Discrimination against Persons Living With Disabilities (prohibition) act, 2019: not yet Uhuru for intellectual disability community in Nigeria

As a parent of a child with special needs who by the incidence of her conception will live with some form of intellectual disability as well as an advocate for the disability community in Nigeria, I wonder what fate awaits my child in her life’s journey, considering the legal and policy gaps.

Unfortunately, existing laws and policies do not adequately cater for the needs of persons with intellectual disability

According to the World Health Organization’s 2011 World Disability Report, about 15 percent of Nigeria’s Population or at least 25 Million people have some disability. Meanwhile, Nigeria ratified the United Nations Convention on the rights of people with disability in 2007 and its optional protocol in 2010.

Following intense lobbying by many rights and advocacy groups, Nigeria passed the Disability (Prohibition) Bill in 2009. The Bill was however refused assent by the then President – Dr. Goodluck Ebele Jonathan.

The Senate joint committee passed the bill for the new law in November, 2016 which was signed into Law by President Muhammadu Buhari on 17^th of January, 2019.

In fact, the Buhari administration had widely been hailed by both local and international advocacy and rights groups as a great champion of the rights of persons living with disability.

One would have thought that with the signing into law of this Bill, the stage is set for a better provision and protection of the needs, rights and general welfare of those living with disability in Nigeria. However, till date, close to two years after the promulgation of the Law, implementation is sadly, yet to take effect.

The principal objective of the Discrimination Against Persons Living with Disabilities (Prohibition) Act, 2019 is to achieve full integration of persons with disabilities into society and to champion the causes for their socio-economic rights through a National Commission for Persons with Disabilities. One of the outstanding provisions in the Law is the recognition that the Disability community in Nigeria ought to have a full commission that should be responsible for, and oversee the adequate representation of and projection of the needs of persons living with Disability in the government.

Other Rights guaranteed under the Act are the right to basic special/specialized education, free medical and health services (in public health institutions), right to employment (in government and private sector alike) and to earn equal pay for such work, right to sue when discriminated upon on the basis of disability etc.

As much as these provisions are commendable, a wholistic view of the language and intention of the law in the Act shows that the plight of persons that falls within the intellectual disability category were not adequately and appropriately covered despite the fact that persons with intellectual disability account for quite a large number of the population of the general disability community in Nigeria.

Although Section 57 of the Act defines disability as:

‘Includes long term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder full and effective participation in society on equal basis with others….”

And persons with Disability as:

‘a. A person who has received preliminary or permanent certificate of disability to have condition which is expected to continue permanently or for a considerable length of time which can reasonably be expected to limit the person’s functional ability substantially, but not limited to seeing, hearing, thinking, ambulating, climbing, descending, lifting, grapping, rising, and includes and related functions or any limitation due to weakness or significantly decreased endurance so that he cannot perform his everyday routine, living and working without significantly increased hardship and vulnerability to everyday obstacles and hazards;

b. a person with long term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full and effective participation in society on equal basis with others…’

Some part of the Law providing for or regulating specific issue will make one conclude that much thought or consideration were not given to the plight of persons with intellectual disability. A few of these parts like provisions relating to right to education and the general use of language in the Act will be examined.

Section 21 of the Act generally made provision for the “unfettered” right to education of persons with disability but sub section 2 of section 21 and section 23 betrayed the intended category of children with disability contemplated in the Law for the education of children with disability thus;

‘Government shall ensure that the education of persons with disabilities particularly children who are blind, deaf, or with multiple disabilities is delivered in the most appropriate language and modes and means of communication for the individual and in environment which maximizes academic and social development’

Most children living with intellectual disability like Down Syndrome do not have physical disability per se. It is therefore sad that as important and mandatory as the right to education is, provision for the right under the Act does not contemplate and provide for the availability of special teaching tools like assistive technology device, cognitive building tools, attention building tools etc. needed to be able to effectively teach, aid and achieve maximum appropriate learning experience for persons with intellectual disability.

The use of language and descriptions in the Act is another observable anomaly that demonstrates the insensitiveness of the makers of the law to the specific cases of persons living with intellectual disability. The language of description raises concern as to whether the Law sought to also cover persons within the intellectual disability category. In Sections 24 (2) and 25 (1) of the Law, the draftsmen consistently used the word “Mental disability” to describe those with intellectual disability. This is most repulsive as having mental health challenge or mental sickness is quite different from being born with intellectual disability.

It has been recognized medically that intellectual disability does not in any way connote a state of mental illness but only implies that the intelligence quotient (IQ) may not be as high as that of a person without such disability. Children born with Down Syndrome for instance, has been shown to have from Mild to Moderate IQ. They can reason very well and exhibit an intelligent coordination of their daily activities if properly groomed.

On the positive, the Law is targeted towards giving voice to the general disability community in Nigeria. Thus, the Intellectual disability community should strive to take all possible advantage of same.

At the Down Syndrome Foundation of Nigeria, the next level agenda is taking a giant step towards training and re-training our young adults and self-advocates to further economic empowerment and total/semi-independent living, we can take advantage of some of the provisions like in Section 38 where the National Commission for Disabilities established under Section 31 of the Law lists some of the functions of the Commission as;

‘38(d) To make available not less than 5% of the work force to qualified persons with disability,

(k) Liaising with the public and private sectors as well as other bodies to ensure that the peculiar interest of persons with disability are taken into consideration in every government policy, programme and activities’

This is good news for young adults who have been certified as qualified in various vocations. I don’t know how many people are seeing the possibilities and hope that this development brings. I certainly know that with appropriate implementation and management of the affairs of the Commission, persons with disabilities have a cause to look towards the future with hope and optimism.

Ijeoma Fynecontry is the legal resource person with the Down Syndrome Foundation of Nigeria.