by Daniel Kip, Esq.
Without having to burden us with the grammatical intricacies embedded in the meaning of Discrimination offered by the Discrimination Against Persons With Disabilities (Prohibition) Act, (DAPD Act), 2018, Disability discrimination within the scope of this discourse is said to occur when a qualified individual who is an employee or applicant is treated unfavorably because he or she has a disability.
Though the supreme law of the land, being the 1999 Nigerian Constitution (as amended), had enshrined certain rights under Chapter IV, one of which is the right not to be discriminated against on the basis of sex, religion, place of origin, creed, etc., or be subjected to deprivation by reason of the circumstances of birth, there isn’t any constitutional provision clearly protecting the rights of persons with disabilities from discrimination. See Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Before the advent of the DAPD Act, 2018, there was in existence the Convention on the Rights of Persons with Disabilities (CRPD) which Nigeria was made signatory to on 30th March, 2007, and was ratified on 24th Sep 2010. Article 27 of the said Convention requires that State parties recognize the right of persons with disabilities to work on an equal basis with others, including their right to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible. The foregoing provision accords with section 28 (1) of the Discrimination Against Persons With Disabilities (Prohibition) Act, 2018.
It has been argued and I do agree that all human rights are interrelated, interdependent and indivisible. Undoubtedly, violations of the right to work can lead to violations of the enjoyment of other human rights by persons with disabilities. For example, a person with a disability who is unable to work and earn a fair wage may be unable to attain an adequate standard of living. Similarly, violations of other human rights, such as the right to education, can also impact on the ability of persons with disabilities to realize their right to work and employment. In India, when you deny a person the means of his livelihood, you deny him his right to life. It’s about time we expanded the interpretation & scope of the right to life.
SCOPE & IMPERATIVENESS OF SECTIONS 28 & 29 0F THE DAPD ACT, 2018
Firstly, Section 1 (1) of the DAPD Act, 2018 provides that a “A person with disability shall not be discriminated against on the ground of his disability by any person or institution in any manner or circumstance”. The incepting Section of the Act sets the tone and generalizes the applicability of the Act to circumstances not specifically captured by the Act.
Part VI of the DAPD Act, 2018 deals with Opportunity for employment and participation in politics and public life. There are three sections under this part but this paper is cocooned to Sections 28 & 29 of the Act. For ease of reference, may I reproduce the said Sections:
- A person with disability has the right to work on an equal 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 a 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.
29. All employers of labour in public organisations shall, as much as possible, have persons with disabilities constituting at least 5% of their employment.”
I will attempt to dissect the above provisions of the law. Section 28(1) of the Act re-echoes Article 27 of the CRPD. The Section emphasizes the right of a person with disability to be accorded a just and favourable condition of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and redress of grievances within a work space.
It further foregrounds the right of a person with disability to exercise his trade and labour union rights, and the need for reasonable accommodation and working aid to be provided to persons with disabilities in the work place, while promoting employment opportunities and career growth for them.
Therefore, any act or omission by ‘a person’ that’s in violation of Section 28 (1) is tantamount to an offence under Section 28 (2), and upon conviction, the convict is liable to pay the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) as nominal damages to the affected person with disability. Sub-section 3 goes further to increase the quantum of damages where a company is involved, to N500,000.00 (Five Hundred Thousand Naira) in addition to N50,000.00 (Fifty Thousand Naira) where a principal member of the company perpetrated the act for the company. Hence, it is safe to say a violation of Section 28 of the DAPD Act, 2018, can be ventilated under our criminal jurisprudence.
It is worth stating that the use of the word ‘person’ in Section 28 (2) of the DAPD Act, 2018, isn’t limited to natural persons. The Interpretation section in the Act defines ‘person’ to include natural, artificial, juristic or judicial persons, companies, enterprises, firms, organisations, association, government departments, ministries, parastatals. This, indeed, is a quite expansive interpretation and thus Section 28 (1) must be complied to by all and sundry.
