due to lopsided teacher-student ratio may set good standards. Introduction of suitable modules of juvenile delinquency starting from higher primary school may be a good beginning. Free and regular training programmes, workshops and seminars for teachers on the subject of counseling is the need of the hour if at all dedicated counsellors are found to be impracticable.
Dr. Nyatundo George Oruongo is a Legal Scholar based in India. Feedback to him can be sent using this contact: georgeprasam@gmail.com
