Kenya 2004 High Court judgment

Confirmation that parental “discipline” can constitute cruel, inhuman and degrading treatment and can be a matter for the courts – Isaac Mwangi Wachira v Republic High Court of Kenya (Nakuru) Criminal Application No. 185 of 2004 (Unreported)

While not categorically ruling out all corporal punishment, this 2004 judgment by the Kenyan High Court is regarded as a landmark. The case concerned a man convicted of subjecting his 3-year-old daughter to torture under the Children’s Act, appealing against the length of his sentence of imprisonment. The High Court rejected the appellant’s argument that the fact he was a parent disciplining his child was a mitigating factor, and affirmed the provisions of the Children’s Act in relation to parental responsibility as distinguished from parental rights (section 23 of the Act), stating:

The society expects the appellant to give protection and love to his children, especially when they are of young and tender age ...”

The case concerned the severe and sustained beating and pinching of a young child and the judgment addresses only the level of punishment which would fall outside what many people would call “reasonable”, but it is important because it affirms the right of children under the new Act to be protected from torture and cruel, inhuman and degrading treatment and asserts that a parent’s behaviour under the guise of discipline can constitute such treatment (traditionally seen to be committed by the state and not private individuals). It also confirms the power of the courts to examine the status of corporal punishment in the home.

 

Subsequent law reform

In 2010, Kenya dopted a new Constitution which prohibits corporal punishment of children in all settings.

 

 Further information

  • For further information on the prohibition of corporal punishment, see the Global Initiative country report for Kenya.
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