Los cuatro pilares de la educación para el siglo XXI

The word disability is defined as physical or mental condition that limits a person‟s movements, senses, or activities. The Black Laws Dictionary defines disability as an objectively measurable condition of impairment, physical or mental.³³⁵ Curson defined disabled person as a person who is blind, deaf or dumb or who is substantially and permanently handicapped by illness, injury or congenital deformity or any other disability for the time being.³³⁶ A disabled person was also described as a person who has mental or physical impairment.³³⁷

The United Nations Convention on the Rights of Person with Disabilities in its Preamble, states that „Disability is an evolving concept, and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder full and effective participation in society on an equal basis with others. It goes further to state that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society or an equal basis with others.³³⁸

According to World Health Organisation (WHO), disability is any restriction or lack of ability to perform an activity in the manner or within the range considered normal for human being due to impairment. It provided further that the disabled include persons with physical or other dysfunction, which may be acquired, congenital, even hereditary, consequentially affecting their full participation in the society, and the performance of social

335B A Garner,op cit, p528.

336 L B Curson, A Dictionary of Law (2^nd edn, England: Macdonald & Evans, 1983) p112.

337 B A Garner, op cit, p1257.

338 United Nations Convention on the Rights of Persons with Disabilities, Article 1.

133 roles. In this work therefore, a disabled child is a person under the age of eighteen having a physical or mental disability. People with disability are usually very vulnerable, due to their condition, and it cuts across every age, class or gender. According to Doma-Kutigi, disability exists throughout the world without respect for national, ethnic or cultural boundaries. The systematic exclusion and marginalization of people with disabilities from equal participation in all the major segments of society is a well-documented global phenomenon. In all societies, there has been a clear historical tendency to perceive people with disability in negative light as people that are basically incomplete and imperfect. They often face significant levels of discrimination and stigma in their everyday lives. As a result, many are not visible in the society, and hardly participate in community and family activities.³³⁹

Disabled people are often subjected to social, cultural and economic barriers which impede their access to health care, education, vocational training and employment. Thus Awah stated that the history of disabled people has been a miserable one. He further argued that the disabled has often been despised, discriminated against and more often than not maltreated, which stemmed from all sorts of beliefs regarding them as undesirable and evil.

He however noted that as we enter into realm of human rights these conceptions are fading and there is now a conscious attempt by governments and institutions globally to reverse the trend and protect the lives and lot of the disabled. Also the disabled are also struggling to break out of their limitation and exclusion and are seeking access to education, health care, participation in economic, social and political life. He concluded that the law remains the veritable instrument for the reversal of the limitations on the part of the disabled.³⁴⁰

339 H Doma-Kutigi, „ Perceptions as an Obstacle to the Protection of the Rights of Persons with Disability in Nigeria‟ vol. 19,No. 1. (2016) 160.

340 A Awah, „Legislating for the Disabled‟ in E Azinge, and C Ani (eds), The Rights of Persons with Disabilities,( Lagos: Nigerian Institute of Advanced Legal Studies ,2011).p 233.

134 One of the most vulnerable groups among persons with disabilities is children. This is because, they suffer double jeopardy. They are vulnerable as children and more vulnerable as disabled persons. Disabled children are more vulnerable to wars, child labour as beggars, malnutrition, physical and psychological ill-treatment, traffic in children‟s organ, and as many as one and fifty (150) million children throughout the world are disabled.³⁴¹ Consequently, Lansdown described lives of disabled children as follows:

They cease to be valued as equal to other children. They are widely disregarded as both capable of, and needing, love, affection, humour, friendship, cultural and artistic expression and intellectual stimulus.

They are segregated, marginalised and isolated. It means that they are subjected to physical and sexual violence with relative impunity. It means that they are defined by what they lack rather than what they have. It means that they their talents, beauty, vigour and love are ignored. The cumulative impact is to deny disabled children respect for the dignity, their individuality, even their rights to life itself. The process dehumanises children. But it also dehumanises society. No society can claim to civilisation, humanity and justice when it continues to subject a significant minority of its people to such abuse and neglect³⁴². The causes of the rejection of disabled people lie deep in the social, economic, cultural and psychological roots of all cultures, dislike of or hostility to difference, belief that disability derive from curses or

341Compilation of International Norms and Standards relating to disability, www.un.org/esa/socdev/enable/discom001.htm in E Azinge, C Ani (eds), The Rights of Persons with Disabilities, (Lagos: Nigerian Institute of Advanced Legal Studies ,2011) p57.

342G Lansdown, „It is our World Too, A Report on the Lives of Disabled Children, Disability Awareness in Action‟, 2001 in E N Okereke, „Protecting and Promoting the Rights of Disabled Children‟, in E Azinge, C Ani (eds), The Rights of Persons with Disabilities, op cit p58.

