Guest Columnist Human Rights Law

COVID-19 ERA IN NIGERIA: THE NEED TO SAFEGUARD ELDERLY RIGHTS AND CURB ELDERLY ABUSES – by ADEOYE DAMILARE ADETAYO and IFEDAYO ANTHONY AJAYI

ELDER LAWABSTRACT

It’s no news the Covid-19 pandemic has affected every sector and economies in the world. The elderly in the society have been significantly affected by the pandemic as 95% of Covid -19 deaths were among people over 60 years of age.[1]

The abuse of older persons is a universal issue but more prevalent and less restrained in developing countries like Nigeria. The elderly in the society experience neglect, discrimination, segregation and in most cases severe depression due to the fact that they are weak and vulnerable and should be perceived as such by the society. Thus, the need to protect their rights and ensure they are not maltreated in anyway by individuals and or even governments.

This article therefore attempts to dissect Nigeria’s policy concerning the senior citizens in Nigeria, elder abuse, classifications of elder abuse, examination of the rights of the elderly and possible ways to ensure the protection of elders from abuses.

INTRODUCTION

An elder is someone that has clocked the age of 60 years old and above.[2] Ageing is a natural phenomenon and proper care and attention ought to be given to persons who have been met with the fortune of growing old. This calls for care to be given to the elderly or senior citizens in the society.

Elderly care is the satisfaction of the special needs and requirements that are specific to senior citizens. This broad term covers such services as assisted living, adult day care, long term care, nursing homes, hospice care, and home care.[3]

Elder Law, on the other hand, is a specialized area of legal practice, covering estate planning, wills, trusts, arrangements for care, pension, social security and retirements benefits, protection against elder abuse (physical, emotional and financial), and other involving older people. As the longevity moves upward, it has become an increasing popular field.[4]

As a matter of practice, the aged persons who have invested in their children while in their hay days hold the belief that they will have succor from them when they become senior citizens.

POLICIES RELATING TO ELDERLY IN NIGERIA

The rights of aged persons is not provided for in the 1999 constitution of Nigeria as amended but recourse can be made to the African Union Policy Framework and Plan of Action on Ageing (2003); National Policy on Care and Well-being of the Elderly (Draft 2003); National Policy on Aging (Draft 2006) and the United Nations Economic Committee for Africa: The State of Older People in Africa (Draft 2007), but there is none for Nigeria.[5]

The visible state policy in Nigeria affecting the old people is in the area of retirement benefits. Pensions have shifted from the defined pension system to financial plans based on deferred income and investment for financing retirement known as Contributory Pension Scheme.[6] The informal sector of the economy represents the major employer of labour and those who, perhaps, are most in need of the limited social security benefits that pension schemes provide, but they are not envisaged in the scheme.[7] Due to the inability of the State to have a clear cut policy on what would protect the aged person, their social lives have been made almost impossible.

The Universal Declaration on Human Rights (UDHR) is one of the best-known agreements and the most influential of the agreements. Article 25 of the Universal Declaration of Human Rights makes reference to right to security in the event of old age. Article 25(1) of the UDHR specifically provides that everyone has the right to security and a standard of living adequate for the health and well-being of himself and his family. Furthermore, the Committee on Economic, Social and Cultural Rights (CESCR) in 2009 in its released General Comment No.20 stated in paragraph 29 that        “Age is a prohibited ground of discrimination in several contexts”.

The CESCR emphasizes the need to address discrimination against older persons in finding work, in professional training, and against those living in poverty with unequal access to pensions.[8]

Other regional and international instrument that discusses the right of older person protection through social security include: The African Charter on Human and Peoples’ Rights, the Revised European Social Charter; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights; the International Labour Organization conventions and declarations, including Convention C128 concerning invalidity, Old-Age and Survivors’ Benefits. Convention 102 establishes globally agreed minimum standards for all nine branches of social security: medical care, sickness benefit, unemployment benefit, old-age benefit, employment and injury benefit, family benefit, maternity benefit, invalidity benefit, and survivors benefit. Unfortunately, all these are not the reflecting in the lives of our elders in Nigeria.

ELDER ABUSE

Elder abuse is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to the older person.[9]

Elder abuse includes physical or sexual harm inflicted on elders, they occur in different ways like assault, neglect or the welfare by the people responsible for them. Elders are physically weak and can not defend themselves properly or fight back if they are attacked and this makes the law a succor to protect them.

