Tobi Aworinde

A former Publicity Secretary of the Nigerian Bar Association, Mr Kunle Edun, tells TOBI AWORINDE how he defeated the Vehicle Inspection Office up to the Court of Appeal in a suit challenging the agency’s demand for roadworthiness from private vehicle owners

You recently secured a court judgment against the Vehicle Inspection Office in respect of roadworthiness certificate. Can you tell us about it?

Sometime in 2014, I had cause to be driving along a major road in Ughelli (Delta State), where I wanted to inspect a piece of land, which a client of mine wanted to purchase. Along the road, I came across some kind of obstructions put on the road by some persons purporting to be Vehicle Inspection Officers. They stopped me and I identified myself. They demanded my vehicle’s roadworthiness certificate, and I told them, ‘Sorry, I don’t understand what you mean by that. As a matter of fact, I don’t have it, so should you clear the way for me to pass?’

They were stopping other vehicles for the same purpose, but I insisted that since what they were doing was wrong, I would not assist them to persevere in that error they were committing. So, I told them, ‘Sorry, I will not give you any of my documents; you don’t have any right to be on the road, asking for such documents from me.’ On that basis, they refused to allow me to pass through and that caused a scene. By then traffic had started to build and when they saw that the situation was becoming more chaotic, they had no other option but to allow me to pass through.

Was there any attempt by the officers to impound your vehicle?

When I insisted that ‘you guys don’t have the right to stop me on the road or ask me for my particulars,’ they delayed me for about eight to 10 minutes. But interestingly, when I started lecturing them about their duty under the law, some seemingly educated commuters were telling me, ‘Oga barrister, show them your documents nao. Find something for them nao.’ And I felt disappointed but I was not discouraged. I insisted that the right thing must be done. I know that whenever the VIOs demand such documents from private vehicle owners, they have a way of settling the matter. I wouldn’t know if money exchanges hands, but they have a way of settling it and that has emboldened them (VIOs) to continue in the act. So, that day, I said, ‘No, enough is enough.’ This country belongs to all of us. While we all shout that the government is failing, we too, as individuals, are failing society. So, I stood my ground and when they realised I wouldn’t budge, they allowed me to pass. But then I told them, ‘For daring to stop me and detain me for 10 minutes, I will take it up.’ I considered what they did a harassment and I didn’t like it.

The fact is that they have no right to even be on a public road purporting to be asking for roadworthiness certificates. As of the time of the renewal of my vehicle particulars, if they want to check whether the vehicle is actually roadworthy, that is where they should do that, rather than get on the roads to be harassing commuters, asking for documents.

How did they react to your threat to sue?

They thought I was joking. They said, ‘You can’t do anything.’ I discovered that it was a rampant practice by the VIOs in Delta State and nobody had bothered to take the matter up. At the time, I was the Vice Chairman of the NBA in Warri, and I was also the Chairman of the Human Rights Committee of the NBA in Warri. So, I had a duty to ensure that the right thing was done. That was what compelled my filing this action at the High Court, Ughelli. The Governor of Delta State was the first defendant; the second defendant was the Attorney General of the state; and the third defendant was the Vehicle Inspection Office under the Ughelli inspectorate.

They came to court and challenged the action. At the end of the day, the court delivered judgment in my favour and declared that VIOs – or whatever name they are called – have no business even being on the road, first and foremost. They have no business stopping vehicles to ask for any documents. The judge was particular that their work and duty should be done at their offices, not on the road. The judge said, ‘You don’t inspect vehicles on the road; you inspect vehicles at your workshop or office, and the best time to do that is during annual vehicle licence renewal.’ The judge also said that they had no authority to even stop any private vehicle, demanding any document whatsoever.

The law, on which they base their actions – the Road Traffic Law of Delta State, and the revisions made thereon – did not even give them that power. The power that the road traffic law of Delta State gave them was that they could ask for roadworthiness certificates in respect of commercial vehicles alone, that is, vehicles that carry goods. They can ask for hackney permits and other related documents. But private vehicles don’t carry goods; they don’t do commercial business. So, they (VIOs) don’t have any right to be asking them (private car owners) for documents like that, and they don’t have any right to stop them.

So, with regard to commercial and private vehicles, the court said they don’t have any right to stop any vehicle on the road. Now, with regard to possession of the roadworthiness certificate, the court said they don’t have any right to ask any private vehicle (user) for such a document.

The judge went further to make an order of injunction restraining them from being on the road, stopping vehicles on the road and causing obstructions. Of course, the court also awarded some damages against them.

Was the judgment appealed?

Yes, they filed an appeal and also filed a motion for stay of execution. Their appeal was pending at the Court of Appeal, Benin (Edo State). When the Court of Appeal in Asaba (Delta) was created, it was then transferred there. Sometime early this year, we were served an early notice to come and argue the appeal. I was there personally, because I took up the matter as public-interest litigation. It wasn’t about Kunle Edun; it is for the benefit of all Nigerians because we need to let these authorities know that the officers are there to serve us, and not the other way round, and they don’t have the right to abuse the power that the law has conferred on them. So, I took up the matter on behalf of members of the public. As a lawyer, I can drive. I have my licence and every other thing; I know they can’t stop me because I can handle myself. But how many Nigerians can actually stand up to fight for their rights? So, that was why I took up the matter. Good enough, the Court of Appeal recently affirmed the judgment of the High Court, Ughelli. It was a unanimous decision by the Court of Appeal and they dismissed the appeal filed by the Delta State Government.

