By
Bizibrains Okpeh
Background
As if the second wave of the Covid-19 pandemic is not enough grinch on the imminent Christmas Day celebration, the infamous news, since making the rounds, of the alleged discrimination practised on Dr. Chike Okogwu, a person with a disability (PWD), by Dana Air has further dampened the festive mood of Nigerians, especially persons with disabilities, at this difficult time.
Dr. Okogwu’s Allegation
On Sunday, 20 December 2020, Dr. Okogwu, via a late-night tweet, alleged that Dana Air prevented him from boarding its airplane only by reason that he was in a wheelchair. In his words, “This is indeed the height of discrimination against persons with disabilities in Nigeria. I booked a 7:20 PM flight from Abuja-Lagos which was rescheduled to 9:05 PM. I got my boarding pass only for Dana Air to say a new policy forbids carrying us with wheelchair”.
According to him, this was further confirmed when he “moved over to the Duty Manager who confirmed same that I cannot board their flight because it was the last night flight.” He further alleged that, perhaps, when the possibility of missing his medical appointment became real, as all “entreaties fell on deaf ears”, he “got enraged by their nonchalance and insensitivity and yes, damaged their counter”.
Dana Air’s Counter Claim
As far as Dana Air is concerned, Dr. Okogwu is a “troublesome”, and in this particular case, a violent passenger who attacked and injured a member of its staff and destroyed its property simply because it took a positive action for his “safety”. According to a press release by the company, Dr. Okogwu “got to our counter yesterday, 20th December 2020 at about 8pm for his flight and when our Duty Manager noticed him in the midst of the upsurge of passengers, approached him and politely explained to him that as a matter of policy, comfort and safety of our guests, we do not carry Special Passengers at night while offering to check him in first, on the 7am flight the next day. The release further stated that Dr. Okogwu “…blatantly refused the offer and went violent on the Duty Manager causing her injuries in the process. This same passenger also went further to destroy our check-in systems, chairs, Covid-19 Protective glass shields and weighing machines at our counter in Abuja.”
Further noting that it is one of the few airlines that allow PWDs to use its aircraft, it emphasised that “Dr. Chike Okogwu has enjoyed the luxury of flying with us for many years even as other airlines have totally refused to even sell tickets to him as a result of his reputation of verbally attacking able-bodied staff assigned to assist him whenever he is flying.”
Introduction
It is a sheer reproach that despite the prohibition of all forms of discrimination under Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”), discrimination against persons with disabilities in Nigeria has become a national crisis. And it is apparent that the recent enactment of a national disability Act is yet to successfully prevent the mass exclusion of persons with disabilities from enjoying certain basic human rights and social amenities, such as, among others, the safe and comfortable movement of Nigerians from place to place by land, water, or air transportation.
It is in this context that the recent event, which unfortunately is only one among many, between Dr. Okogwu and Dana Air has generally and particularly raised many salient questions that require prompt attention. Some of these are discussed hereunder.
1. The Position of the Law vis-à-vis Dana Air’s New Policy
For the “safety” of persons with disabilities, Dana Air introduced a new policy to the effect that passengers with disabilities cannot fly at night and that in any case, they cannot fly alone but in company of aides or personal care attendants. But can this policy withstand the sharp edge of the law? I do not think so.
Generally, Section 42 of the Constitution expressly prohibits any form of discriminatory practices or policies against any citizen of Nigeria, including persons with disabilities. Furthermore, the “Discrimination Against Persons with Disabilities (Prohibition) Act, 2018, specifically prohibits any form of discrimination against persons with disabilities. For instance, some of the relevant sections of the Act include:
“1 (1) A person with disability shall not be discriminated against on the ground of his disability by any person or institution in any manner or circumstance.
(2) A person who contravenes subsection (1), commits an offence and is liable on conviction to if the person is –
(a) a body corporate, a fine of N1,000,000.00; and
(b) an individual, a fine of N100,000.00 or six months imprisonment or both
(3) Notwithstanding the prosecution, conviction or otherwise of any person for any offence under this Act, the person against whom the crime or wrong is committed may maintain a civil action against the person committing the offence or causing the injury, without prejudice to any conviction or acquittal.”
