Human Rights in the 21st Century; Protecting and Promoting the Rights of Persons With Disabilities in Nigeria: A Case Study of Discrimination Against Persons With Disabilities (Prohibition) Act, 2018

Human Rights in the 21st Century; Protecting and Promoting the Rights of Persons With Disabilities in Nigeria: A Case Study of Discrimination Against Persons With Disabilities (Prohibition) Act, 2018

Chapter One

Objectives of the Study

This study is informed by the following objectives:

To assess the extent to which Nigeria‘s Persons with Disabilities Act is in conformity with the Constitution of
To assess the extent to which Nigeria‘s Persons with Disabilities Act is in conformity with international instruments on disability and in particular the International Convention on the Rights of Persons with
To assess whether and to what extent Nigeria‘s policies, legal and institutional framework on disability rights conform to international human rights standards and norms.
To interrogate Nigeria‘s policy, legislative and administrative gaps which hinder realization of basic fundamental freedoms for persons with disabilities living in
To what extent can Nigeria draw comparative parallels from the practices on disability rights in the Republic of South Korea

CHAPTER TWO

A REFLECTION OF THE CONSTITUTION OF NIGERIA, 2018 ON ITS PROVISIONS ON PERSONS WITH DISABILITIES AND THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND ITS OPTIONAL PROTOCOL

Introduction

This Chapter discusses the provisions of the Constitution of Nigeria, 2018, which are specifically aimed at protecting and enhancing the rights of persons with disabilities. In addition, the Chapter interrogates the provisions of the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol. This Chapter demonstrates that Nigeria has made a bold step in enacting laws and ratifying international instruments aimed at safeguarding and enhancing the rights and freedoms of persons with disabilities. This Chapter is divided into two: Part I discusses the Constitution of Nigeria and Part II discusses the provisions of the Convention and its Optional Protocol.

The Constitution of Nigeria, 2018

Nigeria is in a new constitutional dispensation.⁷⁵ The Constitution of Nigeria, 2018 (―hereinafter referred to as the Constitution‖) is the supreme law of the Republic and binds all persons and all State organs at both levels of government.⁷⁶ Any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency and any act or omission in contravention of the Constitution is invalid.⁷⁷ This implies that all laws in the Republic should conform to the provisions of the Constitution lest they are declared unconstitutional. Due to the progressive nature of this basic and fundamental document, there is renewed hope in all fronts that with good governance, sound social and economic interventions, there will be an improved realization of human rights in Nigeria.

The protection of human rights and fundamental freedoms, including economic and social rights, is safeguarded under the Constitution.⁷⁸ It sets out a progressive Bill of Rights enjoyable by all individuals in Nigeria. The Constitution promotes equality and non-discrimination.⁷⁹

The Constitution further provides special safeguard on the protection of individuals or groups who may be discriminated and in this regard, among the national values and principles of governance which binds all State organs, State officers, Public officers and all persons whenever any of them applies or interprets the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions,⁸⁰ should not divert from human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.⁸¹

The Constitution provides that general rules of international law shall form part of the law of Nigeria⁸² and that any treaty or convention ratified by Nigeria shall form part of the law of Nigeria under the Constitution.⁸³ Consequently, once ratified, international instruments can be directly applied by the courts, tribunals or administrative authorities in the absence of domestic legislation on the same. It is worth noting that Nigeria has ratified a multiplicity of international instruments which are relevant to this study.

CHAPTER THREE

AN ASSESSMENT OF THE PROVISIONS OF THE PERSONS WITH DISABILITIES ACT217

Introduction

Nigeria enacted her first disability-specific law in 2018, the Persons with Disabilities Act²¹⁸ (hereinafter also referred to as ―the Act‖). The Act is based on the Persons with Disabilities Bill, 1997 that had been earlier proposed by the Task Force on Laws Relating to Persons with Disabilities. Prior to that, Nigeria‘s disability law was contained in bits and pieces of general provisions in the constitution²¹⁹ and other pieces of legislation.²²⁰ The Persons with Disabilities Act, 2018 now codifies provisions applicable to all forms of disability and it exists alongside the prior-existing pieces of legislation. It was assented to on the 31^st December, 2018 and came into force²²¹ on the 16^th June, 2004.²²² The main objectives of the Act are to provide for the rights and rehabilitation of persons with disabilities, to achieve equalization of opportunities for persons with disabilities, to establish the National Council for Persons with Disabilities and for connected purposes.²²³ In order to further implement the provisions of the Act and give greater effect to the United Nations Convention on the Rights of Persons with Disabilities, the Minister responsible for matters relating to persons with disabilities has made several pieces of subsidiary legislation.²²⁴ This paper dedicates the next part in discussing the various features under the Act. The central role of this part will be to measure whether the provisions of the Persons with Disabilities Act are in conformity with the Constitution of Nigeria, 2018 and the United Nations Convention on the Persons with Disabilities.

