By Bizibrains Okpeh
As Gro Harlem Brundtland succinctly puts it; “To many people, staying out of harm’s way is a matter of locking doors and windows and avoiding dangerous places. To others, escape is not possible. The threat of violence [or discrimination] is behind those doors – well hidden from public view.” This is the unfortunate situation of persons with disabilities (PWDs) in Nigeria, who are often easy targets of disability-based violence or discrimination.
While violence has been with man since time immemorial, the recent history of mankind has witnessed an unprecedented surge in “creative” violent stories, written in blood and the sheer pain of victims and survivors – most of whom, left by society, are struggling to live with or through their chequered experiences. This is even more so among the community of PWDs. Simply put, discrimination is a behaviour that differentiates one person from another, especially for the distribution of social benefits and burdens. And disability-based discrimination, which is also violence is discrimination practised on a person with a disability solely or largely because of their circumstances or status as such.
Going by the World Health Organisation’s “15 percent rule,” about one billion people live with disabilities globally. In the case of Nigeria, more than 30 million Nigerians live with disabilities. These lots are usually objectified and subjected to all kinds of violence, discrimination, and disablement – arising from institutional, structural, and attitudinal barriers, including inequality/inequity, inaccessibility, and psychological violence or abuse – consisting in verbal insult, blaming, shaming, gaslighting, name-calling, rejection, dismissiveness, bullying, manipulation, infantilisation, minimisation, withholding, destruction of property, deprivation, and other aggressing, degrading, humiliating, and intimidating treatments and/or threats.
These, among other reasons, was why all well-meaning Nigerians, stakeholders, local and international development partners applauded the Federal Government of Nigeria, for enacting such protective laws as the Violence Against Persons (Prohibition) Act, 2015 and the Discrimination Against Persons with Disabilities (Prohibition) Act, 2019, (or the National Disability Act). Fashioned in the spirit of the United Nation’s Convention on the Rights of Persons with Disabilities (UNCRPD), the National Disability Act seeks “to provide for the full integration of persons with disabilities into the society, establish the National Commission for People with Disabilities and vest in the Commission the responsibilities for their education, health care, social-economic, and civil rights; and for related matters.” It prohibits any form of discrimination against PWDs by any person, organisation, or institution and makes it a punishable offence to so do (Section 1).
Also, the Act provides for accessibility of PWDs to physical structures, transportation, healthcare, education, and employment, including the equal right to work and opportunities for gainful employment, and makes it a punishable offence to do otherwise. Thus, employers of labour in public organisations are required to have PWDs constitute at least 5% of their workforce.
As laudable and somewhat far-reaching as the provisions of the National Disability Act are, the question remains, to what extent, if any, has the National Disability Act been implemented? The answer to this question is indeed mixed.
National Level
There is no gainsaying that, barring the limited function of awareness programmes vested in the Federal Ministry of Information (section 2), any effective implementation of the National Disability Act must necessarily start with the constitution of the Board and members of the NCPWD. This is because of its very important role as the proverbial watchdog, not only to ensure the construction and maintenance of an equal balance in the competing social security needs, facilities, or amenities between PWDs and their counterparts without disabilities, in terms of access to physical structures, transportation, education, employment, and healthcare but also to help deconstruct or sniff out circumstances where outright denial or subtle mitigation of the rights to such amenities exist with a view to remediation per its mandate under the Act.
Hence, the constitution of the Board and members of the NCPWD on 24 August 2020 by President Muhammadu Buhari, per sections 31 and 32, became perhaps the most important action towards the implementation of the National Disability Act. By the take-off of the NCPWD, therefore, it is expected that the rights guaranteed by the letters of the National Disability Act would transform or translate into actual benefits for PWDs. In fact, to a very considerable extent, whether the National Disability Act would deliver on its promises depends on the effectiveness of the NCPWD. So that the implementation of the National Disability Act becomes largely a function of the NCPWD’s enforcement of its mandates under the Act (sections 38 and 39). This then logically precipitates another question, how has the NCPWD fared since its constitution?
