BEING A PAPER PRESENTED AT THE SOUTH WEST TOWN HALL MEETING OF THE NATIONAL TECHNICAL WORKING GROUP OF THE NATIONAL COMMISSION FOR PERSONS WITH DISABILITIES ON ACCESS TO EMPLOYMENT FOR PERSONS WITH DISABILITIES IN NIGERIA – BY ADESINA ADEGBITE, FICMC.
TOPIC: Compliance and Enforcement of Sections 28 and 29 of the Discrimination Against Persons With Disabilities (Prohibition) Act 2018. A Mandatory Requirement of Law.
1.0 PREAMBLE
Persons living with disabilities are no doubt among the most vulnerable in the society. Owing to the perceived systemic discrimination against these group of people and the sustained agitation for a legislation to protect the rights of persons living with disabilities, the National Assembly has finally stepped in by passing the Discrimination Against Persons With Disabilities (Prohibition) Act 2018, passed into law in January, 2019. This Law is aimed at ensuring adequate protection for persons with disabilities; it guarantees their rights to a normal and decent living and criminalises act of discrimination against persons with disabilities.
I have been asked to speak on Compliance and Enforcement of Sections 28 and 29 of the Discrimination against Persons with Disabilities (Prohibition) Act 2018. It therefore necessarily means that I must espouse these very important provisions which provide for Right to Work and Employment opportunities for persons living with disabilities vis-a-vis the mandatory compliance and enforcement of these legal rights.
2.0 PROVISIONS OF SECTIONS 28 AND 29 OF THE ACT
Had this event been strictly a gathering of lawyers, I would have taken it for granted that we all know the provisions of the law as contained in Sections 28 and 29 respectively of the Disabilities Act 2018. However, in view of the public sensitization nature of this event and the importance of the need for clear understanding of the provisions of Section 28 and 29 by all concerned and the stakeholders, it is imperative that I should bring the contents of this very unique legislation, particularly as it relates to the topic under discussion, to the understanding of all of us. The relevant sections are as produced hereinbelow:
2.1. Section 28:
- A person with disability has the right to work on an equal right basis with others and this includes the right to opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open.
- A person who contravenes subsection (1), commits an offence and is liable on conviction to nominal damages of a minimum of N250, 000 payable to the affected person with disability.
- Where a Company contravenes subsection (1) –
- The Company commits an offence and is liable to nominal damages of a minimum of N500, 000 payable to the affected person with disability, and
- Any principal officer of the Company involved in the violation is liable to N50, 000 damages payable to the affected person with disability.
2.2. Section 29:
All employers of labour in in public organisations shall, as much as possible, have persons with disabilities constituting at least 5% of their employment.
2.3. The summary of both sections is that the Law guarantees a person with disability with the right to work and earn a living in a labour market/work environment free from hindrance(s) to employment. Then, persons and companies who breach this provision are liable on conviction to nominal damages of a minimum of N250, 000 payable to the affected person (when an individual commits the offence) or N500, 000 (when a company commits the offence). Principal officers of a company are also liable to pay N50, 000 damages to the affected person with disability. Also, employers of labour in public institutions shall have at least 5% of persons with disabilities in their employment.
3.0. WAYS OF ENSURING COMPLIANCE WITH THE PROVISIONS OF SECTIONS 28 AND 29 OF THE ACT.
- Removal of stringent conditions of recruitment/employment that will make it impracticable for persons living with disability to apply or that includes a requirement that discriminates against person with disability.
- Avoidance and eradication of negative and limiting assumptions from employers about persons living with disability.
- Adopting a policy that will mandate the inclusion of a statement to the effect that the job opening is opened to ‘all persons including persons living with disability’ in all vacancy or recruitment advertisement.
- Low performance/capacity expectations from persons living with disabilities by most employers.
- Non-availability of disabilities friendly infrastructural facilities in most work places. Such facilities may include screen-reading technology for people with learning disabilities such as dyslexia or providing ramps/elevators for those in wheelchairs.
4.0. FACTORS MILITATING AGAINST EMPLOYMENT OF PERSONS LIVING WITH DISABILITY
- EDUCATION
Lack of adequate tertiary education amongst persons living with disability. Several surveys have shown that majority of persons living with disability have limited education or none at all. It is thus clear that lack of education or inadequate amongst persons living with disability is a challenge that must be holistically addressed as this is a factor responsible for the limited capacity amongst this vulnerable group. Invariably, access to adequate formal education by persons with disabilities is the foundation to having a workforce that includes persons with disabilities. It is worthy of note that some persons with disabilities have strong desire to proceed to the University or other tertiary institutions, but are financially handicapped. The hereunder are consider to be an immediate remedial approach to address the Educational Challenge:
- Free Education: It is my most humble and well considered suggestion that all persons living with major disability should be provided with a tuition free tertiary education in addition to free Primary and Secondary education.
- A person living with disability should have equal right to participate in trainings and workshops, attend seminars or programs open to every other person.
- There should not be discrimination as to admission policy where a person living with disability is involved
- The management of all Universities and Higher Institutions should ensure the availability of adequate infrastructure and facilities necessary for a smooth learning process, including shelter, mobility, hearing aids vision aid tools/equipment e.t.c, for the use of persons living with disability.
- Joint Admissions and Matriculation Board should set up special centres for all persons with disability who are writing JAMB exams and create a specialized scoring scheme that accommodates the special status of such candidates with disability.
- SPECIALIZATION
There is need for the adoption of a deliberate policy that will ensure that persons with disabilities who had secured basic education are exposed to the opportunities of specializations in their various field of endeavour. Persons with disabilities should be encouraged with special incentives to develop their capacities and achieve excellence in their chosen professions. Where this becomes a realistic policy, then more persons with disability will not only become employable but will become experts in their chosen discipline.
