The Nature And Status Of Disability Legislation In Nigeria: Avoiding The Seeming Constitutional Uncertainty In Disability Jurisprudence

By Bizibrains Okpeh

There might be no official national data that accurately represents the number of persons with disabilities in Nigeria. This is largely due to the dearth of disability accountability, which has resulted in a somewhat considerable disability diversity data blind spot in Nigeria. Though Data from the 2006 national census puts the number at 3,253,169, that is 2.32% of the total population of 140,431,790 at the time (Wikipedia). In 2018, the National Population Commission put the number at about 19 million, that is, 9.6% of the population in that year (Umeh, N., Centre for Human Rights, Updated Country Report, 2019). It is largely believed that these numbers were grossly underreported and, in any case, do not reflect current realities. Nevertheless, according to the World Health Organisation (WHO), at least, 15 percent of the population of any given society or community has one form of disability or the other (WHO Disability World Report, 2011).

Hence, it can be said that more than 30 million Nigerians have some form of disability. These lots face peculiar attitudinal, institutional, structural, and socio-economic barriers that impede their full integration and participation in society, making them vulnerable or susceptible to the devastating effects of social inequalities, isolation, exclusion, and inequities much more than persons without disabilities. This disability-based discrimination and violence cut across all areas, amenities, or facilities of life, including inadequate or lack of access to physical structures, transportation, information, education, opportunities for work or gainful employment, and health care, among others. Hence, there is a greater need to protect the welfare and human rights of persons with disabilities if the quest for inclusive and sustainable development is to be attained.

Over the years, several attempts have been made to effectively address the disability question in Nigeria by various governments, culminating in the recent enactment of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 (“the National Disability Act”). While progress has been made here and there, even this is yet to transform into fundamental improvements in the lives and livelihoods of persons with disabilities. While many states have not adopted the National Disability Act nor enacted their own disability laws, the seeming uncertainty respecting the enforcement and enforceability of disability rights in the Constitution remains one of the veritable factors still militating against the full realisation of the human rights and God-given talents and potentials of persons with disabilities in Nigeria.

This air of uncertainty precipitates many legal questions. Do states have the power to legislate on the welfare of persons with disabilities and disability issues or enact their own disability laws independent of and different from the National Disability Act? (Why) Should States adopt the National Disability Act? And what is the legal nature or status of disability law/legislation/jurisprudence in Nigeria?

State of Disability Welfare and Rights Before the Enactment of the National Disability Act

The National Disability Act was not enacted or did not come into force until after about 59 years of Nigeria’s independence and 12 years of Nigeria’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Before the enactment of the National Disability Act, the welfare or wellbeing of vulnerable members of Nigerian society, including children, young persons, the sick, the aged, and persons with disabilities, was primarily catered to through various charities and welfare schemes under national and subnational or state welfare protection laws and/or policies.

Apart from the Constitution, which, among other things, protects the human rights of Nigerians generally, one of the major policy actions geared towards disability welfare/rights at the national or federal level was the Nigerians with Disabilities Decree of 1993. The purpose of the Decree was to provide a clear and comprehensive legal protection and security for Nigerians with disabilities as well as establish standards for enforcement and privileges guaranteed under the Decree and any other law (see Section 1(a) thereof). Besides not being far-reaching enough, perhaps one of the major drawbacks of the Decree was that it did not provide for a robust remediation mechanism and/or effective means of influencing or compelling enforcement (see Section 14 – Special Functions of the Commission – thereof). Hence, its observance or abeyance would have lied more in breaches. Nevertheless, it marked the true beginning of a snail-paced shift from “charity-qua-charity” to “charity-qua-legal rights” in the national disability rights discourse.

More recently, there were/are the National Policy and Implementation Guidelines on Albinism in Nigeria 2013, National Policy on Special Needs Education in Nigeria and Implementation Guidelines, 2015, National Policy on Education 2016, National Health Policy 2016, National Action Plan for the Promotion and Protection of Human Rights in Nigeria 2017-2021, National Policy on Disabilities in Nigeria 2017 (Revised in 2018), National Policy on Ageing, National Strategic Health Development Plan 2018-2022, and Senior Citizens Centre Act 2018 among others.