Again, when the die falls on the management and/or operation of airlines, Section 14 of the Act provides to the effect that,
“14. All airlines operating in Nigeria shall –
(a) ensure the accessibility of their aircraft to persons with disabilities;
(b) make available presentable and functional wheelchairs for the conveyance of persons with disabilities who need them to and from the aircraft;
(c) ensure that persons with disabilities are assisted to get on and off board in safety and reasonable comfort; and
(d) ensure that persons with disabilities are accorded priority while boarding and disembarking from the aircraft.
(2) All airports shall make available for the conveyance of persons with disabilities who need presentable and functional assistive and protective devices to and from the aircraft.”
A careful appraisal of the above Section shows that it is not subject to any limitations or specific time frame. Neither does it confer on any airline or aviation institution the power to limit or derogate from the rights so entitled or duties/obligations so imposed. These rights and duties/obligations subsist at all times and in all circumstances, under the sun, in the rain, and even in the darkest cover of darkness.
In other words, nothing in Section 14 suggests that persons with disabilities cannot fly at night. If anything, it is to the contrary, to the extent that it reinforces the fundamental right of every person, including persons with disabilities, to freedom of movement, at all times, as encapsulated in Section 41 of the Constitution, subject only to the limitation as stipulated under Section 45 of the same Constitution, which limitation does not apply in this instance.
Moreover, notwithstanding the power of airlines to reschedule flights (with notice) due to certain justifiable reasons, inherent in the right to freedom of movement is the right to choose “when” and “where” to move. Night travel by air or whatever means is, therefore, not the exclusive preserve of a privileged group. Perhaps Dana Air has certain information that is not within public knowledge, I do not think that flying during the day makes it necessarily safer than at night just because a person (passenger) has a disability, without more.
It is, therefore, discriminatory and hardly justifiable to say that night flight poses a greater safety risk to persons with disabilities over and above their counterparts without disabilities.
Turning to the issue that persons with disabilities cannot fly alone but in the company of aides or personal care attendants, certain salient questions have to be asked and answered. What does the law say in this regard? Who bears the cost of air tickets for such accompanying aides?
First, it must be recognised that the national disability Act is expressly silent on this issue. And that in any case, nothing in the Act suggests that persons with disabilities must fly with accompanying aides (which is good in itself, especially for persons with disabilities who necessarily need one). However, it is a salient law that an Act should be construed in a manner that gives effect to its overall purpose or the true intention of the legislature (see Bamisile v. Osasuyi (2007) LPELR-8221). What then is the overriding purpose of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018?
It is this, that persons with disabilities reserve the rights to be included in all aspects of life without any form of discrimination whatsoever, to enjoy all fundamental legal and social rights to the extent that it is the duty/obligation of every person or institution to so ensure as stipulated under the Act.
The whole Act is, therefore, essentially nothing but a rule of duties/obligations imposed on persons, institutions and government for the sole benefit of persons with disabilities. If this were to be the case, it cannot be within the contemplation of the Act or the legislative intention of the draftsman to impose an additional financial burden on persons with disabilities in the form of air tickets for accompanying aides or personal care attendants. I humbly think that it is in this light that the Act should be understood, as to construe it otherwise, would defeat the purpose of the Act.
In fact, there are examples to this effect in other climes. For instance, in Quebec Canada, where a similar issue came up in P.A. c Air Canada, 2019 QCCS 606 (CanLII) (See Full judgement here http://canlii.ca/t/hxqt9), the Quebec Superior Court of Justice, having found Air Canada to have discriminated against passengers with disabilities by requiring them to purchase tickets for their personal care attendants/accompanying aides, went further to hold that “the fact that a person must pay for an additional seat because of their disability constituted an undue obstacle to their mobility within the meaning of the Canada Transportation Act.” [i.e right to freedom of movement under our Constitution].
