Rights of the elderly in Zimbabwe

Zimbabwe has old people’s homes and is also fast embracing the need for hospice palliative care. This is comforting and must be celebrated. Further, a statutory instrument on older persons was recently adopted and this is good news for effective protectio

IN OUR folklore, a story is often told on how some young men hatched an evil plan to annihilate all elderly men in their village, known in some indigenous systems as hohonwa. One young man purposed in his heart that he would save his father. He hid him in a cave that was close to the village.

Thunder clouds of a tragedy hit the village. All the elderly men were killed in a manner that disregarded the sanctity of human life. With time as the greatest equaliser, the young men also grew older. As the departed elders had used to say in their wisdom that life was an echo, a ravening python visited the seemingly peaceful village. It was about to devour a child, the only child of a hopeless family.

The village women cried their hearts out and threatened to leave the kingdom if the child’s life was not saved. The saviour son rushed to his father to seek some wise counsel. “Father, there is tragedy in the village, a dangerous reptile is about to destroy the village fabric. What should we do?” Embracing his son, the father quickly retorted: “Take a frog and tie it to a long rope. Place it before the reptile and it sees its meal. Hurry up, my beloved son!”

There was wild jubilation in the village. The child’s life was miraculously saved. “How did he do it?” His unnerved contemporaries were amazed. ”This is the work of those elders we neglected and killed,” the saviour son boldly remarked. In some frenzied celebrations, his old and frail father was welcomed and was immediately installed as the substantive chief of the village.

Read from another world, Miller (2010) has an article which begins with some age quotes from Anais Nin which includes that “we are mature in one realm; childish in another . . . we are made up of layers, cells, constellations”. She starts by raising the challenges that are faced by the elderly such as transportation, employment and social inclusion.

She then raised an important question from the World Health Organisation (WHO) that elderly is more than just a function of chronological age. The question encompasses a number of factors such as functional capacity, social involvement and physical and mental health.

Further, she showed that elderly is only seen as a generalisation that draws together people of vastly different characteristics. She argued that people age differently, with some going through life with few health issues, while others may suffer from multiple conditions.

Constitutionally speaking, the Constitution of Zimbabwe 2013 protects the rights of the elderly. The elderly are defined in Section 82 of the Constitution as people who are over the age of 70 years. The inclusion of elderly rights in the Constitution means that they are now justiciable. They can be enforced and the holders can approach a court of law in the event of their violation.

Further, Zimbabwe has an Act on Older Persons which has a long title which shows the purpose of the statute is to: provide for the well-being of older persons; appointment of a direc- tor for old persons affairs; establishment of an old persons board; establishment of an old persons fund; and to provide for matters connected with or incidental thereto.

Such an Act is important from a justiciability perspective because it adds to the content of the rights under review. For instance, elderly rights are framed in such a way that they have three broad rights which include: to receive reasonable care and assistance from their families and the State; to receive health care and medical assistance from the State; and to receive financial support by way of social security and welfare.

The rights are interpreted using the content of the Older Persons Act. Further, using the arguments from Miller (ibid), the three pillars of rights in our Constitution fit into functional capacity, social involvement and mental health. This is because reasonable care and assistance may be a result of some physical or mental incapacitation. Health care and medical assistance also shows the need for mental health and other forms of health. The need for financial support based on social security and welfare shows the need for both functional capacitation and social inclusion.

This is notwithstanding the fact that the rights of the elderly are by nature progressive. Put differently, they are not instantly realised. They develop based on the commitment of the State and key stakeholders to uphold the duties that are enshrined in the Constitution. The State is given some margin of appreciation on matters such as availability of resources.

This is why Section 82 of the Constitution also enjoins the State to take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right.

The importance of including the rights in the Constitution is constitutionally pitched. Firstly, it must be noted that the rights under review are part of the Bill of Rights or Chapter 4 rights in our Constitution. Using rights particularism model as a choice of argument in this article, the rights are part of the elaborated rights in Part 3 of Chapter 4 of the Constitution.

For starters, Part 1 of Chapter 4 of the Constitution deals with the application and interpretation of the Bill of Rights. Although there is no international treaty that specifically deals with the rights of the elderly, this part empowers Zimbabwean courts to deal with test case litigation on the maintenance of the elderly.

Test litigation can be done in a way that is similar to claims for spousal or child maintenance. In terms of the Constitution, the families or the State are supposed to provide reasonable care and assistance to the elderly. If this is so, it therefore follows that those who fail to maintain the elderly can be obliged to do so at law.

The courts can use Section 46 of the Constitution to support such test case litigation. They can give full effect to the Bill of Rights by interpreting the content of the rights under review. They can use foreign law from countries such as Britain, Bangladesh or the Philippines which have dealt with issues such as elderly abuse, social security and welfare of the elderly.

The interpretation section also empowers our courts to use international law. Although there is no treaty law that specifically deals with the rights of the elderly, there are several sources of international law such as the Universal Declaration of Human Rights (UDHR) 1948, and the International Plan of Action on Ageing (1982). Article 25 (91) of the UDHR speaks to issues that involve the elderly such as food, clothing, housing and medical care and necessary social services. Other issues include the right to security in the event of old age.

At a constitutional level again, Part 4 of Chapter 4 of the Constitution deals with the enforcement of fundamental human rights and freedoms. The elderly have legal standing or the ability to assert their rights. If they are not able to do that, they can be represented by oversight institutions or some other groups that can act in terms of the interests of the public as is defined in Section 85 of the Constitution.

A further three points may be made in this article. The Constitution allows the elderly to seek relief that is based on constitutional breaches. First, this enables them to affirm their rights in the event of some breaches by either their families or the State.