CHAPTER FOUR

PROTECTION AND ENHANCEMENT OF THE RIGHTS AND FREEDOMS OF PERSONS WITH DISABILITIES: THE CASE OF THE REPUBLIC OF KOREA.

Introduction

Korea has some of the best practices in the world as far as protecting, enhancing and implementing the rights of persons with disabilities is concerned. This chapter demonstrates that Korea‘s practices on disability issues are worthy to be emulated. This being a comparative study, it is important to note that Korea is far much better than Nigeria especially in her compliance in implementing the law on persons with disabilities.

For instance, in times of national emergency, the Korean government has established a national emergency plan which includes methods for evacuating those in welfare facilities and accommodating them in designated refugee shelters, a plan to temporarily accommodate the disabled who are left behind or abandoned in emergencies.³⁰⁵

It is mandatory in Korea for buildings to be equipped with facilities that allow persons with disabilities to be evacuated in the case of an emergency, such as emergency exit lights and audible alarm systems.³⁰⁶

The Korean government has dispatched assistants to provide aid to people with severe disabilities. These assistants provide persons with disabilities with help in daily living, mobility and activities in local community.

CHAPTER FIVE

CONCLUSIONS AND RECOMMENDATIONS

“Nothing about us, without us”⁴¹⁸

Introduction

This chapter focuses on the summary and conclusions in respect of the foregoing chapters. It also summarizes the gaps that exist in the legal, institutional and policy framework on the various laws on or about persons with disabilities in Nigeria. Since the study was context-specific and focused, in order to focus on the legal questions advanced, this summary will be on the Persons with Disabilities Act. This chapter also makes appropriate recommendations which if adopted would go a long way towards the realization of better pieces of legislation on persons with disabilities in Nigeria.

Summary and Conclusions

Chapter One outlined the objectives and the importance of this research paper. It laid out the scope of the paper and the idea was to shed light on to the study, its significance and to set out what it aimed to accomplish.

Chapter Two discusses the provisions of the Constitution of Nigeria, 2018 touching on persons with disabilities. In addition, this chapter also discusses the United Nations Convention on the Rights of Persons with Disabilities. The aim of the chapter is to lay a basis of the rights and freedoms of persons with disabilities as captured under the Constitution and the Convention.

Chapter Three was a conceptual chapter whose purpose was to lay a background of the topic under discussion. The chapter interrogated the provisions of the Persons with Disabilities Act in order to expose, on one hand, the bold and generous provisions, and on the other hand to highlight areas where the Act is weak and needs adequate adjustments in order to achieve its objectives.

The chapter starts by giving a brief history of disability laws in Nigeria generally and goes specifically to discuss the Persons with Disabilities Act. It goes ahead to discuss the specific provisions of the Act. It starts by discussing the National Council for Persons with Disabilities; its composition, legal status and its responsibilities. Some of its responsibilities highlighted include registering persons with disabilities, placing the registered persons with disabilities with the appropriate medical and rehabilitation services and institutions, providing certain direct material services like assistive devices, appliances and equipment to persons with disabilities. The Council is also required to make provisions for scholarships, loan programs, fees subsidies…for assisting with the education of children with disabilities. While the Council has been given very wide and bold powers and functions, there are imminent gaps notable. First, the Council‘s source of funds is through allocation by the Parliament and donations from well wishers. This implies that the Council‘s principal source of funds shall remain the budgetary allocation made by the National Assembly, for donations from well wishers are not certain. In the event that the Council does not secure enough funding from the National Assembly, this will drastically affect realizing its objectives. On the composition of the Council, whereas there is a perceived advantage in placing persons with disabilities to be in charge, the composition of the Council as currently established under the Act is unjustifiably skewed towards persons with disabilities.

The Chapter also discusses the specific disability rights as provided under the Act. It discusses the right to employment. Most of the provisions on this right discuss on the issue of discrimination against persons with disabilities who are seeking employment or are already employed. Discrimination of a person with disability in relation to employment constitutes an offence that attracts either a fine or imprisonment or both. This provision makes a bold step by instituting a system of incentives to encourage private employers to employ and retain persons with disabilities who possess the required skills or qualifications.

The right to education by persons with disabilities is also discussed. In order to achieve this right, persons and/or learning institutions are prohibited from denying persons with disabilities admission to any course of study by reason of such disability if the person has the ability to acquire substantial learning in that course. A weakness in this provision can be noted. It provides for the establishment of special schools and institutions. Such special institutions of learning in which persons with disabilities are secluded may complicate their lives because it may be difficult for them to socialize and integrate into the larger society.

