The outlawing of corporal punishment (CP) in Kenya's schools in the year 2001 was a significant step towards promoting the learners right to education in the country. Nevertheless, CP has remained in use in most schools as evident in many secondary of Kisii Central Sub County. Moreover, the utilitarian justification and relevance of this ban is contentious and elusive among the educational stakeholders. Therefore, this study critically analyzed the Government policy on banning of CP in secondary schools in Kisii Central Sub County of Kenya, with specific reference to Mill's theory of Utilitarianism. In particular, it sought to analyse; the rationale to the ban of CP, the utilitarian happiness associated with its persistent use, the challenges to its implementation and the extent to which CP alternatives had been used to maintain student discipline. This study was informed by John Stuart Mill's Utilitarianism theory of moral obligation. Survey research design was employed that targeted 950 students, 480 class teachers and 73 principals. Stratified random sampling was used in choosing 274 students and 212 class teachers while 73 principals were selected through purposive sampling. Questionnaires were used for data collection. Quantitative and qualitative data was analyzed through descriptive statistics aided by Statistical Packages for Social Sciences (SPSS) version 21.0 and philosophical reflections. The findings revealed that CP remained in use albeit to a small extent to inculcate discipline on learners. Moreover, teachers and parents exemplified a narrow perception of the envisaged utilitarian justification to the ban of CP as depicted by their strong held traditional view on the usefulness of CP that; it was economical, effective and expeditious in resolving disciplinary issues. However, the students thought that CP was unnecessary infliction of pain on them with no recognizable utilitarian good in terms of; reforming wayward behaviour, deterrence value, domestication of children rights and promotion of high academic performance. The main challenges to this ban included; religious convictions on the validity of CP, cultural approval and acceptance of CP, inadequate training of teachers on school discipline and weak monitoring of the ban. These constraints significantly impacted negatively the realization of student self discipline among other utilitarian pleasures envisaged in this ban. Finally, the findings revealed that CP alternatives such as; guidance and counselling, positive reinforcement, moral education and role modelling were in use to a small extent to instill discipline among students. The study recommends that education stakeholders be enlightened on the philosophy behind the ban of CP to broaden their thinking on school discipline in light of Mill’s utilitarian theory. Also, the MoE need to closely monitor this ban and ensure that it is upheld by taking appropriate legal action on educators who blatantly violate its provisions. Moreover, teachers need requisite training on the utilitarian value of employing the available non aversive alternative disciplinary interventions to maintain school discipline without recourse to CP.The findings are significant to all education stakeholders notably the MoE, teachers and parents in their quest for a sound utilitarian moral guiding principle to the ban of CP and its alternative interventions that are effective in mitigating challenges facing this ban and in making informed policy review on school discipline in Kenya.

Education plays a key role in moulding the character of learners and as such, the Government and the society in general expect all schools to assist the learners develop good behaviour and acceptable moral and social conduct (RoK, 2012). Therefore, educators have the obligation to direct students to exhibit acceptable values and behaviours within and outside the school. In order to have an organized and peaceful school environment, the school management stipulates rules and regulations that guide the activities of members of the educational organization (Gitome, Katola & Nyabwari, 2013). These rules and regulations therefore must be enforced so as to promote discipline and order among the students.

School discipline according to Simatwa (2012) means more than adhering to rules and regulations. It entails the learner’s ability to discern what is right or wrong in an atmosphere devoid of fear or resentment and handled politely but firmly with understanding (MoE, 2009). Moreover, the aim of discipline in the school setting is to enable the learner make informed decisions that comply with the schools code of behaviour, regarding the expected standards of clothing, timekeeping, social behaviour and work ethics among others (Nakpodia, 2010).

However, school discipline is sometimes wrongly conceived to be punishment for breaching school rules rather than behaving within the school rules (Kiprop & Chepkilot, 2010). Moreover, the punishment implied here is corporal in nature since throughout the history of education; the most common form of school discipline was CP using the cane (Njoroge & Nyabuto, 2014). In essence, the term discipline is elusive and more often than not carries a negative connotation. Consequently, this misconception contributes significantly to the persistent use of CP in schools even where it has been outlawed.

In the modern world, particularly in the Orient and Africa, CP is still widely practised as a means of disciplining errant individuals in the domestic, judicial and educational settings (UNICEF, 2010). This form of punishment finds it’s anchoring in cultural, religious and other belief systems that are perceived to favour the practice (UNESCO, 2011). However, in the Western world, there has been almost a total ban on CP especially on children both at school and at home. Similarly, in most countries in the Far East, particularly, China, Japan, Taiwan and Korea, it is illegal to punish one’s own child using physical means (Khatete & Matanda, 2014). In Africa, some countries such as, Burkina Faso, Ethiopia, Namibia, South Africa and Kenya have also abandoned the practice and put legal constraints that prohibit CP of children in the educational context on grounds that it amounts to torture (HRW, 2008).

