By Bizibrains Okpeh
Background
Ms Uzoamaka Stella Ike is a person with a physical disability. She uses a wheelchair and is always in the company of a personal caregiver. Nevertheless, she works twice as hard as anyone and leads a fulfilling and purposeful life, so much so that she is a great leader, leading a formidable movement of persons advocating for disability rights, which requires her to be on the move quite a lot, including attending some refresher training or fellowship programmes. She was to attend one of such programmes on 8 March 2021 when she was subjected to an utter discriminatory policy by Dana Air. She was charged an extra Four Thousand Five Hundred Naira (N4,500.00) just for her wheelchair. Despite her protestations and the emotional trauma and anxiety it caused her, she had to pay the sum else she would have been denied the lawful right to board the aircraft, having purchased return tickets for herself and her caregiver at the total cost of Ninety-Seven Thousand Four Hundred and Sixty Naira (N97,460.00).
Again, Dana Air repeated this abhorrent treatment at their Abuja terminal, where Miss Ike who was due to return home after the training was charged another Four Thousand Five Hundred Naira (N4,500.00) for what a staff of the airline now christened “Special Assistance Fee/Charge” which he claimed were to offset the bill of the airline’s partners who assisted persons in wheelchairs or other Persons with Disabilities (PWDs) that require help to board and/or disembark its aircraft. Even in the face of the express provision of Section 14 of the disability Act which mandates airlines to provide such assistance. Never mind that Miss Ike had a caregiver who for the most part assisted her in this regard.
Introduction
Despite the national outcry from Nigerians, especially the community of Persons With Disabilities (PWDs), against some of its discriminatory policies, Dana Air continues to play the proverbial unrepentant Devil that takes delight in inflicting maximum torture on his unwilling victims. Or so it seems. The airline has not relented in perpetuating policies that dehumanises or degrades passengers with disabilities, including reducing them to mere chargeable excess luggage, and which are a monumental affront to the overriding intent or purpose of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018, a fortiori, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”).
As if denying PWDs from flying at night is not enough grinch on their fundamental human rights, Dana Air has gone one step further to charge them more for being disabled, even at this time of the Covid-19 pandemic, when most PWDs are facing, even more, excruciating financial imbalance over and above most of their counterparts without disabilities.
Sadly enough, it must be said that despite the prohibition of all forms of discrimination under Section 42 of the Constitution, discrimination against persons with disabilities in Nigeria has become a national crisis. And the recent enactment of a national disability Act is yet to successfully prevent the mass exclusion and/or infringement or sordid mitigation of the basic human rights of persons with disabilities, such as safe and comfortable movement and/or accessible and affordable transportation, whether by land, water, or air, among others. But those who violate the rights of PWDs must know that they do so at their own peril. It is only in this province that one must properly appraise Dana Air’s “wheelchair charge”. Otherwise, one would be undermining the very essence of the National Disability Act.
The Position of the Law vis-à-vis Dana Air’s “Wheelchair Charge”
As if a wheelchair is a piece of mere chargeable excess luggage, which it is to Dana Air, the airline, which is fast becoming infamous for its discriminatory policies against PWDs, attached an extra charge to it, as was practised on Ike Stella. But can this policy withstand the furnace of the law without melting? We are not inclined to think so.
Generally, Section 34(1) of the Constitution renders inviolable the dignity of every person, including PWDs. So that a person cannot be subjected to any form of indignity, dehumanisation, or degradation except per the Constitution under Section 34(2) thereof. Likewise, Section 42 of the Constitution expressly prohibits any form of discriminatory practices or policies against any citizen of Nigeria, including PWDs. Furthermore, the “Discrimination Against Persons with Disabilities (Prohibition) Act, 2018, specifically prohibits any form of discrimination against persons with disabilities.
For instance, in the context of this essay, 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 following effect:
“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.”
An analysis of Section 14 above, shows that it is not vulnerable to any self-serving and/or contemptible construction. Thus, according to the Act, no airline or aviation institution, including Dana Air, is permitted to charge an extra fee for making its aircraft accessible to PWDs. Neither could such obnoxious interpretation be inferred from the Act. Instead, the Act mandates all airlines to “ensure the accessibility of their aircraft to persons with disabilities”, “make available presentable and functional wheelchairs for the conveyance of persons with disabilities who need them to and from the aircraft” and “make available for the conveyance of persons with disabilities who need presentable and functional assistive and protective devices to and from the aircraft.”
This is absolute. It is not negotiable. How much more is it chargeable where the wheelchair, which by law should ordinarily be provided by the airline, is provided by a passenger with a disability. Stated differently, the cost for accessibility (including wheelchair and other assistive/protective devices) is (or should be) by law that of an airline and not PWDs. Perhaps it is even more immoral and despicable, if not an aggravating factor, for an airline to charge for a wheelchair it did not provide. This is even more so where the airline has charged the passenger with a disability for his/her caregiver, as was/is the case in this instance.
Thus, to guarantee the dignity of PWDs and to remove any additional cost or financial impediment that may hinder or clog their freedom of movement as per Section 41 of the Constitution, the Act does not see assistive devices (wheelchair, etc.) as chargeable excess luggage, and rightly so. This is because such assistive devices are (or should be) an inherent part of the persons of PWDs, without which their right to accessible movement under the law would not be guaranteed. And it is (or would be) dehumanising and degrading to subject such devices to extra charges on this account as Dana Air has done. In any case, because the wheelchair was/is part of Stella, charging her extra for it was tantamount to equating her to a piece of mere excess luggage against the law. Only that while passengers without disabilities may elect to abandon excess luggage, Stella and others like her cannot afford to do so.
What more, just like the question of the ultimate bearer of the cost of a wheelchair or other assistive/protective devices, one may ask; who bears the cost of accompanying aides or personal care attendants or caregivers? Although the National Disability Act is expressly silent on this issue, and 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 trite 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 so, which it is, 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 or extra charges for wheelchairs or other assistive/protective devices. Hence, one should be inclined to think that it is in this light that the Act should be understood, otherwise, the purpose of the Act would be defeated.
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.” (which is somewhat analogous to the right to freedom of movement under our Constitution).
Put differently, while persons with disabilities are responsible for their air tickets, their wheelchairs, or other assistive/protective devices are not subject to extra charges and their accompanying caregivers (if they so require) are to fly free. It is submitted that this is sound reasoning. And our courts should be so persuaded in similar cases.
Conclusion
In the final analysis, it is discriminatory, illegal, and unconstitutional for Dana Air to demand and indeed collect “wheelchair charge” from PWDs and Uzoamaka Stella Ike, in particular. As the National Disability Act does not confer on the airline or any other airline, the power to limit or derogate from the rights so entitled or duties/obligations so imposed thereunder. 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. Therefore, all stakeholders and well-meaning Nigerians must condemn this immoral, illegal, and unjustifiable charge in very strong terms and not sit by and watch this gross injustice against persons with disabilities by airlines in Nigeria, particularly Dana Airlines.
Okpeh is a lawyer and a disability rights advocate, researcher, and analyst. Reach him at bizibrains@gmail.com. This article is sponsored by the Inclusive Friends Association (IFA) with support from the Ford Foundation.