CLASSIFICATION OF ELDER ABUSE

Abuse of elders takes several forms, some involving intimidation or threats against the elderly, some involves neglect, and others involves financial trickery. The most common classification are:

  1. Physical Elder Abuse: This is the non-accidental use of force against an elderly person that results in physical pain, injury, or impairment. Such abuse does not include only physical assaults like hitting or shoving but the improper use of drugs, restraints, or confinement.
  2. Emotional Elder Abuse:This involves the treatment of an older adult in ways that causes emotional or psychological pain or distress. It includes any of the following:
  • Intimidation through yelling or threats;
  • Humiliation and ridicule;
  • Habitual blaming or scapegoating;
  • Ignoring the elderly person;
  • Isolating an elder from friends or activities and;
  • Terrorizing or menacing the elderly person.
  1. Sexual Elder Abuse: Contact with an elderly person without their consent, as it it applies to all human can fall under this classification. Such contact can involve physical sex acts, but activities such as showing an elderly person pornographic material, forcing the person to watch sex acts, and or forcing the elder to undress are also considered sexual elder abuse. Most people might feel this is impossible and insane to imagine, but recent reported cases have shown that elders face sexual abuses and alarmingly, even rape.[10]
  1. Elder Neglect: Failure to satisfy a care-taking duty. This constitutes more than half of all reported cases of elder abuse. It can be intentional or unintentional, based on factors such as ignorance or denial that an elderly charge needs as much care as they do.
  1. Financial exploitation: The unauthorized use of an elderly person’s funds or property, either by a caregiver or an outside scam artist. This also encompasses the failure of their employers or former employer to payment them their entitlements which can be wages, salaries, gratuity, retirement benefits, pension among others. Governments failing to pay retired Civil servants their entitlements also fall under this classification, and this is a serious human right issue that we often take for granted in Nigeria.
  1. Structural and Institutional Abuse: This classification is usually as a result of how the society has been structured or making of laws that are hard to enforce in favour of the elderly. It can fall under financial abuse when the government and social institutions make it hard for elders to access their retirement benefits, pensions and other social benefits available for other ages.[11]
  1. Healthcare fraud and abuse: Carried out by unethical doctors, nurses, hospital personnel, and other professional care providers.

SIGNS OF ELDER ABUSE

Signs of elder abuse can be arduous to recognize or confused for symptoms of dementia or the elderly person’s frailty, and sometimes, caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so.

Frequent arguments or tension between the caregiver and the elderly person or changes in the personality or behavior in the elder can be broad signals of elder abuse. If you suspect abuse, but aren’t sure, you can look for clusters of the following warning signs.

Physical abuse warning signs:

  • Unexplained signs of injury, such as bruises, welts, or scars, especially if they appear symmetrically on two sides of the body;
  • Broken bones, sprains, or dislocations
  • A report of drug overdose or an apparent failure to take medication regularly (a prescription has more remaining than it should)
  • Broken eyeglasses or frames
  • Signs of being restrained, such as rope marks on wrists
  • Caregiver’s refusal to allow you to see the elder alone

Emotional abuse warning signs:

  • Threatening, belittling, or controlling caregiver behavior
  • Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to themselves

Sexual abuse warning signs:

  • Bruises around breasts or genitals
  • Unexplained vaginal or anal bleeding
  • Torn, stained, or bloody underclothing

Elder neglect or self-neglect warning signs:

  • Unusual weight loss, malnutrition, dehydration
  • Untreated physical problems, such as bed sores
  • Unsanitary living conditions: dirt, bugs, soiled bedding and clothes
  • Being left dirty or un-bathed
  • Unsuitable clothing or covering for the weather
  • Unsafe living conditions (no heat or running water; faulty electrical wiring; other fire hazards)
  • Desertion of the elder at a public place

Financial exploitation warning signs:

  • Significant withdrawals from the elder’s accounts
  • Sudden changes in the elder’s financial condition
  • Items or cash missing from the senior’s household
  • Suspicious changes in wills, power of attorney, titles, and policies
  • Addition of names to the senior’s signature card
  • Financial activity the senior couldn’t have undertaken, such as an ATM withdrawal when the account holder is bedridden
  • Unnecessary services, goods, or subscriptions

RIGHTS OF OLDER PERSONS

The rights of the older persons are privileges and entitlements meant to be enjoined by the elderly, its importance cannot be overemphasized. Denial of these rights is a form of elder abuse and this hinders the achievement of optimal potentials of the older person. The United Nations Organization has recognized that abuse, neglect and violence at any stage in life or to any group of people are human rights issues.