In other words, while persons with disabilities are responsible for their air tickets, their accompanying aides or personal care attendants (if they so require) are to fly free. In my humble opinion, this is a sound reasoning. And our courts should be so persuaded in similar cases.
2. Whether Airlines Can Refuse to Sell Air Tickets to Prospective Passengers, Especially Persons With Disabilities, for Reason Only That They Are “Troublesome” or Any Other Reason Whatsoever
The response of Dana Air in this unfortunate incident further reveals the somewhat systemic discriminatory practices of airlines against passengers, and in this instance, passengers (persons) with disabilities.
To accentuate its “magnanimity in kindness”, Dana Air stated that other airlines even refuse to sell air tickets to Dr. Okogwu on account of his “troublesome” nature. This curiously raises a fundamental question in the context of this essay. Is it not discriminatory for an airline not to sell air tickets to a person with a disability for whatever reason? With respect, I think it is.
Generally, the “Cab Rank Rule” presupposes that any person engaged in the business of riding, driving, carrying, ferrying, sailing, or flying people from one place to another is under obligation to so do, irrespective of the disposition, character, or general temperament of the person/patron to be so ridden, driven, carried, ferried, sailed or flown, provided that such a person/patron is on the rank/queue. That is to say, it does not lie in the hands of transport operators or institutions, including airlines, to cherry-pick among patrons/passengers or prospective patrons/passengers for purposes of determining whom to ride, drive, carry, ferry, sail or fly. Stated differently, the law frowns at discriminatory or selective carriage, as this constitutes an impediment to the right to freedom of movement.
Perhaps, it is to emphasise the “Cab Rank Rule”, inter alia, that Section 26 (1) of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 provides to the effect that in any queue (including a real or virtual queue for airline tickets/ticketing or boarding), persons with disabilities shall be given overriding priority to positive ends.
It is, therefore, discriminatory for airlines not to attend to persons with disabilities or refuse to sell air tickets to them simply because they are deemed “troublesome” or for any reason whatsoever. This is because the remedy for any such “troublesomeness” does not necessarily lie in unilateral restriction or total denial of the fundamental right to freedom of movement of the victim, but may lie in civil or criminal action as the case may be. In any case, even if there should be any such sanction as a denial of air ticket or boarding, I think it can only be properly levied by an order of a competent court of law.
3. The Proper Way to Respond in the Face of Discrimination
The event under consideration further buttresses how quickly a discriminatory practice could degenerate to the breakdown of law and order. This is why any form of discrimination must be eschewed. By no means do I intend to downplay the effect of discrimination practised on anyone. Instead, I would like to double down on the fact that discrimination, in whatever form, most often, leaves the sufferer or victim embittered, which bitterness, sometimes, manifests in visible anger and rage. In the heat of the moment, therefore, many things could go wrong.
Barely two years after its enactment, the national disability Act is yet to be tested before the court of law, even as discrimination against persons with disabilities continues to surge. While persons with disabilities must be ready and willing to call out perpetrators of discriminatory practices and not accept or swallow any form of discrimination against them, they should be even more willing to demonstrate their frustration in the face of discrimination peacefully.
It is for this reason, therefore, that law exists and persons with disabilities should necessarily find succour within the law. Perhaps it is high time persons with disabilities and organisations of persons with disabilities started pushing for the enforcement of the national disability Act (excepting such provisions of the Act which are subject to a subsisting five-year transitory period under Section 6 thereof). It is time we asked questions of the court. It is time to hold people/institutions to account.
Conclusion
Any policy which purportedly singles out persons with disabilities and precludes them from traveling at night (such as the new policy of Dana Air) or banishes them to only day travels for whatever reason (without recourse to a competent court of law) is nothing but discriminatory, illegal and unconstitutional. Likewise, it is discriminatory, illegal, and against subsisting laws for any airline (or any other transport institution) to, unilaterally or without an order of a competent court of law, refuse to sell air tickets (or whatever tickets) to persons with disabilities for whatever reason. All such policies must therefore be rescinded as they are antithetical to a progressive and inclusive society.Bizibrains Okpeh is a legal practitioner and a disability rights advocate. Reach
