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Sharon Hofisi Legal Letters
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 director 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.

Second, this affirms that the Constitution acknowledges their right as a fundamental human right which must be protected, promoted, respected and fulfilled just like any other fundamental right. Third, the argument is this: test litigation can enable the elderly to benefit from the constitutional remedies such compensation or declaration of their rights.

This is because it has been argued that human rights tend to structure the space, both at the national and international levels, within which human beings attempt to construct a moral order of universal and global scope (Walters, 1995). The consumer population which includes academia, community based organisations and civil society can promote rights of the elderly through constitutional literacy.

It has been observed that education is to be directed to the “full development of the human personality and to the strengthening of respect for human rights among all nations, racial or religious groups” (ibid). Further, “education should make the individual aware of his or her own rights; it should at the same time instill respect for the rights of others” (UNESCO, 1978, cited in Walters, ibid).

At an African level, constitutional literacy can be shaped by the human factor content approach that is steeped in the concept of ubuntu. Parents use their children as their insurance policies in times of old age. Further, our elders are treated as golden ladies and gentlemen.

By placing a duty on families, the content is pitched in a manner that speaks to different family set-ups in Zimbabwe. These include the extended family and the nuclear families. Other issues that are attached to family involvement include the need to curb problems such as elder abuse. In countries such as Great Britain, elder abuse has been understood to include granny battering. In some researches that have been done with specific focus on sub-Saharan Africa, elder abuse is associated with patrilineal and matrilineal inheritance and land rights. Added to this is the erosion of the close bonds between generations of a family caused by rural to urban migration.

Put into perspective, the urban city is some “Mazivandadzoka” or place of mysteries. Elderly involvement in the dispute resolution process is waning. The modern world has eroded the traditional, ritual and family roles of elderly people. People can simply decide to divorce or involve courts of law than use the mediating role of the “council of the elders”.

Apart from the families, the State is also a primary duty holder. It has four duties that are stated in Section 44 of the Constitution. These include the duty to protect, promote, respect and fulfil fundamental rights and freedoms. 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 protection of the rights of the elderly.

On promotion, respect and fulfilment of such rights, a statistical representation of the elderly population in Africa is used in this article to illustrate the urgent need for responses in this regard. Barikordar et al (2016) cite the World Population Ageing Report (2013) which shows that statistics on the elderly population on ages such as 60, 65 and 80. Africa has those who are 60 and above amounting to about 60 033; those 65 and above, 38 513; and those 80 and above, 5 248.

African countries may have to take a leaf from some Asian countries when it comes to the care of the elderly. Some countries have come up with models of dealing with care and assistance. Barikodar et al (ibid) state that Bangladesh has no social welfare system, but has adopted the Age-friendly Primary Health Care that is run under the auspices of the World Health Group.

Carlos (1999) states that there were 200 million persons with 60 years of age and above in 1950; 350 million in 1975; 590 million in 2000; and a projected 1,1 billion in 2025. We are some seven years from the projected population. She used the Philippines model on rights of the elderly which is also supported in this article.

The Philippines government did not merely adapt their constitutional provisions to international standards. They actually adopted the spirit of some of the important soft sources of international law such as the General Comment 6 of the Committee on Economic, Social and Cultural Rights (CESCR). Article 12 of CESCR speaks to the need to take into account recommendations of the International Plan of Action on Ageing (1982). It also shows a threshold test on availability, accessibility, acceptability and quality of health care on the elderly. The Philippines Plan of Action 1999-2004 looked into some of the key aspects on the needs of the elderly which include pension (social security, government service insurance system, Philippine Veteran Affairs) and welfare services under the Department of Welfare and Development.

The importance of a country-specific approach enables the courts to determine the minimum core content. Zimbabwe has made huge strides in affirming the spirit of this plan by constitutionalising the right. The normative framework under the Constitution must provide useful insights in this regard.

• Sharon Hofisi is a lawyer and writes in his personal capacity.