Were you able to get the name tags of the officers before going to court?

I didn’t bother about getting their name tags. Initially, I wrote a pre-action notice, which, as usual, they didn’t respond to. I still had to go to court. But they came to court to give evidence and they revealed their identities. Essentially, the identities of those guys were revealed, so I didn’t really bother much about the name tags. I wasn’t really particular about the individual; I was particular about the Vehicle Inspection Unit of the Ministry of Transportation because it was a rampant thing being done in Warri, Ughelli, and Asaba. It was like a business. Even on Monday, a senior lawyer called me and referred somebody to me that the person’s vehicle was harassed and detained by VIOs. The person did not have a driving licence. I then asked, ‘Why didn’t you have a driving licence?’ But then I said, ‘That is not even the issue. VIOs have no business asking for a driving licence. They have no business stopping any private vehicle.’ The Court of Appeal had already settled that. I then told the person we would take the matter up and we will continue to ensure that the judgment of the Court of Appeal is obeyed and respected.

They imposed a fine of N35,000 and I said, “Even if it will take me personally paying that fine, I will do it, to make a further statement to them because all of us need to come together. It’s a collective responsibility.”

Like you highlighted, many Nigerians don’t have the means to pursue legal action like you did. What is your advice to those who find themselves in a situation like this?

We have about 125 branches of the Nigerian Bar Association. Each branch has a Human Rights Committee, and I know some branches also have Public Interest Litigation Committees. Reports can be made to each of the branches, particularly for Nigerians who do not really know their rights and are indigent. Those that are well-to-do can brief any lawyer to take up the case for them. If we have a better society, it will also help us in entrenching the rule of law. When the rule of law is upheld, I bet you, everybody will be happy that we are living in a sane society. So, the NBA is there; human rights activists are there to also help out.

Are you satisfied with the N200,000 compensation you got from the Court of Appeal?

I’m not particular about the compensation, really, because I just wanted to use the judicial process to make a statement that government institutions should adhere to the laws setting them up and try not to abuse the powers conferred on them. The high court awarded N100,000 and the Court of Appeal awarded N200,000. I’m not particular about it because even if the Delta State Government is going to pay me the money, is it not part of my tax? If they pay me, I would rather donate it to one charitable organisation to further help their cause. My wish is, let them do the right thing.

By IMRAN, Ridwan Anuoluwapo

Introduction

This article focuses on the analytical study of child custody. In the Muslim-dominated communities today, divorce has been a factor that brings the question of who will be entitled to the custody of a child and how? Whatever form of divorce occasions separation and dissolution of marriage, Islamic law entitles the wife to custody of any young children of the marriage: female children until they are married and male children until they reach puberty. In practice, however, wives are denied custody of their children by threat or actual use of force. Some women do not pursue their rights to custody for fear that their former husbands will not provide maintenance to support the children. Often, those fears are real. However, a few women do have recourse to courts where eventually they obtain custody and order for maintenance of the children. The practice of denial of custody following divorce is widespread. Many men seek to further antagonise their former wives and use denial of custody for that purpose.

The meaning of custody

In the Arabic language custody is termed as ‘Hidhanat’.Custody means physical or material possession of the children, whereas its Arabic equivalent Hidhanat literally means ‘training’ or ‘upbringing of the child’.

According to the principles of established Muslim jurisprudence,  custody (hidhanat) is a right of the child and not of either of the parents or any other person claiming through them. The basic consideration always is to provide to the child the most natural, most considerate, and most compassionate atmosphere to grow up as a better member of society. Islam keeps the institution of family in high esteem and tries to preserve it. The rights and duties of the spouses have been prescribed in a manner to keep an ideal balance. While it is the man’s job to earn livelihood and provide sustenance to the family, the wife must give birth to the children, bring them up, and groom them. She is not required to work for her family or earn a living.

However, the practice of custody of a child in our societies today has derailed from the laydown principles or procedures of  Islamic law. What the law enjoys is the interest of the child, to enable him/her to receive the proper upbringing to exonerate the societies from abnormalities. It’s obvious that most of the children outside there are not properly upbringing which lowers their upright as a result of divorce between the two parents, the father who fails to discharge his duty to the mother and the child, Classical Muslim Scholars agree that subsistence of the child is incumbent upon the father even when he is in mother’s custody. Under Islamic law, it is not the responsibility of the mother to provide sustenance and protection of progeny.

Child Custody in Quran, Sunnah, and Fiqh

An in-depth study of Islamic law reveals that there is no verse in Quran on custody of minors but the classical Muslim jurists have referred to the verse of fosterage  (Ayat al Radha’at) which says that the mother should breastfeed their infants for two complete years. Therefore through Iqtada al Nass, it is inferred that in the years of infancy the right of upbringing and fostering the child remains with the mother. 