“29. All employers of labour in public organisations shall, as much as possible, have persons with disabilities constituting at least 5% of their employment.”
Section 29 of the DAPD Act, 2018, is deliberate and targeted at ensuring persons with disabilities forms a reasonable amount of the workforce in Nigeria, and so making it mandatory for all employers of labour to comply.
The Interpretation section defines ‘employer of labour’ to mean the interpretation accorded an employer under the Employee’s Compensation Act, No. 13, 2010. The said Employee’s Compensation Act, Cap. E7A, LFN, 2010, defines an employer to include “any individual, body corporate, Federal, State, Local Government or any of the government agencies or any of the government agencies who has entered into a contract of employment to employ any other person as an employee or apprentice.”
Despite the meaning ascribed to the phrase ‘employer of labour’, there is some ambiguity as to whether “All employers of labour in public organisations“ include employers of Labour in the private sector or it is just limited to employers of labour in government, government agencies, parastatals & Ministries. This situation is occasioned by the qualification of ‘employer of labour’ with ‘in public organisations’. May I attempt to demystify that ambiguity by stating my opinion and the basis for my conclusion.
I opine that Section 29 of the DAPD Act, 2018, isn’t restricted to employers of labour in government, government agencies, parastatals & Ministries. The Section contemplates employers of Labour in the private sector. The meaning of an employer of labour under the Employee’s Compensation Act includes individuals and body corporate. While the individuals as used there means natural persons, a body corporate is a legal entity, other than a body politic or a natural person. It includes a statutory corporation, a company and an incorporated association. The foregoing supports the non-restrictive applicability of that Section.
My conclusion is that the expression ”All employers of labour in public organisations” in section 29 extends to private companies and establishments is also hinged on the non-restrictive interpretation given to the phrase ‘public building” under the DAPD Act, even with the use of the word ‘public’ in qualifying the word ‘building’. The Act defines ‘public building” as “a building owned or used by government or government agency or a building available for use of members of the public”. So permit me to also opine that once a private company or establishment opens up its employment doors to the public for applications, such a company or establishment is caught by Section 29 and there must be compliance.
On the purport of the use of the word “shall’ in the in any legislation, in KALLAMU V. GURIN (2005) ALL FWLR (PT. 241) 325 @ 344, Paras. F-H, it was held as follows:
“It is no longer in doubt that the word ‘shall’ when used in a statute or rule of court makes it mandatory that the rule must be observed. In other words, generally, the term ‘shall’ is a word of command and denotes obligation and thus gives no room to discretion. It imposes duty.”
On damages accruable to a successful person with disability under Sections 28 and 29 of the Act, Section 55 (1) lightens the burden of proof to only proving the violation of the Section, and nothing more, to be entitled to the damages. Section 55 (2) also empowers the Court of law to grant special and general damages in addition to the normal damages provided for in the Act.
Unlike some of our African counterparts, the right to work is not unequivocally protected and guaranteed in constitutional provisions in Nigeria. However, the birthing of the Discrimination Against Persons With Disabilities (Prohibition) Act, (DAPD Act), 2018, presents massive hope to persons with disability.
Employment is central to the ability of persons with disabilities to maintain a decent standard of living for themselves and for their families, and is an important factor influencing their opportunities to participate fully in society. Work is a defining feature of human existence and in many societies the ability to work is viewed as one of the most important ways in which people can make their individual contributions to their communities.
The provisions of Section 28 & 29 of the DAPD Act, 2018, are mandatory and strict compliance must be demanded of us all. All critical stakeholders must resolve and take affirmative action to give life to the letters of the Act. While the justice sector has a major role to play by way of judicial activism, violations of this provisions must be ventilated and advocated in the courts of law. This will not only engender compliance by all, but will indemnify aggrieved persons with disability and serve as judicial precedence going forward.
DANIEL K. KIP
Daniel Kip is a Legal Practitioner & Notary Public. He is a Rights Activist.