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clear trend which has been established.
[40] Corporal punishment has been abolished in a wide range of countries, including: the United Kingdom,[1] Australia (except in the State of Western Australia),[2] the United States of America,[3] Canada,[4] Europe[5] and Mozambique,[6] among others. In Lesotho, restrictions have been imposed by the courts on the whipping of people over 30 years.[7] Although the Constitution of Botswana contains a provision preserving the application of judicial corporal punishment in its criminal justice system, the practice has been severely criticised by the judiciary. The remarks of Aguda, JA in S v Petrus and Another are apposite to the present enquiry:
"First, it must be recognised that certain types of punishment or treatment are by their very nature cruel, inhuman or degrading. Here once more I must cite with approval what Professor Nwabueze says in his book (ibid): 'Any punishment involving torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs, burning alive or at the stake, crucifixion, breaking on the wheel, embowelling alive, beheading, public
- ↑ This was done by the introduction of the Criminal Justice Act 1948, pursuant to the Report of the Departmental Committee on Corporal Punishment (1938) (the Cadogan Committee). At page 59, the report points out: "In its own interests society should, in our view, be slow to authorise a form of punishment which may degrade the brutal man still further and may deprive the less hardened man of the last traces of self-respect …" Cited in Ncube supra note 13 at 710C.
- ↑ Although it is still included in the Criminal Code of Western Australia, it seems to have fallen into disuse. Ncube supra note 13 at 711J–712A.
- ↑ In 1790 Congress excluded whipping from the punishments that might be imposed by the Federal Courts for federal offenses. It, however, continued to be applied in some States as a method of enforcing discipline in prisons and against juveniles in institutions and reformatories. Only the State of Delaware still retains the `whipping post.' Ncube supra note 13 at 713B–C.
- ↑ Canada abolished corporal punishment through the enactment of the Criminal Law Amendment Act 1972. Ncube supra note 13 at 710H.
- ↑ In the applicants' written argument it was pointed out that the Tyrer case effectively proscribed judicial corporal punishment in countries subject to the European Convention; the Netherlands Government has declared that corporal punishment is a violation of international instruments; Sweden, Denmark, Finland, Norway and Austria have formally proscribed corporal punishment in institutions as well as in the home; and Cyprus abolished all corporal punishment in 1994.
- ↑ Public floggings were abolished in 1989 in accordance with the country's obligations under the African Charter on Human and People's Rights. Johannes Weir Foundation on Health and Human Rights, Health Professionals and Corporal Punishment (1990) 7.
- ↑ R v Tsehlana Rev. Case 157/77 (High Court), cited in Stephen Neff: Human Rights in Africa 33 International and Comparative Law Quarterly (1984) at 339.