At the subnational or state level, some states had (and still have) their own disability rights and welfare protection laws. These states include Lagos, Ekiti, Plateau, Bauchi, Jigawa, Nasarawa, Kano, and Kwara, with the Lagos State Special People’s Law 2011, Rights of Persons with Disabilities Law 2013, Plateau State Disability Rights Law 2005, Bauchi State Disability Rights Law 2015, Jigawa State Persons with Disabilities Law 2017, Nasarawa State Disability Rights Commission Law, 2018, Kano State Persons Living with Disabilities Law 2018, and Kwara State People with Disabilities (Amendment) Law, 2017, respectively (see Akinmutimi, M., Human rights council resolution 37/22 concerning the rights of persons with disabilities – inputs by national human rights commission, Nigeria).

Discrimination Against Persons with Disabilities (Prohibition) Act, 2018

Generally, the National Disability Act is fashioned in the spirit of the Convention on the Rights of Persons with Disabilities (CRPD). Aimed at ensuring the full integration of persons with disabilities into Nigerian society, it prohibits and criminalises any form of discrimination against persons with disabilities by any person or institution (Section 1). It further provides for access to physical structures, transportation, healthcare, free, appropriate, equal, and inclusive education and information, and equal right to work, and opportunities for gainful employment, including that persons with disabilities shall constitute 5% of employment in all public organisations or employments (Sections 3, 5, 7, 9 – 15, 17, 18, 20, 21, 28, and 29. Also, see generally the National Disability Act).

Fundamentally, the Act established the National Commission for Persons with Disabilities (NCPWD) to ensure the enforcement of the Act (Section 31). The NCPWD has several functions under the Act, including but not limited to, disability accountability and data collection, empowerment programmes (Sections 22, 38, and the power to pursue remedies for and on behalf of persons with disabilities against any individual, organisations, institutions, or government for any breach of the provisions of the Act through the imposition of appropriate sanctions, orders, and prosecution (Sections 22, 32, 38 (m)(n)(o) & 39).

Should States Adopt the National Disability Act, Mutatis Mutandis, or Enact their Own Independent Disability Laws?

Following the enactment or passage of the National Disability Bill in 2018 and its execution and coming into force on the 23rd day of January 2019, there have been calls for states to adopt and domesticate or localise it, having recourse to local circumstances and devoid of any inconsistencies. However, these calls have been met with mixed reactions. Some believe that nothing precludes states from enacting their own disability laws independent of the National Disability Act.

Worse still, some states which had some form of disability laws before the enactment of the National Disability Act seem to have “abandoned” them even without adopting the National Disability Act. So that as of 17 March 2020, only ten states (out of 36) were reported to have “adopted” the National Disability Act and/or enacted their own disability laws, that is, Kano, Jigawa, Anambra, Kogi, Ondo, Lagos, Ekiti, Plateau, Kwara, and Bauchi (the Guardian News Online). Perhaps, this slapdash attitude towards disability rights and welfare may not be unconnected with or at least facilitated by, the somewhat air of uncertainty inherent in the Constitution in respect of disability matters.

Notwithstanding its shortcomings, the National Disability Act views disability rights primarily from the prism of human rights, ushering in a new and unprecedented paradigm in the disability rights movement in Nigeria. Hence, to some extent, some of the prior and subsisting disability laws of some states may be inadequate or wanting in juxtaposition with the National Disability Act.

Whatever the case, as our law currently stands, there could be a real likelihood that any argument as to whether disability rights/welfare is a matter under the exclusive legislative list or the concurrent legislative list could go either way. A third opinion could even be that it is a residual matter not expressly stated in both the exclusive and concurrent legislative list. It is perhaps pertinent that we attempt to unravel this considerable conundrum.

Legislative Status of Disability Law Under the Nigerian Constitution, Exclusive or Concurrent?

