By Onyewuchi Ojinnaka (Senior Correspondent)
A physically challenged lawyer Mr. Daniel Onwe who filed a suit at the Federal High Court Lagos, seeking the enactment of a disability law in Nigeria by the nation’s lawmakers is invariably contesting the non enactment of a disability law in Nigeria.
The applicant had in 2014 filed a suit which he withdrew and later on February 9, 2017 re-filed the suit with similar reliefs.
Respondents to the suit in which the applicant alleged failure to enact a law protecting the rights of persons living with disabilities in the country are President of the Federal Republic of Nigeria and the National Assembly.
Among other reliefs sought, the applicant is also asking for broad interpretation of the constitutional rights to dignity of human person, freedom of expression, Association and freedom of movement, to accommodate the peculiarities of persons with disabilities.
The court has reserved judgment till March 15, after hearing arguments from the applicant as well as a preliminary objection to the suit.
In continuation of his submission while adopting his written address on the substantive suit, Onwe argued that it was incontrovertible that the absence of a legislation to provide for the peculiar needs of persons with disabilities amounts to a violation of their fundamental rights.
“It appears that the fundamental rights as enshrined in chapter IV of the 1999 Constitution may be generally applicable to all, as it presupposes that the playing field is level for all.
“However, for persons living with disabilities, the playing field is by no means level; the truth must be told, and the truth is that by reason of their disabilities, they are put at a disadvantaged position vis a vis other members of the society
“Yet, they are required to compete for the same limited opportunities in the society; For instance, lets look at a school that has its libraries, lecture and examination halls upstairs, without lift or any other access facility, which is typical in Nigeria”, he further argued.
He submitted that; “An ordinary student can go to such library, lecture and exam halls without stress, but to a student with disability confined to a wheelchair or wobbling on crutches, it is a totally different kettle of fish.
“The said example is equally relevant to a scenario where the Applicant, for example, a lawyer with disability would have to ascend flights of steep steps to do a matter in a courtroom upstairs, where there are no lifts or any accessible facility.
“The forgoing instances raises a number of human right issues. One, there is the issue of discrimination, as the person with disability is less advantaged than others, and this runs contrary to the spirit of section 42 of the 1999 Constitution which prohibits discrimination.
“Secondly, should the person with disability dare to ascend the flight of steps, it would be indeed a torturous experience for him, especially like in the case of the applicant who is a lawyer.
“Supposing the person is on a wheelchair, it become even worse, in that he would be bundled upstairs most likely at the full glare of his clients. What a degrading experience.
According to Onwe; “This offends Section 34 of the Constitution. Persons with disabilities are a class of vulnerable persons; their protection from human rights violation cannot be achieved by default, but by appropriate and specific legislation.
“This has been the practice in other countries across the globe and Nigeria cannot afford to be the odd one out,”
The applicant therefore, urged the court to grant the reliefs sought in the suit.
Responding, counsel to the respondent, Mr H. Shittabay argued on his preliminary objection and urgd the court to dismiss the suit for lack of jurisdiction.
He argued that the thrust of the applicant’s suit falls within the purview of chapter two of the 1999 constitution and not chapter four which borders on fundamental human rights.
Citing the provisions of Order 4 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, respondent’s counsel, argued that the applicant’s suit ought to have been commenced by an originating motion, instead of a motion on notice
While also adopting his written address, he contended that the error rendered the suit of the applicant incompetent and oust the jurisdiction of the court to hear same. He urged the court to decline jurisdiction to hear the suit.
After listening to the submissions of counsel, Justice Ayotunde Faji adjourned the case until March 15 for judgment.
It would recalled that the applicant’s suit was first assigned to Justice Mohammed Yunusa, and later to Justice Jude Dagat after the transfer of Yunusa from the Lagos division of the court.
Again, following the transfer of Dagat out of the Lagos division, the suit was re-assigned to Justice Mohammed Aikawa.
On February 2, 2017, Justice Aikawa struck out the suit after the applicant informed the court that he was withdrawing same.
The applicant’s withdrawal was sequel to a preliminary objection raised by the respondent, that the processes were not properly endorsed for service outside the jurisdiction of the court.
The applicant however, re-filed the suit on February 9, 2017, seeking similar declarative reliefs.
The suit numbered FHC/LA/CS/168/17 was then assigned to Justice Ayotunde Faji.
Onwe contends that the absence of a disability law, amounted to a violation of the rights of the physically challenged, who he estimates at over 23 million in the country.
He is therefore seeking an order, mandating the respondent to immediately enact the necessary laws to protect the rights of persons living with disabilities.