- INFRASTRUCTURAL FACILITIES
That there is a general infrastructure deficiency in Nigeria cannot be overstated. The lack of standard and adequate infrastructural facilities necessary to aid the vulnerable persons living with disabilities and help them live a less stressful life has been one of the factors militating against the welfare and wellbeing of persons living with disabilities in Nigeria. The absence of these infrastructures that would have otherwise lessen the inconveniences a person with disability will suffer in a work place and in the society has contributed greatly to the abject statistics of persons with disability who are gainfully employed. Some of these infrastructures and facilities that must be provided and improved upon as the case may be are as follows:
- Transport System – The general public transportation system in Nigeria is woeful and a misnomer. An able body person will even go through harrowing experience when making use of a public transport (e.g commercial buses) in Nigeria, talk less of a person with disability. Most motor parks in Nigeria are practically inaccessible to a person with disability, especially someone with mobility challenge. It is rather unfortunate and most pathetic that even most of the newly commissioned train stations in Nigeria have no functional elevators. Most of the stations I have personally visited where elevators are provided, they were never functional. I hope the authorities will quickly do something about this as I wonder how someone on wheelchair can make use of the train stations without suffering tremendous inconveniences.
- Non-Conformity Public Buildings – Most public buildings and workplace in Nigeria are not in compliance with standard requirements of the Disabilities Act, to allow for easy access by person with disability, especially those with mobility challenge and vision impairment.
- Poor Town Planning – Most roads in Nigeria are badly constructed and leave no allowance for walk ways/Lay back, for easy use of persons with disability.
- PHYSICAL/MENTAL DEVELOPMENT
- Access To Medical Care – The Government in addition to making Education accessible and affordable to persons with disability must also ensure that a person with disability have access to good medical care. No person living with disability should be denied of good health care on the account of his inability to afford hospital bill. It will be ludicrous for anyone to expect an employer to employ a person living with disability where such person has health challenges in addition to his physical disability. A person with disability must therefore be medically sound to be able to attract employment.
- Sporting Activities – Government and corporate bodies should invest heavily in developing sporting facilities across the country with special considerations for persons with disabilities. Apart from engaging in sport for leisure, there a lot of person with disability that can earn a living through sports. Provision of an enabling environment through standard stadia and sport halls will certainly engineer the development of interest in sports by persons with disabilities and this will consequently reduce their dependent of others to survive.
- Recreation facilities – Every human being needs to relax and exercise his or her body to aid the development of one’s mental alertness and physical fitness. Therefore,
5.0. EFFICACY OF SECTION 28 & 29 VIS-À-VIS THE PUNISHMENT/PENALTIES UNDER THE LAW
The existence of law prohibiting any act or action is to ensure sanction is imposed on any person, group of persons or body that violates the law. This is the reason the law usually prescribe punishment, penalty or fine for the commission of an offence or infraction of the law. The Penalties/fines provided in Section 28 (2) and (3) a & b i.e. is a fine of N250, 000 for individual employer; N500, 000 for Company, and N50, 000 fine for principal officer of a company committing the infraction respectively, is more of an inducement for violation of the law or to commit an infraction of the law than a punishment. The minimum payable fines are too meagre to serve as adequate punishment and deterrent to persons who have tendency to disobey the law. It is important that I cite an example of similar laws in the United States, The Discrimination Against Persons With Disabilities (Prohibition) Act 2018 is fashioned after the American With Disabilities Act (ADA), 1990, which was enacted to protect individuals with disabilities from discrimination. It was as a result of ADA that requirements like employment of persons with disability by any company with more than 15 employees, disabled parking reservation, service counter height requirements, wheelchair ramp mandates in building codes among others became mandatory. Our own 2018 Act also have similar provisions, however, while the fines prescribed by ADA are truly punitive those provided by the Nigerian legislation as could be seen in the provisions of Section 28 (2) & (3) quoted above are more of inducement to violate the law than deterrent. While a business or organization can be fined as much as $75, 000 (approximately N45 million), Nigerian law only prescribe a ridiculous fine of N500, 000 (albeit minimum) against a company that violates the right to employment of a person with disability. While the Act is a step forward, it is my considered view that the prescribed penalties cannot deter violators of law
CONCLUSION/RECOMMENDATION
As could be seen from the foregoing, Disabilities Act 2018 is a legislation that was long overdue and therefore a most desirable piece of legislation. However, the efficacy of the law vis-à-vis provisions of Sections 28 and 29 of the Act is nil. The fines prescribed by the law in Section. 28 (2) & (3) is ridiculous and should be reviewed upward immediately. In my view, a minimum of N1, 000, 000 for an individual violator, N5, 000, 000 for a Small Company and at least N50, 000, 000 for a Big Company should be adopted as fines respectively.
I find the requirement of 5% in Section 9 of the Act grossly inadequate. It is my suggestion that it should be increased to at least 10%.
In addition to fines, any company (big or small) found guilty of discriminating against persons living with disability by failing to give them employment that they are otherwise qualified for should be blacklisted. This means such company will not enjoy any form of government patronage or special concession, if any.
Finally, while it is desirable to enforce compliance of the law, it is however more imperative that the law be reviewed to strengthen its potency and guarantee the compliance and or observance of Section 28 (2) & (3) Section Section 29 by Employers.
Thank you for listening.
ADESINA ADEGBITE, FICMC.
Managing Partner, Adereti Adegbite & Co
Past National Welfare Secretary, NBA.