135 punishment, guilt, fear of contamination, reluctance to accept the

responsibility for caring. Discrimination against disabled children has existed in every community throughout history.³⁴³

Naturally disabled people depend on other persons for help and the case is worse with children, who ordinarily are dependent even without any physical disability. Many disabled children‟s rights are violated because of their incapacitations. At the international level, disabled children were given specific recognition. The United Nations Convention on the Rights of the Child specifically recognised the rights of disabled children as follows:³⁴⁴ States parties should recognise that a mentally or physically disabled child should enjoy a full and decent life in conditions which ensure dignity, promote self-reliance and facilitate the child‟s active participation in the community. State parties should recognise the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application for which application is made and which is appropriate to the child‟s condition, and to the circumstances of the parents or others caring for the child. States are to ensure that the disabled child has effective access to and receives education, training, healthcare services, rehabilitation services, and recreation opportunities in a manner conducive to the child‟ s achievement of the fullest possible social integration and individual development, including his or her cultural and spiritual development. It also provides that State parties shall promote in the spirit of international co-operation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the

343Ibid.

344 UNCRC, Article 23(1-4).

136 aim of enabling States parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.

The Convention was widely accepted and ratified by many nations, Nigeria, inclusive.

It is an indication that there is an international recognition that all children, including disabled children are subjects of rights and that government have obvious and complete obligations to protect, promote and fulfil those rights. Nigeria has also domesticated the Convention as the Child Rights Act, 2003, however without the relevant sections on disabled children.

Another basic international human rights instrument for the protection of the rights of persons with disabilities is the United Nations Convention on the Rights of Persons with Disabilities.³⁴⁵ It has a comprehensive provision for the protection of the rights of persons with disabilities. Article 1 provides that the purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disability, and to promote respect for their inherent dignity. The Convention restated the general principle of universality, indivisibility, interdependence, and interrelatedness of human rights and provisions of specific rights such as; right to accessibility including information technology, the right to live independently, and be included in the community, right to personal mobility, right to rehabilitation , right to participation in political and public life, and cultural life, right to recreation and sports, right to liberty, right to freedom of exploitation, violence and abuse, right to freedom from torture or cruel, inhuman or degrading treatment or punishment, right to equal recognition before the law etc.³⁴⁶ The Convention specifically mandates States Parties to take all necessary measures to ensure full enjoyment of all human rights and fundamental freedoms by disabled children on an equal

345 United Nations Convention on the Rights of Persons with Disabilities, adopted by the UN General Assembly Resolution A/RES/611, 2006, entered into force in 2008.

346Ibid,Articles, 12, 14, 15, 16, 19, 20, 26, 29, 30.

137 basis with other children. In all actions concerning children with disabilities, the best interest of the child shall be the primary consideration. It further provides that State parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right.³⁴⁷ It further provides for effective access to justice for persons with disabilities on an equal basis with others through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including witnesses in all legal proceedings. Furthermore, in order to ensure effective access to justice for persons with disabilities, it provides that State parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.³⁴⁸ The general obligation of State parties under the Convention as provided in Article 4 is an undertaking to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, State parties are required to adopt all appropriate legislative, administrative and other measure for the implementation of the rights recognised in the Convention; take all appropriate measure including legislation measures to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disability; take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the Convention; take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise; undertake or promote research

347Ibid, Article 7.

348Ibid, Article 13.

138 and development of universally designed goods, services, equipment‟s and facilities which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, promote their availability and use, and to promote universal design in the development of standards and guidelines. Member States should also understand or promote research and development of and promote the availability and use of new technologies at an affordable cost; provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, as well as other forms of assistance, support services and facilities; and promote the training of professionals and staff working with persons with disabilities so as to better provide the assistance and services guaranteed.

The Convention provides that in the development and implementation of legislation and policies to implement the present Convention, and in other decision making processes concerning issues relating to persons with disabilities, State parties shall closely consult with and actively involve persons with disabilities through their representative organisations.

There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognised or existing in any State Party to the present Convention pursuant to law, Conventions, regulation or custom on the pretext that the present Convention does not recognise such rights or freedoms or that it recognises such rights or freedoms or that it recognises them to a lesser extent. State Parties are required to extend the provisions of the Convention to all parts of the State without any limitation or exceptions.³⁴⁹In other words, the obligation inuring under the Convention will not be discharged by the mere passage of a federal law that has no effect in some of the federating States. The Convention and its optional Protocol has been signed and ratified by Nigeria but has not been domesticated. It is submitted that these provisions will to a large extent give specific protection and dignity to

349Ibid, Article 4(2),(4) and (5).