In addition, the chapter discusses civic rights tailor-made for persons with disabilities. This touches on the right to participate in politics and political life. The Act attempts to address the plight of persons with disabilities by providing that they can be assisted during voting in case they are unable to vote on their own. However, the Act‘s provisions on these rights are weak and short-sighted. For instance, the Act does not address the possibility of making necessary accommodations on voting areas, providing polling stations to residential centers hosting persons with disabilities and who have mobility challenges, making voting materials in Braille to accommodate persons with visual disabilities etc. The Act also falls short of specifically addressing the plight of women with disabilities who seek to vie for elective positions.

Persons with disabilities are guaranteed of sporting and recreational rights. They have the right to use, free of charge, government-owned or operated sporting and recreational facilities. They are also entitled to participate in all national and international sports events. The Act introduces a claw-back provision by providing that the minister responsible for sports, in consultation with the Council, should provide necessary suitable environment and equipment for the participants. This implies that the implementation of this provision largely depends on the Minister‘s will and action. It is also important to note that there is no timeframe indicated on when the Minister should act.

The right to health is one of the important rights to be provided to persons with disabilities due to their critical condition(s). The Act guarantees persons with disabilities their right to health. However, the provisions on this right cannot achieve much in their present form. The health ministry has been obliged to incorporate the representation of the Council in the implementation of a national health program in respect of certain aspects of disability. There are notable gaps in this provision in that the commitment upon the government is not well articulated and secondly, there is no timeframe within which the Council‘s representation should be incorporated. Persons with disabilities have not been granted the right for a relief against the ministry responsible for health.

Accessibility and mobility are key to persons with disabilities. The Act prescribes that persons with disabilities are entitled to barrier-free and disability friendly environment to enable them have access to buildings, roads and other social amenities. This provision was brought into effect in 2018 and therefore nothing has been realized as far as its implementation is concerned. Private developers have not been included in this provision and this is undesirable because persons with disabilities are required to access private enterprises. In addition, the provision talks of public service vehicles as the only mode of public transport system. This leaves out the train transport system which is an important mode of public transport system in Nigeria.

In order to have persons with disabilities get information, important public amenities should be rendered friendly to persons with disabilities; including television programs and telephone services. All television stations are required to observe this. However, the compliance mechanism is weak. State-owned television stations have been complying with the provision but with privately-owned television stations have not been faithful in compliance. About the telephone requirements, it is regrettable the State nor private entities have not shown any efforts of compliance.

Persons with disabilities are supposed to enjoy some tax reliefs and exemptions. However the Act makes compliance of this provision unnecessarily difficult to attain. The Act effectively exempts persons with disabilities from payment of income tax as long as the minister approves. The Act directs that the Minister‘s order on income tax exemption shall have effect according to its terms notwithstanding the provisions of any other Act. The Minister‘s order takes the form of subsidiary legislation. It will therefore be of no effect if it contravenes an Act of Parliament.⁴¹⁹ This is further complicated by the fact that the Income Tax Act⁴²⁰ subjects persons with disabilities to the same tax rates as their counterparts without disabilities. In addition, the Minister has been given huge powers to refuse an exemption on the basis that it has not been provided for in the allocation of public resources. These additional requirements and conditions leave a lot to be desired. The Act also gives incentives to persons from whom their compliance or other intervention is required; for instance, employers of persons with disabilities. These incentives confirm that the Act‘s provisions, to some extent, are generous to persons with disabilities. However, it is problematic to realize them because they have been subjected to additional requirements like

⁴¹⁹ Section 31(b), Interpretation and General Provisions Act, Cap 2, Laws of Nigeria.

⁴²⁰ Cap 470, Laws of Nigeria. approval by the Council and relevant government departments. These additional conditions are mere claw-backs and occasion delays even where urgency is required and this defeats the very purpose of the Act.

In relation to court proceedings concerning persons with disabilities, if they are to be held in custody after denial of bail, they should be held in facilities modified in accordance with regulations made by the Minister. This implies that the Minister holds the key to the realization of these benefits; until he comes up with these regulations, the Act will continue being a mere paper victory. The Chief Justice is required to ensure that suits involving persons with disabilities are disposed off expeditiously, having due regard to the particular disability and suffering of such persons. The Act does not provide how this may be achieved and there are no existing guidelines to facilitate this provision because cases concerning persons with disabilities are treated the same way as to their counter-parts without disabilities.

The Act contains an inbuilt system of monitoring the implementation and compliance with its provisions. However, it is weak, slow and therefore has not achieved much.