There seems to be some kind of “confusion” (or at least a need for some more clarity) as to whether or not disability law is (or should be) an item on the Exclusive Legislative List. This is important to determine the legislative authority in respect of disability matters. And to ascertain whether disability issues are matters under the Exclusive Legislative List, in which case, they would be matters for the federal government and subject only to the legislative authority of the National Assembly, or the Concurrent Legislative List, in which case, they would be matters for both the federal and state governments to be legislated upon by both the National Assembly and the State Houses of Assembly (see A-G Abia State v A-G Federation (2002) 6 NWLR (pt.763) 264; Adamu v FRN (2021) LPELR – 54598).

However, this is subject to the provisions of the Constitution and the power of the federal legislature to make laws to cover the field in certain matters, usually referred to as the “principle of covering the field” in constitutionalism and constitution law. The legal effect is that state legislatures have no vires, competence, or legal authority to (further) legislate on such matters  (see MPPP v INEC (2015) LPELR – 25706; Airtel Networks Ltd v A-G Kwara State (2014) LPELR – 23790).

This seeming “confusion” may not be unconnected with the “passive” or general manner in which disability rights are incorporated into the Constitution. First, there is Chapter II of the Constitution, constituting the Fundamental Objectives and Directive Principles of State Policy (FODPSP) where the phrase “welfare of the disabled” appears only once (see Section 16(2)(d) of the Constitution). Again, Chapter II of the Constitution is not justiciable. In other words, it is not enforceable, per se, without further legislative or policy action or as an appendage to fundamental right actions. This is to say that, as a general principle of law, the beneficiaries of the provisions thereunder, including persons with disabilities, cannot enforce it as of right unlike the Bill of Rights (fundamental human rights) enshrined under Chapter IV of the Constitution (see Okogie v A-G Lagos State (1981) 1 NCR 218; Kehinde v ACN (2012) LPELR – 14821).

Worse still, the fundamental human rights encapsulated under Chapter IV of the Constitution is grossly general and make no specific provisions in respect of persons with disabilities. For instance, Section 34(a) of the Constitution is to the effect that every individual is entitled to respect for the dignity of his person and no person shall be subject to torture, inhuman, or degrading treatment.

Also, Section 42 prohibits the discrimination of any person to the effect that a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion, or political opinion shall not by reason only that he is such a person be subjected, either expressly by or in the practical application of any law in force in Nigeria or any executive or administrative action of government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject or be accorded any advantage that is not accorded to other citizens of Nigeria. And no citizen of Nigeria shall be subjected to any disability or depravity merely by reason of the circumstance of his birth.

While the provisions of Chapter IV also protect persons with disabilities, they are not specific to them. Hence, it appears under the Constitution, there are no constitutionally enforceable human rights provisions that are particular or specific to persons with disabilities. This is unlike what is obtainable in some other jurisdictions where disability rights are specifically provided for under their Constitutions and thereby firmly constitutionalised as enforceable human rights.

For instance, the Constitution of South Africa prohibits discrimination, whether directly or indirectly, against anyone on any grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth (see Sections 9(3)(4) and (5) of the Constitution of South Africa). Likewise, the Constitution of Uganda provides to the effect that persons with disabilities have a right to respect and human dignity, and the State and society shall take appropriate measures to ensure that they realise their full mental and physical potential; and Parliament shall enact laws appropriate for the protection of persons with disabilities (see Article 35 of the Constitution of Uganda).

The Constitutions of Ghana and Rwanda are also a veritable reference in this regard (see Article 29 of the Constitution of Ghana and Article 11 of the Constitution of Rwanda, respectively). Also, see generally Imam & Mustapha, African Journal of International and Comparative Law 24.3 (2016): 439–459 for a fuller discussion on the above).

Needless to say that from the above Constitutions, especially the Constitution of Uganda, the power to legislate on disability matters is expressly and conspicuously vested on the Parliament of Uganda. This may not be said of the Nigerian Constitution, which only vests the power of further legislative action geared towards the enforcement of any of the provisions of Chapter II of the Constitution, including Section 16(2)(d), which specifically provides for the protection of the “welfare of the disabled,” on the federal legislature (see Item 60(a), Part II of the Second Schedule of the Constitution).