In December 1991, the United Nations adopted a set of principles for older person recommending that all member governments incorporate them into their programs for older people. The principles are based on the following Declaration of the Rights of Older Persons which was summarized by the United Nations General Assembly as follows, “To add life to the years that have added to life, assuring all older persons: independence, participation, care, self-fulfillment and dignity.” The United Nations Principles for Older Persons (resolution 46/91) 16 December 1991, are paraphrased below:

Independence

Older persons have the right;

  1. Of access to adequate food, water, shelter, clothing, and health care through the provision of income, family and community support and help;
  2. To work and pursue other income generating opportunities without barriers based on age;

III. To retire and participate in determining when and at what pace withdrawal from the labour force takes place;

  1. To access education and training programs to enhance literacy, facilitate employment, and permit informed planning and decision making;
  2. To live in environments safe and adaptable to personal preferences and changing capacities;
  3. To reside at home as long as possible.

Participation

Older persons have the right;

  1. To remain integrated and participate actively in society, including the process of development and the formulation and implementation of policies, which directly affect their well-being;
  2. To share their knowledge, skills, values and life experiences with the younger generations;

III. To seek and develop opportunities for service to the community and to serve as volunteers in position;

  1. To form movements or associations of the elderly.

Care

Older persons have the right;

  1. To benefit from family support and care consistent with the well-being of the family;
  2. To access health to help them maintain the optimum level of physical, mental and emotional well-being and to prevent or delay the onset of illness;

III. To access social and legal services to enhance capacity for autonomy and provide protection and care;

  1. To utilize appropriate levels of institutional care which provide protection, rehabilitation and social and mental stimulation in a humane and secure environment?
  2. To exercise human rights and fundamental freedoms when residing in any shelter, care of treatment facility including residing in any shelter, care or treatment facility respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their care and quality of life.

Self-fulfillment

Older persons have the right –

  1. To pursue opportunities for the full development of their potential;
  2. To access the educational, cultural, spiritual and recreational resources of society.

Dignity

  1. To be treated fairly regardless of age, gender, racial or ethnic background, disability or other status, and to be valued independently of their economic contributions;
  2. To live in dignity and security and to be free of exploitation and physical or mental abuse and all forms of abuse.

III. To exercise personal autonomy in health care decision-making, including the right to die with dignity by assenting to or rejecting treatment designed solely to prolong life.[12]

The basic rights of the elderly such as the right to life, liberty, right to work, to freedom from discrimination, are constantly violated. Elders are abused by virtually all kinds of people including Family members, caregivers and community members.

LEGAL PROTECTION OF THE RIGHTS OF THE ELDERLY IN NIGERIA

For there to be a firm protection of the rights of older persons within a state, there has to be a legal framework through which the right can be protected. The state has a role to play in preventing unjust interference with the right of the elderly. These can be achieved through the following means:

The Criminal Code: The Nigerian Criminal Code Act 1990 makes provision for elderly to enjoy certain rights. Section 300 of the Criminal Code Act provides that

  “it is an offence for every person having charge of another who is unable to               provide for himself the necessities of life, by reason of age, sickness, unsoundness of mind, detention or any other cause, to withdraw himself from such charge, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessities of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.”[13]

The scope of this provision is quite wide as it does not only include the children of the older person; it extends to impose a duty on persons bounded by contracts or imposition of the law whether by lawful or unlawful means to take charge of them.

Under the Nigerian Criminal Code Act, contractual obligation of care may be assumed in cases where the old people are put under the care of a care-giver or organization that runs such business, or even a hospital where health care services are to be rendered. A breach of the duty to provide the necessities of life by the care-givers may thus lead to an offence under the Code. If there is an imposition to take charge of the old people on anybody, that person must not shack his or her responsibility in so doing. The provisions of the Criminal Law in this regard give assurance of protection to the old people in broad terms where the issue of providing for the necessities of life is involved. However, this aspect of protection is limited by contractual relationship involving the care of the old persons or through imposition of the law.[14]

Government Policies: The government have a role to play in the easement of life for the older person through their policies. The policies should be streamlined to create and enabling environment for living. A good example is India with some policy objectives that address the special situations of the old people in India. The Ministry of Social Justice and Empowerment is the ministry responsible for the welfare of the old people in India. People above 60 years of age are recognized by the National Policy on Old Persons scheme in India and the scheme covers the following policy issues:[15]

(i) Setting up of a pension fund for ensuring security for those persons who have been serving in the informal or unorganized sector;

(ii) Construction of old age homes and day care centers for every 3-4 districts;

(iii) Establishment of resource centers and re-employment bureaus for people above 60 years;

(iv) Enacting legislation for ensuring compulsory geriatric care in all the public hospitals;

(iv) Concessional rail/air fares for travel within and between cities, i.e., 30% discount in train and 50% in Indian Airlines.[16]

Sadly, the case is not the same in Nigeria as the Nigerian government are not doing enough to protect the rights of the older persons in the country. A significant point to mention is the limited number of old people’s home in Nigeria. Several states have no provision for provision of accommodation for the elderly. Little wonder a good number roam the street while some died due to inadequate health care. The vulnerability of the senior citizens are to be protected through laws and policies of government that are practicable and effective enough to curb the incessant abuse of elders’ right across Nigeria.