Generally, perhaps the implementation of the National Disability Act cannot be effectively analysed until after the five years transitory period. Nevertheless, it is barely three years since the signing of the National Disability Act into law and one year since the constitution of the NCPWD, an appraisal of its activities or proposed activities, thus far, might still offer some insight into the direction of the Commission and the level of implementation of the Act at this time.
Certificate of Identification for PWDs
To reiterate the words of Doma-Kutugi, empowerment, and accountability are very important configurators in any disability programme. This algorithm is quite simple to draw because what you cannot account for you cannot care or cater for. Hence, the need to account for PWDs cannot be overemphasised. Section 22 of the National Disability Act requires that persons with mental disabilities shall obtain Permanent Certificate of Disability (PCD) from the NCPWD and where a doctor suspects a person of having a disability, the doctor shall, with the approval of the NCPWD, issue Temporary Certificate of Disability (TCD), which shall last for 180 days, and shall be upgraded to a PDC where the disability endures beyond 180 days. Again, Sections 38 (f) and (l) of the Act respectively requires the NCPWD to regularly conduct enumeration exercises, collecting data (on special education) of PWDs, and issuing insignia of identification with PWDs.
With the data blind spot in the national disability diversity profile, it is difficult to engage in any meaningful targeted social security and empowerment programmes for PWDs. It is, therefore, a welcome development that the NCPWD seeks to embark on a national programme to certify all PWDs. However, whether not having a PCD or TCD would be a ground for denial of any rights or benefit under the Act or not, what is most necessary and desirable is a system of data collection for accurate (or near-perfect) accountability and more productive empowerment or engagement of PWDs. So, it is good that the NCPWD is beginning to make some moves in this direction. But these should not continue to gestate. It should be birthed.
Access to Physical Structures, Adjustments, and Accommodation
Section 3 requires, at least, all public buildings which do not guarantee access to PWDs to be adjusted by the inclusion of appropriate lifts, ramps, and other facilities that make for easy and independent accessibility by PWDs. Likewise, road sidewalks, pedestrian ways, or pavements shall be accessible to PWDs (section 5). Also, any plan for a public building shall not be approved unless they make provisions for accessibility by PWDs (section 7).
While we are beginning to see some public buildings comply with this provision, others are yet to comply. Even in the Federal Capital Territory, Abuja, we still have some high sidewalks which are inaccessible to independent usage by persons using wheelchairs. As of today, the NCPWD is somewhat powerless to force implementation in this respect, beyond engagement and advocacy, as sections 3 and 5 are subject to a five-year moratorium (section 6).
Access to Transportation
Under section 9 of the Act, providers of goods, services, and facilities shall not discriminate against PWDs by refusing them entry or altering the condition or manner of their services. Public (and private) transport providers are mandated to make their vehicles, trains, vessels, aircraft, etc. and work environment – parks, bus stops, seaports, railway stations, airports, etc. accessible to PWDs, including having lifts, ramps, wheelchairs, audible and visual display of their destinations (sections 10, 11, 12, 13, and 14). Again, this is relatively subject to a five-year transitory period (sections 10(2) and 13(3)).
However, as of today, not much is seen in this regard. For instance, most persons using wheelchairs still have to be carried in other to access public (and private) transport services. Also, there are reports of some airlines having policies that discriminate against PWDs, including “wheelchair charge”, “personal assistance/services fee” and refusal to fly PWDs at night. So, a lot more has to be done in this space.
Free, Appropriate, Equal, and Inclusive Education
The Act guarantees free, appropriate, equal, and inclusive education for PWDs in all public schools, that is, primary secondary, and tertiary level. And Braille, sign language, and other skills for communicating with PWDs shall form part of the curricula of primary, secondary and tertiary institutions (sections 17, 18, and 20). There is yet to be a satisfactory implementation of these provisions at this time. We still have the ill-equipped, ill-staffed, segregated, exclusive, and secluded so-called special schools scarcely scattered all over the country. Also, Braille and sign language are yet to be effectively integrated into the curricula of regular public schools. Worse still, of the 10.5 million out-of-school children in Nigeria today, 5-7 million are PWDs (JONAPWD Factsheet).