139 children and other persons with disabilities in Nigeria if the needful is done. This is because;

the provisions of the Convention not only gives universal recognition to the dignity of persons with disabilities, it created a positive change in attitudes and approaches to persons with disabilities. Thus, there is a departure from the approach where persons with disabilities were considered objects of charity to where they are making decisions and claiming rights on their own behalf.

The United Nation Declaration on the Rights of the Disabled is another relevant instrument. This Declaration is based on principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child, and the Declaration on the Rights of Mentally Retarded Persons, as well as the standards already set for social progress in the Constitutions, Conventions, recommendations and resolutions of the International Labour Organisation, the United Nations Educational, Scientific and Cultural Organisation, the World Health Organisation, the United Nations Children‟s fund and other organisations concerned. The United Nation Declaration on the Rights of the Disabled calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of the rights of the disabled.

Thus the disabled are entitled to enjoy all the rights set out in the declaration without any exception whatsoever and without distinction or discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, state of wealth, birth or any other situation applying either to the disabled person himself or herself or to his or her family. The most important of these rights is the inherent right to life and dignity of human person to enjoy and live life to the fullest. They should be entitled to measures designed to enable them enjoy life and become as self-reliant as possible.

140 At the regional level, the African Charter on the Rights and Welfare of the Child also has a collection of articles for the protection of disabled children. For instance, Article 13³⁵⁰ provides for handicapped children as follows:

Every child who is mentally or physically disabled shall have the right to special measures of protection in keeping with his physical and moral needs and under conditions which ensure his dignity, promote his self-reliance and active participation in the community. State parties to the present Charter shall ensure, subject to available resources, to a disabled child and to those responsible for his care, of assistance for which application is made and which is appropriate to the child‟s condition and in particular shall ensure that the disabled child has effective access to training, preparation for employment and recreation opportunities in a manner conducive to the child achieving the fullest possible social integration, individual development and his cultural and moral development.

It further provides thus:

The State Parties to the present Charter shall use their available resources with a view to achieving progressively the full convenience of the mentally and physically disabled person to movement and access to public highway buildings and other places to which the disabled may legitimately want to have access to.

350 The African Charter on the Rights and Welfare of the Child,1990.

141 Despite the fact that Nigeria is signatory to this Charter, the provisions are not made available for disabled children in Nigeria. The Charter has not been domesticated, and the provisions were not reflected in the CRA.

The African Charter on Human and People‟s Rights provided in its Article 18(4) that the aged and the disabled shall also have the rights to special measures of protection in keeping with their physical or moral needs. This in the researcher‟s view can be interpreted to mean, access to services, education, healthcare, employment, public highways and facilities.

However, the aged and disabled in Nigeria do not have access to these special measure of protection for so many reasons, which include lack of commitment by government to provide basic amenities for citizens and negative social perceptions associated with disabled persons.

In the United States of America (USA)³⁵¹ the US Americans with Disability Act (ADA) 1990, is an Act that established a clear and comprehensive prohibition of discrimination on the basis of disability. The law defines disability as physical or mental impairments that substantially limit one or more major life activities of such individual.

Major life activity is defined as activities including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The law makes it illegal to discriminate against a qualified person with a disability in the private sector and in State and local governments, and to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer‟s business. The Act mandated for

351 Subsequently referred to as USA.

142 the elimination of discrimination. It was found that individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion; and the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practises, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.³⁵²

In the United Kingdom (UK)³⁵³ the extant law for the protection of the disabled is the Equality Act 2010. It defined a disabled as a person who have a physical or mental impairment that has a substantial and long term negative effect on his ability to do normal daily activities. It aims at protecting disabled people and preventing disability discrimination.

The Act provides legal rights to protect the disabled people in the area of employment;

education; access to goods; buying and renting land or property; and dealing with the police.

The Act also protects people from discrimination on the basis of association with the disabled people; for instance, a person who takes care of a disabled person, or the parents, guardian and siblings of a disabled person. The Act also prohibits a school or other education provider to treat disabled students unfavourably, and it includes direct discrimination, indirect discrimination, and discrimination arising from disability, harassment and victimisation. A person in police custody, undergoing interview or being questioned has rights depending on his or her particular impairments.

In Nigeria, besides the Constitution which guarantees the human rights of every citizen including disabled people, no law guarantees the specific rights of the disabled. Some of the fundamental human rights beneficial to disabled children include: section 42(1) which guarantees the right to freedom from discrimination in all its forms against any person on

352 USA ADA, 1990, s. 2 ( a) and( b).

353 Subsequently referred to as UK.