You may be unaware that there is before the Senate the Care and Protection of Older Members of Society Bill.
It has had its second reading (the main debate on general principles). This private member’s Bill is intended to give effect to Article 57 of the Constitution.
What does that say? It focusses on the duty of the State (meaning governments and public institutions) to take measures so that older persons enjoy their rights to participate fully in society generally, to pursue their personal development, to live in dignity and respect, free from abuse and to receive reasonable care and assistance from their family and the State.
You will remember that the Constitution prohibits discrimination on the basis of age. So, even without Article 57, the older among us have most of the rights mentioned here. We all (you all – for I am among the elderly) have them: Not to be excluded from society, to pursue our personal development, live in dignity and not be abused. And, like all rights, not only the state but everyone, including individuals and companies, must respect those rights. The State must not just obey the rights, but protect them, promote (encourage and support) and sometimes fulfil them (that is positively act upon including through public financing where necessary).
“Reasonable care and assistance from … the State” is a right that perhaps goes further than the younger and able-bodied would be able to claim.
What Article 57 really does is to recognise that the rights of the elderly (defined as those over 60) may sometimes need specific, targeted action, that a hands-off approach may not be enough. It takes a similar approach to rights of children and youth, persons with disability and marginalised groups. Kenyans may like to say, “We love and respect the wazee”, but perhaps various pressures have led to some breakdown in respect for the elders. We have all read about treatment of the elderly that suggests this. Poor treatment can include the passive: not spending time with the elderly, stimulating them to keep their brains active, ensuring that they eat well, ensuring that they can vote, and understand the issues on which they may vote, taking steps to get relevant care, hearing aids, walking sticks etc. It may be much worse: Physical abuse stemming from frustration with slow thought processes and deafness, fraud â€• taking advantage of illiteracy, poor sight, lack of technology skills â€• through the dumping of elderly relatives in hospital, to killing the white-haired for imagined witchcraft.
THE LANGUAGE OF RIGHTS
The title of the Bill troubled me somewhat. “Care and protection” suggests a rather passive receipt of state generosity and care, rather than an entitlement to rights. Article 57 is very rights oriented, not “Let’s look after the poor old people” oriented! However, the Bill is mainly limited to the provision of care homes and other facilities for the elderly, so perhaps the name is appropriate.
But the Bill does go a bit beyond care homes and the like. And its text also sometimes uses language that comes across as rather condescending, rather than that of rights. We old folks can fully participate in the affairs of our community and hold any position “suitable” and based on our “interests and capabilities”, and participate in activities that “promote our wellbeing”. Why does society think it can tell older people what is good for them, when others can choose?
THAT’S NOT ALL
You may also not know that there is a National Policy on Older Persons and Ageing, revised in the light of the Constitution. Some of its specific goals are to make possible the provision of reasonable care and assistance by families and the state, and encourage the involvement of older persons in development as well as protection from abuse. The United Nations Human Rights Council has appointed an Independent Expert on the enjoyment of all human rights by older persons, and the African Union has a Special Treaty on the Rights of Older Persons.
But only five countries have so far signed this treaty and Kenya is not one of them. Yet the treaty has useful provisions. It talks about the rights of the elderly to make their own decisions and express their opinions, the need for elimination of harmful practices and stereotypes, like those about witchcraft, the need to support older persons taking care of orphans, the need for the elderly to be able to obtain IT skills, to be able to access public buildings and be prepared for the ageing experience. In other words, it is a positive document, as much about an active, engaged old age as it is about the need for support and assistance. Kenya may be reluctant to commit to ensuring pension schemes for the retired, though at least it has the limited cash transfer scheme.
ROLE OF COUNTIES
This Bill began in the Senate, and is much about counties as the national government. Counties do many things that are relevant to the elderly. Examples are health, housing, physical planning, public road transport, libraries and recreational facilities.
But much of the Bill is concerned with what would be best described as “social welfare” – particularly care homes for the elderly. But “social welfare” is not specifically mentioned in the constitution, so, if it goes beyond housing and health services, it is a matter for the national government. This is important: the allocation of national revenue to counties is on the basis of their carrying out their constitutional functions, but not other functions.
And there is another issue. National government institutions â€• including both the Executive and Parliament â€• are fond of telling counties what to do. It is true that the national government has the functions of developing housing and health policies. But policies are supposed to be broad statement of priorities, not detailed blueprints for county action. The reasons for having a system of devolution include allowing counties to develop detailed plans that meet the needs of the particular county. They even include an element of competition: if some counties develop strategies that meet the needs of their people, and the people of other counties see that and push their own government to do likewise, this is a positive outcome.
When the counties and the national government have overlapping functions, the Constitution tells us that national laws will trump county ones only if certain conditions are satisfied. The final deciders would be the courts, but our lawmakers have yet to get to grips with the complexity of devolution. It is not good enough for the law to say, as this Bill does, that the national and county governments must do something “to the extent of their constitutional mandate”. The law must help to clarify what those mandates are.
The possibility of private members’ Bills in Parliament has given a fillip to legislators’ interest in the process of making law. That is no bad thing. But developments requiring government commitment of resources and personnel really require close cooperation between the executive and the lawmakers. When we have an existing policy, like that on Older Persons, it is wise for the law to be based on the policy, as well as on consultation with affected groups.
Perhaps such a Bill ought to go further and try to be a full Charter for the older members of society. How should they be involved, what measures need to be taken to ensure that, like others, they can participate in decisions that affect us all, including physical planning and health for example. How can their rich experience of life be used? How should government take account of the different circumstances of the elderly in urban and rural areas? How can incentives be created for families to continue to support, engage and involve their elderly relatives? How can all this be done economically? Probably only once in a generation is a law on the rights of the elderly going to be passed. It should be comprehensive, workable and acceptable to all.
By JILL COTTRELL GHAI