Access to Health Care and Information
The Act guarantees access to information and unfettered access to adequate healthcare, without discrimination, to PWDs and free healthcare for persons with mental disabilities in public institutions (Sections). Most public hospitals are still inaccessible to persons using wheelchairs and hospital staff is not particular trained to deal with PWDs, e.g. persons who are deaf. Communication remains a barrier as information is most often not in an accessible format for PWDs.
Equal Right to Work and Opportunities for Gainful Employment
The Act protects the rights of PWDs to equal work and employment (sections 28 and 29). Hence, all employers of labour in public institutions are, as much as possible, mandated to have 5% of employees who are PWDs. Again, not much has been achieved in this space at this time. To help drive the implementation of these provisions, the NCPWD has said it will reserve up to 60 to 70 percent of employment for qualified PWDs in its planned zonal offices. This is also in line with Section 38(d) of the Act which requires the NCPWD to make available not less than 5% of the workforce to qualified PWDs.
Breach of Rights and Remediation
The Act empowers the NCPWD to pursue remedies for and on behalf of PWDs against any individual, organisations, institutions, or government that contravenes the provisions of the Act, through the imposition of appropriate sanctions, making of necessary orders, and prosecution (sections 38(m), (n) and (o)). Also, any PWD whose rights have been violated can pursue remedies under the Act, including making a complaint about inaccessibility to the NCPWD and prosecution (sections 8 and 38(o)). Despite the wanton discrimination against PWDs even in the face of the Act, this writer is not aware of any prosecution seeking to actually test the provisions of the National Disability Act. Again, enforcement of certain provisions of the Act cannot be possible until after the five years transition period.
Subnational Level
The NCPWD plans to establish Zonal Offices in the 6-geopolitical zones to facilitate its mandate under the Act. Some have questioned whether it has the power to do so. According to the Act, the NCPWD shall establish in the head office such departments as may be deemed necessary for the effective and efficient functioning of the Commission (section 43). Again, the head office of the Commission shall be in Abuja (section 31(3)). It is, therefore, difficult to explain away how creating departments in the head office in Abuja can be construed as creating Zonal Offices in the 6-geopolitical zones. However, under Section 39(1) of the Act, the NCPWD “shall have power to do any lawful thing which will facilitated carrying out of its functions….” It is submitted that establishing Zonal Offices is a “lawful thing” and the NCPWD has lawful authority under the Act to do so.
Still, the importance of the NCPWD Zonal Offices cannot be overemphasised. This is because, being closer to the people, it would be better placed to monitor the enforcement of the provisions of the Act at the zonal level. Such a body might even partner with corresponding bodies of States within the zones in appropriate instances to further the objectives of the Act, a fortiori, the state domesticated law. It is expected that States should adopt, domesticate or localise the Act. As of 17 March 2020, only 10 states (out of 36 states) were reported to have domesticated the Act (the Guardian News Online).
While there are glimpses of the implementation of the National Disability Act, unfortunately, it is not yet ututu (morning) for PWDs. And each passing day presents real and justifiable fear that some of the modifications required to be made under the Act might not be fully accomplished before the end of the five-year transitory period. Perhaps we can only afford to continue to work, while we keep our fingers crossed. Nevertheless, the visible and invisible everyday suffering of PWDs in Nigeria must be of concern to all stakeholders. The government, civil society organisations, organisations of persons with disabilities, traditional rulers/chiefs, police, academia, and other local, national, and international development partners must play a part in significantly mitigating, if not eliminating, the burden of disability-based discrimination.
More Deliberate and intentional efforts should be made towards the enforcement/implementation of the National Disability Act to move from mere letters of the law to actual benefits for PWDs. Furthermore, since some of the provisions of the Act such as first consideration in queues, accommodation, boarding or alighting from transport facilities, etc. require attitudinal or behavioural change, the NCPWD and the Federal Ministry of Information should scale up awareness and enlightenment programmes in this regard, in particular and of the Act in general. More so, it may become imperative to use executive action/order to achieve the enforcement or implementation of certain provisions of the Act, especially those relating to accessibility and employment.
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.