However, perhaps it could be quite simplistic and not very thoughtful to take the above view, simpliciter. Hence, there is a need for a more critical appraisal to ascertain all the possible combined effects of the FODPSP and Item 60(a) of the Constitution. Contrary to the argument that disability law is not an item on the Concurrent Legislative List (never mind that it could also be argued that it is not “expressly” stated in the Exclusive Legislative List), a second thought could arise thus; since there are other aspects of the FODPSP, such as education, which are equally part of the items on the Concurrent Legislative List, and which are also important aspects of disability rights/welfare, would it be correct to say that state legislatures do not have the authority to legislate on such items in respect of persons with disabilities?

If the answer to the above should be in the affirmative, it then lends credence to the argument that nothing precludes state legislatures from legislating on disability issues. It further strengthens the “human rights argument” to the effect that disability rights are inherently human rights and should be the concern of all governments and organs of the Federation, whether federal, or state, or otherwise.

In any case, assuming the true position of the law is that disability law is subject to the legislative authority of both the federal and state legislatures (this writer does not necessarily think it is), where there is an Act of the National Assembly in this regard, would it be correct to say that the federal legislature has covered the field or that disability law should be one in which the principle of covering the field should apply?

This may not necessarily be so. The doctrine of covering the field forbids the National Assembly from enacting a law in respect of a matter which there is already in existence provisions of the Constitution. It also entails that a State House of Assembly is forbidden from enacting any law in respect of a matter which there is already in existence provisions of the Constitution or an Act of the National Assembly on the same subject matter.

However, an Act of the National Assembly on a subject matter which a State House of Assembly can also make laws does not ipso facto cover the field, except there is a manifest intention on the face of the Act to do so, or that from the generality of the provisions of the Act, it can be necessarily inferred or implied that the federal legislature intended to cover the field. So that the mere fact that two laws exist on the same subject matter, one an Act of the National Assembly and the other a law of a state, does not mean that the two laws cannot co-exist if they can both be obeyed without the latter derogating from the former or manifesting any inconsistencies in relation to it, in which case it will be void to the extent of any such inconsistencies (see AG Ogun State v A-G Federation; INEC v Musa (2003) LPELR – 1515; MPPP v INEC (supra); Airtel Networks Ltd v A-G Kwara State (supra)).

The National Disability Act as an Enforcement of Chapter II of the Constitution

The Fundamental Objectives and Directive Principles of State Policy enshrined in Chapter II of the  Constitution harbours far-reaching socio-economic and human rights of Nigerians, including persons with disabilities, and unambiguously outlines the fundamental objectives and principles, forming the immovable rock upon which exists and is defined the social contract between the Nigerian State and Nigerians and the realisation of which the State must pursue.

One of such rights of the people and obligation of the State is as contained under Section 16(2)(d), which provides to the effect that the Nigerian State shall direct its policy towards ensuring that suitable and adequate shelter, suitable and adequate food, a reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits, and welfare of the disabled are provided for all citizens.  Needless to say that one of the combined effects of the FODPSP, as it affects persons with disabilities, is to enhance their welfare, and wellbeing, provide for and secure their social needs, and protect their human rights.

Regrettably, the rights enshrined under Chapter II of the Constitution are not justiciable, per se, except at the instance of the State through further legislative and/or policy action by the federal government (through) and/or the federal legislature, upon which the Constitution has bestowed the exclusive power in this respect. Hence, Item 60(a), Part I of the Second Schedule of the Constitution, provides to the effect that the exclusive powers of the federal legislature (National Assembly) shall include the establishment and regulation of authorities/commissions/agencies for the Federation or any part thereof to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in Chapter II of the Constitution.