Chapter Four discusses the legal, institutional and policy framework for persons with disabilities in the Republic of Korea. This chapter is comparative in nature. It achieves its objectives by showing that South Korea‘s major pieces of legislation are in conformity with her Constitution and the Convention on the Rights of Persons with Disabilities. In addition, Korea‘s level of compliance with the laws on persons with disabilities is encouraging. Indeed, Nigeria needs to emulate the steps taken by Korea by amending her disability laws to make them bolder and enhance her implementation and monitoring levels.

Having laid this basis, it is fair to conclude that the Persons with Disabilities Act is not comprehensive enough and compliant to the International Convention on the Rights of Persons with Disabilities and the Constitution of Nigeria, 2018. In addition, the provisions of the Act have not been implemented fully in order to protect and enhance the rights and fundamental freedoms of persons with disabilities in Nigeria.

Recommendations

This research paper proposes the following recommendations to the Persons with Disabilities Act:

The definition of disability is not sufficiently inclusive of mental disability. It is too general and should be expanded so as to articulate the specific forms and types of disabilities, particularly mental disability;
The membership, leadership and control of the National Council for Persons with Disabilities should be opened up to adequately accommodate individuals, including those with disabilities, with training and experience on disability It should also expressly state that its membership would partly be drawn from persons with intellectual and psychological disabilities;
The Act has been a subject of piecemeal implementation. In order to effectively realize the objectives of the Act all provisions should be brought into operation. Although sections 22, 23, 24, 35(1), 35(2), 39 & 40 were gazetted so as to bring them into operation, their full effects have not been felt by persons with disabilities. Their gradual implementation should also be replaced with implementation in once;
There is an urgent need to harmonize the Act with the provisions of other statutes that directly and indirectly relate to disability. Some of these statutes are the Mental Health Act, Children Act, Penal Code and the Education Most importantly, the Act should be amended to conform to the Constitution of Nigeria, 2018 and the Convention on the Rights of Persons with Disabilities;

Some of the remedies proposed by the Act may not fully satisfy the infringed rights of persons with disabilities. The assumption of section 15(3) of the Act that all employees with disabilities will belong to trade unions and therefore amenable to the jurisdiction of the Industrial Court under the Trade Disputes Act is erroneous. This should be amended to make it possible for an individual to pursue their remedies individually;
The Act contains too many claw-back provisions which make its implementation difficult to achieve; for example, under sections 35 and 36, the Act purports to give tax exemptions but surprisingly under section 42, subjects this process to stringent conditions, discretionary powers of the Minister for Finance and availability of allocated finances;
The Act should be amended to provide for the early detection and identification of disability in order for the children with disabilities to begin enjoying the rights under the Act at the earliest Detection of disability should be made compulsory before, during and after birth as is the practice in the Republic of Korea;

Bibliography

―Inclusion of People with Disabilities in Nigeria‖ by International Labour Organization of October,
General Assembly Adopts Groundbreaking Convention, Optional Protocol on Rights of Persons with Disabilities: Delegations, Civil Society Hail First Human Rights Treaty of Twenty-First Century, GA/105554 (United Nations Department of Public Information December 13, 2006), available online at http://www.un.org/News/Press/docs/2006/ga10554.doc.htm (Last accessed on 24^th September, 2012).
George O Otieno Ochich, Bold and Generous or Timid and Faint-Hearted? A Panoramic Assessment of Nigeria’s Persons with Disabilities Act, 2018, The Law Society of Nigeria Journal Volume 4, 2008 No. 1 issue, at
Handicap International Report, Inclusion Guidelines on Disability and Mainstreaming for Development Programs in Nigeria, Handicap International Occasional Report of 1^st September, Available at http://www.google.co.ke/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved= 0CB8QFjAA&url=http%3A%2F%2FudpNigeria.org%2Findex.php%3Foption%3Dcom_d ocman%26task%3Ddoc_download%26gid%3D5%26Itemid%3D94&ei=OKdSUO_FCej S0QXc04DIBw&usg=AFQjCNFYxpSXa5KuPTTLMrWqpXA34svoKQ (Last accessed on 14^th September, 2012).
Kamau Esther, The Extent of Compliance with Article 12 and 29 of the Convention on the Rights of Persons with Disabilities in Nigeria with Specific Focus on Persons with Mental Disabilities. Available at http://www.kituochasheria.or.ke/index2.php?option=com_docman&task=doc_view&gid
=94&Itemid=92.(Last accessed on 9^th August, 2012).

Kishor Bhanushali, ―Changing Face of Disability Movement: From Charity to Empowerment‖. National Seminar on ―Revisiting Social Work in the field of Health-A Journey from Welfare to Empowerment, 20-21 February, 2007, Faculty of Social Work, The Maharaja Sayajirao University of Baroda,

Related Topics:

Other Topics