A good way to care for the Elderly is to have a special legislation which would protect their rights and establish a commission solely for their interests. In 2011, Maintenance of and Welfare of Senior Citizens Bill, the Bill is aimed at establishing special privileges for senior citizens of Nigeria; provide penalties for breach thereunder and matters connected therewith.[17]

The Bill was read for the first time in the Senate of the National Assembly but could not go beyond this level.[18] Unfortunately the bill did not see the light of the day.

CONCLUSION

The Covid -19 pandemic has called for the re-positioning of all facets and as such, laws should be enacted and made adaptable and suitable for all in Nigeria. The elders law should be part of this by having laws and policies that would protect the vulnerability of the senior citizens in the society. Nigeria as the most populated African country has the tendency to have a large number of aged persons as the current population ages. This makes it imperative for legislation of which the Maintenance of and Welfare of Senior Citizens Bill 2011 could be a good take off point. This is because it would address the provision of care, ensure adequate welfare and protection of the weak in this case the senior citizens or elderly.

Furthermore, the government should ensure that the payment of the gratuities and retirement benefits of aged persons, establish homes for old people, establish resource centre and re-employment bureau, and also health care incentives for aged persons.

Authors:

1) img_20191227_111153_742-140925697.jpgAdeoye Damilare Adetayo Esq

adamilreadetayo@yahoo.com

(+234) 08165548350

A member of the World Association for Medical Law, and Center for Medical Law Research and Development.

2)IMG-20200615-WA0010 Ifedayo Anthony Ajayi

Head Manager, Akungba Law Clinic

Adekunle Ajasin University.

ENDNOTES

[1] Ana Sandolu, “the impact of the Covid-19 pandemic on older adults” www.medicalnewstoday/articles/the-impact-of-the-covid-19-on-older-adults accessed on the 7th June, 2020

[2] Ogundele Samson Esq & Adeoye Damilare “Care for the elderly in Nigeria: the need for the intervention of law” The People Accolade Law Magazine March Edition 2020. Pg 8

[3] Kijong Kim; “Rania Antonopoulos (2011) unpaid and Paid care: The effect of Child Care and Elder care on the standard of living”

[4] https://elder.findlaw.com/what-is-elder-law.html accessed on the 6th of June, 2020.

[5] Ajomale, O. (2007) Elder Abuse: The Nigerian Experience. Retrieved June 4, 2020 from http://www.inpea.net/images/YinkaPaper_ElderAbuse_Nigeria_Dec07.pdf

[6] Obashoro-John, O. (2011) Global Aging Issues: The Nigerian Situation. The Journal of Aging in Emerging Economies,p.62. Accessed on the 4th of June 2020 https://www.kent.edu/sociology/resources/jaee/upload/obashoro.pdf

[7] Ibid. p. 63.

[8] Fredvang, M. and Biggs, S. (2012). Op. cit. p. 10.

[9] Elder Abuse; The Nigerian Experience by Olayinka Ajomale pg 5

[10]A 25 year Old man confessed to raping a 70 year Old Woman in Ogun State, https://guardian.ng/news/i-raped-70-year-old-woman-under-influence-of-alcohol-man-confesses-in-ogun-state/ accessed on 10th June 2020.

[11] Fredvang, M. and Biggs, S. (2012). Op. cit. p. 10.

[12] ibid

[13] Section 300 of the Nigerian Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria (LFN), 2004.

[14] Protecting the Rights of Old People in Nigeria: Towards a Legal Reform Araromi, Marcus Ayodeji, PhD

[15] The policies were formulated by the Ministry of Social Justice and Empowerment and adopted by the Union Cabinet on February 13, 1999.

[16] ibid

[17] See the long title to the Maintenance and Welfare of Senior Citizens Act, 2011.

[18] The bill was introduced to the Upper Chamber of the National Assembly by Senator Gilbert Nnaji and was read for the first time in the Senate on the 17th of November, 2011 but has not gone beyond this level.

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