Since disability rights and welfare are matters under Chapter II of the Constitution, especially Section 16(2)(d) thereof, one could say that any national law, in this instance the National Disability Act, enacted to enforce the FODP contained in the Constitution shall apply throughout the Federation as state legislatures do not have the vires or competence to enforce any of the provisions of Chapter II of the Constitution, including matters affecting persons with disabilities, as the same are ( “expressly” or tacitly or seemingly) under the Exclusive Legislative List and exclusive legislative jurisdiction of the federal legislature or National Assembly.

Nevertheless, there are some matters which are under Chapter II of the Constitution and also form part of the matters on the concurrent legislative list. One of such matters is education, which both the federal and state legislatures can legislate upon (see Item 27, 28, 29, & 30 of Part II of the Second Schedule of the Constitution). Could it be reasonable (in law) to argue that the state legislatures cannot legislate on the education of persons with disabilities in the various states?

The National Disability Act as an Enforcement, Domestication, or Nationalisation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2006

There is no gainsaying that only the Nigerian State (federal government) has the competence or authority to enter into and enforce (through the National Assembly) any international obligation, agreement, partnership, convention, treaty, protocol, etc. for and on behalf of the federation and the federating units or states. This is the import of item 31, Part I of the Second Schedule of the Constitution, which provides to the effect that the federal legislature (government) shall have exclusive powers in respect of the implementation of any treaties relating to matters on the exclusive legislative list, including disability matters, which are part of the FODPSP incorporated in the exclusive legislative list.

Further to the above, Section 12(1) of the Constitution provides to the effect that only a treaty domesticated or nationalised in Nigeria by an Act of the National Assembly shall have the force of law. A treaty or convention is a/an compact, alliance, accord, covenant, pact, agreement or contract – bilateral or multilateral – between sovereign States (two or more) whereby they establish or seek to establish a relationship between themselves governed by international law (see Abacha v Fawehinmi (2000) LPELR – 14).

Nigeria is a State party to many international treaties or conventions, including the CRPD and its Optional Protocol, which were ratified in 2007 and 2010 respectively. The CRPD is perhaps the gold or ultimate standard for the welfare and protection of the human rights of persons with disabilities. It is an embodiment of international best practices and principles on how any democratic and progressive nation should interface or relate with persons with disabilities in a humanised and sustainable manner, having regards to the protection of their human rights, especially their rights to dignity and fundamental freedoms and liberties.

The CRPD charges State parties to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” (Article 1, CRPD 2006). Thus, State parties must take reasonable and effective steps to raise awareness throughout society regarding persons with disabilities, combat stereotypes, prejudices and harmful practices relating to persons with disabilities, and promote awareness of the capabilities and contributions of persons with disabilities as well as access to physical environment and employment (Article 8).

The Convention further mandates State parties to collect disaggregated statistics and data respecting persons with disabilities relevant for international (and domestic) comparisons, policy-making, and implementation (Article 31) and support research on disability and related services (WHO Global Action Plan 2014-2021, p.3, para.12). Fundamentally, under the Convention persons with disabilities are not seen as “objects” of charity but as “subjects” of enforceable human rights (WHO World Report on Disability, p.10). Hence, at its core is empowerment and accountability, to ensure the full participation of persons with disabilities as active stakeholders in society (Doma-Kutugi & Anigbogu, pp.227-8).

However, under Section 12(1) of the Constitution, “No treaty between the federation and any other country shall have the force of law [in Nigeria] except to the extent to which any such treaty has been enacted into law by the National Assembly.” The question may then be asked, has the CRPD been domesticated or nationalised in Nigeria by the enactment of the National Disability Act? In other words, what does the phrase “to the extent’ in Section 12(1) of the Constitution mean?

There is the argument that the enactment of the National Disability Act does not necessarily mean the domestication of the CRPD, notwithstanding that the former incorporated many of or has similar provisions with the latter.  Because the whole provisions of the CRPD have not been domesticated or that the Act does not expressly say so. Why this argument is indeed plausible, in a sense, it may be misleading. The international flavour of international treaties does not preclude the National Assembly from interfering with them. Thus, a ratified treaty or convention, including the CRPD, may be amended, altered, or otherwise modified to suit local circumstances, or even repealed altogether by the National Assembly, and whether such modification or repeal is wise or just cannot be the subject of any judicial question (see Abacha v Fawehinmi; Chae Chin Ping v United States 130, US.181).