Nevertheless, in some countries in Africa and the Far East, most people still believe that minimal use of CP for their children is both appropriate and necessary (Kimani, Kara & Ogetange, 2012). Proponents of this view contend that CP is inevitable, and to some extent a natural accompaniment in the process of living and ultimately to the maintenance of order and discipline in society (Kubeka, 2004). In this regard, most educational institutions in these countries are being blamed by the wider society for being soft and hence a willing party to indiscipline. The softness implied here is in the fact that the teachers do not impose 'sterner discipline', that is, CP to instill school discipline (Ndofirepi, Makaye & Ndofirepi, 2012).

The Kenyan Government banned CP in year 2001 through a Legal Gazette Notice No.56 (RoK, 2001). This action was in response to the demands of the United Nations Convention on the Rights of the Child (UNCRC) which Kenya ratified in 1990, a year after it had been promulgated. This ban was later given legal backing by the enactment of the Children's Act (2001). In addition, under the Kenyan Constitution (2010) and the Education Act (2013), CP in all its forms is outlawed. Indeed, through these legal steps Kenya has demonstrated her commitment to safeguard the rights of children against any form of abuse, and now joins the league of many other international human rights bodies, that have taken a strong stand against CP on the ground that, it may rise to the level of torture and that it infringes upon a child's right to education (Odongo, 2004).

The abolition of CP in Kenya appears to be in line with Mill’s theory of utilitarianism that guides this study. The theory of utilitarianism was advanced by John Stuart Mill, a seventeenth century philosopher who held that human actions and social institutions are right in proportion as they enhance happiness and wrong as they tend to produce pain (Mill, 1979). In this case, happiness means pleasant while pain means unpleasant (Nocross, 2009). Moreover, Mill’s idea of Consequentialism admonishes moral agents to abstain from doing things, though their consequences in a particular case might be beneficial; but will be generally injurious to the community as a whole (Sheng & Qinglai, 2004). The implication is that any system, action, or practice that is generally pernicious to society, is not morally right and hence should be abolished. To this end, Soifer (2009) postulated that the general object that all laws have in common, is to augment the total happiness of the community, and exclude as far as possible any mischief or pain. Thus, Mill’s utilitarianism doctrine partly informed the outlawing of CP in Kenya.

In this vein, teachers as moral agents ought to abstain from acts or enforcing rules that are generally injurious/painful to students and hence likely to jeopardize the derivation of full “happiness” by learners from the educational enterprise (Sheng & Qinglai, 2004). Implicitly, maladjusted behaviours among learners such as; physical aggression, increased crime, violence, substance abuse as well as feelings of; anxiety, insecurity, fear, hostility, rage and other stressful affective states constitutes some of the pains associated with use of CP (Ajowi & Simatwa, 2010). Indeed, under such circumstances meaningful learning cannot take place but on the contrary it creates apathy and withdrawal, which leads to failure to achieve in school (UNICEF, 2016). Consequently, any continual recourse to CP fails to meet Mill’s utilitarian ethics that not only seeks to foster happiness for the majority in society but also that of the individual learner.

The ban of CP in Kenya as in many other contries has remained contentious among different educational stakeholders (UNICEF, 2015). Moreover, studies by Khatete and Matanda (2014) in Kenyan schools found out that while some parents, teachers and school administrators favour the use of CP on grounds that it is the ultimate solution to indiscipline in schools, others are strongly opposed to its use arguing that CP does not curb misbehavior but rather reinforces it and aggravates the pupils’ view of adults as treacherous. Moreover, poor parenting coupled with the ban of CP in schools contributes greatly to indiscipline (Mwandoto, 2015). As such, some educators contend that they could not have their hands tied yet they are expected to fulfill their primary obligation of moulding a responsible future adult. This being the case then, coupled with the apparent failure of alternative disciplinary interventions such as Guidance and Counseling (GC), makes some of the educators view the ‘sparing of the rod’ as a cause of increasing indiscipline in some schools in the country. Consequently, the imposition of CP on students by educators has apparently remained to be a regular school experience for learners especially in primary and secondary schools (Kute, 2014).

This phenomenon was particularly so in secondary in Kisii Central Sub-County of Kenya, where disciplinary issues still present challenges to secondary school heads the use of CP to instill discipline among learners in secondary schools still persists (Bosire, 2011). Some of these disciplinary cases include; teenage pregnancy, bullying, alcohol use, absenteeism, drug abuse, violence, arson, homosexuality, lesbianism and rudeness to teachers (Kute, 2014). These disciplinary challenges exist despite use of alternative CP interventions such as; GC, involvement of students in school governance, parent/guardian-school partnership, collaboration with the provincial administration and church leaders to guide the students (Onderi & Makori, 2013). Moreover, the persistent use of CP within Kisii County varied in intensity from one Sub County to another, wth its use in secondary schools in Kisii Central Sub County being more prevalent compared to its neighbouring Sub-counties as Table 1 indicate.....

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