In the light of the hadith literature available and the decisions of Prophet Mohammad (PBUH) on the cases brought before him on child custody, three principles have been laid down while deciding the custody of a child.

1- The mother possesses the priority right of child custody so long as she does not remarry.

2- In a situation where both parents profess different religions, custody of the child should go to that parent who follows the religion of Islam.

3- When the child has gone past the years of minority (7 years) he will be given an option to choose between both parents.

According to the principles of established Muslim Jurisprudence, the father is considered to be the child’s natural and legal guardian because upon him is the responsibility of nafaqa of his child.  Mothers are the custodians till a particular age after which the custody either reverts to the father of the child is given the option by the court to choose between both parents, though no such age limit is stated in the texts.

What Islamic law says

Islamic law categorically gives custody of minor children to the mother: girls until they marry and boys until they reach the age of puberty and discretion. This ruling is based on the case that was brought before Caliph Abubakar by a grandmother challenging the attempt of Umar to take his child away from her. Caliph Abubakar decided in her favour adding that, “The hugs and kisses of that old woman to the child are more important and valuable than whatever material wealth you can offer the child”. This provision of Islamic law, besides granting rights to the wife, has the additional benefit of placing a restraint on indiscriminate divorce. In effecting a divorce the husband has to consider the unpleasant prospect of losing custody of the children. Muslim Jurists unanimously agree that custody of young children is rightly in the hands of the mother and her

relatives. In the order of priority outlined in Sharia, the father is fifth in line of eligibility to custody. So far, from all the known cases, the courts have unhesitatingly given custody to the mothers.

The custody of a child, if the mother is disqualified;

In the case where a mother is disqualified because of some other reasons, the following women will take her position accordingly:

1- Mother, whether a Muslim or a Kitab is

2- Mother’s mother how high so ever

3- Maternal aunt

4- The mother maternal aunt

5- The father’s mother

In other words, where no relations are willing and able to look after the child, the mother who has became disqualified by marrying a stranger may be appointed by the court as the guardian of her minor child. Thus, such a mother was preferred to a paternal aunt, who has married and was not in a better financial position than the mother.

Conclusion

Custody is a legal mandate because the child might die or get hurt if left alone. Therefore, he should be protected from death. The rule of law is obligatory if there is only one custodian. Therefore, women are often granted custody as a result of being closer to the child. Furthermore, they should have the ability to do what is necessary. When there is a dispute among relatives, they always refer to a judge or a ruler. When we say that women have more rights to it, it is because they are closer and more proper to look after, care, protect while awake or asleep, feed, dress, clean, calm, play with, treat and do all necessary in education. There is no doubt that these are duties for women and no man can perform them with patience, ever. Even if a man ends up winning custody of a child – a father or any of his relatives – this custody has to be represented by a woman from the side of the man, which is one of the conditions for scholars to allow men custody. Furthermore, it is mandatory if the custodian is not willing to accept the child or if there is more than one custodian and the child chose a certain one. Therefore, the custodian and the one in custody have the right to custody. In this case, it is a choice for the custodian and not a mandate. That is to say, if the custodian refrains, he cannot be forced to it because it is not forced on him. This is when we have multiple custodians. If the custodian refrains, he will not be forced, because it is a right that he can go back and assume again as long as he is still fit. It is a right that is renewed throughout time. The child’s right is honored. For example, when he accepts nobody except his mother and when the father and the child have no money, the mother is forced into custody.

Imran Ridwan Anuoluwapo, is a graduate of English literature from Usman Dan Fodio University, Sokoto. He is currently a year three student of law at the University of Maiduguri. His area of interest is Islamic personal law, constitutional law, oil and gas, commercial law, international law, corporate practice, and criminal law. His candid for mentorship and training. He is reachable vide/WhatsApp 08131077061 and [email protected]

References

1- Imam Shaukani, Nayl al Autar, Syria:Dar al Fikr, vol.  7, p.142

2- Al Bahaiqi, Sunan al Kubra (Beirut:Dar al Kotob Al- Ilmiyah) vol.8, p. 8

3-  Al-Quran 2:233

Al Bahaiqi, Sunan al Kubra, Dakkan, Vol8, p.4

Al Bahaiqi, op. cit., vol 8, p.3 ; Sunan Abu Dawood       (Karachi: Karkhana e Tijarat) vol 1, p. 305 8

4-  Ibn Qaddama, Al Mughni, Egypt: 1367, vol. 7, p.      614-16 (Hanbali scholar, 541-573 AH)

Najm ud din Jafar, Shara’i al Islam, Tehran, vol. 2, p. 1-2

5- Hadith Book, by Imam Mohammad ibn Ali Shaukani

6- Ibn Qayyam (1292-1350CE / 691 AH- 751 AH) was a Sunni Islamic jurist and commentator of Quran. His scholarship was focused on Hadith and fiqh.

Ibn Qayyam, Zad al Ma’ad, translated by Syed Rais Ahmad Jaferi (Karachi: Nafeees Academy) Vol 4, p.289

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 [email protected].   This work was first published on the Lawpavilion blog.