While the domestication of a treaty does not necessarily mean that the treaty should be enacted by the National Assembly holus-bolus, “The use of the phrase ‘to the extent’ does not connote [that] a person with interest in the provision should fish around for other enactments that contain such provisions in order to make them valid and enforceable. In essence what the legislature meant or intended is that for a treaty to be valid and enforceable, it must have the force of law behind it, albeit it shall be supported by a law enacted by the National Assembly, not bits and pieces of provisions found here and there in the other laws of the land, but not specifically so enacted to domesticate it, to make it a part of our law.” (see R.T.N.A v M.H.W.U.N (2008) LPELR-3196 at 53-54)

I do not imagine that the National Disability Act is a “bits and pieces” of the CRPD “found here and there in the other laws of the land” and not a body of provisions of law substantially and “specifically so enacted to domesticate it.” I am, therefore, of the opinion that the National Disability Act is in more sense the enforcement, domestication, or nationalisation of the CRPD than it is not. In other words, it is substantially the fulfillment of Nigeria’s obligations international treaties concerning persons with disabilities, mores so the CRPD (Onyekwere, J., the Guardian Online News, 1 May 2018). If this were so (I may be mistaken), only the federal legislature (government) has the authority to enforce the CRPD as our law currently stands, the same being an international treaty. And any such enforcement, in this instance the National Disability Act, is or should be binding throughout the federation.

Still, there could be the third leg of the argument. It may be argued that disability rights and welfare are not expressly stated both in the Exclusive Legislative List and the Concurrent Legislative List. Hence, it is a residual matter which only the state legislatures can legislate upon as the same would be outside the legislative competence or authority of the federal legislature (see AG Ogun State v Aberuagba (1985) 1 NWLR (Pt.3) 395; A-G Lagos State v A-G Federation (2003) LPELR – 620). Even if this were true, it would be grossly misleading.

This is because the Constitution appears to have given wider powers to the National assembly in matters relating to the implementation of international treaties, in this case, the CRPD which is implemented by the National Disability Act. Thus, Section 12(2) of the Constitution provides that “The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.” Provided that “A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly of the Federation.” (Section 12(3)).

From the generality of the foregoing, wherever this argument may preponderate, the fact remains that the oscillations and uncertainties emanating therefrom are of no good to disability jurisprudence in Nigeria. It is for this reason, to give more clarity as to the position of the Constitution in respect of the legal status of disability welfare and rights that there is now a great exigency to amend the Constitution to cure these uncertainties and further consolidate disability rights protection constitutionally.

Need for State Disability Laws to Complement the National Disability Act

It would be in the interest of justice and disability jurisprudence to, as much as possible, avoid any substantial differential or fragmentation of disability rights in Nigeria. Persons with disabilities should not be subjected to (substantially) different disability rights and disability law regimes throughout the federation. A situation where disability rights in one state, say Lagos, is at best higher (favourable) or at worse lower (unfavourable) than that in another state, say Sokoto, may not be in the best interest of persons with disabilities generally. The situation could even be direr where the rights are substantially lower, derogate from, or otherwise, inconsistent with the rights donated or granted under the National Disability Act.

Having said this, one cannot help but be mindful that Nigeria is a federal State, with each federating unit or state having its peculiar local circumstances in terms of demographic and governance challenges. And as such, and given the even greater need to ensure the protection of the welfare and human rights of persons with disabilities, while states are encouraged to adopt the National Disability Act, mutatis mutandis, states should be able to enact their own disability laws, independent of but complementary to the National Disability Act to reflect the realities of their own local circumstances.

This is in accordance with true federalism and international best practices. For instance, in America, a federal State like Nigeria, notwithstanding the Americans with Disabilities Act (ADA), which applies to the whole of the United States of America, various American states have their own unique disability laws. However, the state laws should complement or enhance the National Disability Act and not derogate from it. Otherwise, it is or should be void. And where a state disability law grants higher rights than that in the National Disability Act, persons with disabilities should reserve the right to elect to benefit from or proceed under both laws or one and not the other (Rosenbaum, S. et al, 2011).

The Way Forward – Amendment of the Constitution

It is only a step in the right direction that there is now an ongoing attempt by the House of Representatives to amend the Constitution to expressly provide that both the federal and state legislatures shall have concurrent legislative authority on any question of disability rights and welfare. This is the purport of the Constitution of the Federal Republic of Nigeria (Amendment) Bill, 2021 (HB 1375). Inter alia, the Bill, which has passed the first and second reading, seeks to amend section 16 (2) (d) of the Constitution by deleting the phrase “welfare of the disabled” and including a clear and separate item on disability matters on the  Concurrent Legislative List.

To this end, Section 7 of the Bill provides thus:

“7. Amendment of Part II: Concurrent Legislative List of the Second Schedule (Legislative Powers), is amended by including a new item 31 to read:

1. The National Assembly may make laws with respect to the welfare of persons with disabilities and disability matters.
2. Nothing in paragraph 31 hereof shall preclude a House of Assembly from making laws with respect to the welfare of persons with disabilities and disability matters provided it shall not be inconsistent with any law made by the National Assembly.”

Also, to further consolidate the human rights of persons with disabilities generally, the Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2019 (HB 596), which has passed the first and second reading and is awaiting Committee report on the floor of the House of Representatives, seeks to make free, compulsory and basic education a fundamental right of all citizens, including persons with disabilities, under chapter IV of the Constitution.

Hence, Section 3 of the Bill provides thus;

“3. The Principal Act is amended by creating a new section 45 as follows:

SECTION 45: FREE, COMPULSORY, AND UNIVERSAL BASIC EDUCATION

• Every citizen of Nigeria is entitled to free, compulsory, and universal basic education, and every government in Nigeria shall provide free, compulsory, and universal basic education to every child from primary to junior secondary school.
• It shall be the duty of every parent to ensure that his child or ward attends and completes his primary and junior secondary education by endeavoring to send the child to primary and junior secondary schools.
• Every stakeholder in education shall ensure that every parent or person who has the care and custody of a child performs the duty imposed on him under section 45 of this Constitution.”

(Bill has passed the first and second reading and is awaiting committee report)

If passed into law, this would have the effect of making the right to education constitutionally enforceable as a fundamental human right as opposed to the extant position where it is not justiciable under Chapter II of the Constitution, being one of the fundamental objectives and directive principles of state policy (see Section 18 of the Constitution).

In conclusion, the human rights era in the disability rights movement in Nigeria should be consolidated and sustained. The National Disability Act should not be the ceiling, given that it still harbours some shortcomings and does not necessarily repeal or improve upon the provisions of other laws that may be inconsistent with it. Hence, further consequential legislative and/or policy actions are required to strengthen the human rights of persons with disabilities and continue the work towards equalising the socio-economic imbalance in the current unequal scramble for scarce resources between persons with disabilities and their counterparts without disabilities.

States should, therefore, hasten to adopt the National Disability Act, mutatis mutandis, or enact their own disability laws to complement the National Disability Act. Disability rights and welfare should not be an afterthought. The protection of the human rights of persons with disabilities should be one of the primary functions of government.

In the final analysis, the exigency to constitutionally safeguard the human rights and welfare of persons with disabilities cannot be overemphasised. The seeming uncertainty bedeviling disability jurisprudence is, by all means, hindering the adequate protection of the disability rights and welfare of persons with disabilities. More efforts should be made to speed up and ensure the actualisation of the constitutional amendments in this respect. The need to specifically make disability rights enforceable rights under the Constitution, giving them constitutional flavour, protection, configuration, or structuration can’t be accentuated enough.

Okpeh is a lawyer, writer, researcher, and disability rights advocate. Reach him at bizibrains@gmail.com.   This work was first published on the Lawpavilion blog.