Rights of Lawyers with Disabilities in Nigeria: How Long Must Charity Continue? -By Bizibrains Okpeh
The World Health Organisation (WHO) defines disability as the umbrella term for impairments, activity limitations, and participation restrictions, referring to the negative aspects of the interaction between an individual (with a health condition) and that individual’s contextual factors (environmental and personal factors). There is no gainsaying that the legal profession in Nigeria comprises over one hundred and twenty thousand (120,000) legal practitioners (https://nigerianbar.org.ng/about-us [accessed 13/6/2020]). Although no official statistics exits in this respect, the Nigerian legal profession has its fair share of lawyers with disabilities (LWDs). These lots, together with their counterparts, are under the leadership and welfare ship of the Nigerian Bar Association (NBA), which is an umbrella professional body of all lawyers in Nigeria, and the largest Bar in Africa. In order to cater to the rights and welfare of all lawyers, including lawyers with disabilities, the NBA created structures such as the offices of the welfare Secretary and the Welfare Committee.
However, a practical appraisal of these structures, including the NBA Constitution under which they are created, shows that since its inception, the NBA sees the rights and welfare of lawyers with disabilities largely from the spectrum of charity, as opposed to a socio-human rights need that must necessarily be attended to, and for which it has an obligation to provide. Worse still, the extant laws in Nigeria, including the recently enacted Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 (DAPDA), while providing for the rights of persons with disabilities (PWDs),which in itself is far-reaching and commendable, does not specifically make any provisions in respect of lawyers with disabilities as is the case under the UK’s Equality Act, 2010. This essay, therefore, advocates for a change from a charity-based legal profession to a right-based profession that would ensure an inclusive structure in the NBA in line with global best practices. In this respect, the essay makes several recommendations.
- Models of Disability
Disability is as old as man. And throughout history, man has been searching for the best approach to the disability question. This has resulted in many progressive ideas widely regarded as models of disability. These include medical, charity, social, and human rights models.
2.1 Medical Model
This model was developed in the 19th century and was used to classify persons with disabilities based on their infirmity or medical conditions. According to Doma-Kutigi& Anigbogu, this model renders PWDs as dependents who need to be cured and cared for. Hence, they are disempowered on the basis of medical diagnosis used to regulate and control their access to social benefits, housing, education, leisure, relationships, and employment.
2.2 Charity Model
This model views PWDs as objects of arms and humanitarian assistance based chiefly on pity, kindness, and sometimes, religious obligations, which according to Eiesl and is a “disabling theology.” There is nothing wrong with doing charity. In fact, it is humanistic and should be encouraged. However, when the dice fall on PWDs, charity alone is not sustainable. While charitable activity for PWDs may be a means of creating justice, it subverts justice when it segregates PWDs from society and keeps them out of the public eye rather than empowering them for full social, economic, and political participation (Otieno).
2.3 Social Model
Coined by Mike Oliver, this model represents a movement from the individual with a disability (medical model) to the society or environment where the individual functions or does not function. It holds the view that people are not disabled merely by having one form of infirmity, illness, medical or physical challenges but by societal barriers which hinder or affect their full and equal participation as members of society. It is driven by the words “Nothing about us without us.”
2.4 Human Rights Model
This model is to the effect that the needs of PWDs cannot be seen as a mere humanistic gesture or charity but as inalienable human rights that are capable of enforcement. It is predicated on the Universal Declaration of Human Rights, 1948, which provides, inter alia, that “All human beings are born free and equal in rights and dignity.”It advocates for empowerment and accountability. Empowerment refers to the participation of PWDs as active stakeholders, while accountability relates to the duty of public institutions and structures to implement these rights and to justify the quality and quantity of implementation (Doma-Kutigi& Anigbogu).This was reiterated in the cases of Congo v Ecuador and Purohit&Moore v the Gambia(cited in Doma-Kutigi & Anigbogu, p.228)
- Global Best Practices
The ultimate standard on how to interface with lawyers with disabilities can be found in international best practices, as contained in various UN Conventions, especially the UN Convention on the Rights of Persons with Disabilities, 2006 (CRPD). It is the ultimate index by which the impacts of States, institutions, organisations, associations, etc. on PWDs are measured. Although only States are parties to and are bound by the provisions of the CRPD, it is submitted that nothing in the Convention precludes other institutions, organisations, associations, clubs, etc. from adopting and applying its provisions. The CRPD charges institutions to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (CRPD, 2006 Article 1).
Thus, institutions must take reasonable and effective steps to raise awareness throughout society regarding persons with disabilities, combat stereotypes, prejudices and harmful practices relating with persons with disabilities, and promote awareness of the capabilities and contributions of persons with disabilities and access to physical environment and employment(Article 8).The Convention further mandates institutions to collect disaggregated statistics and data respecting persons with disabilities relevant for international (and domestic) comparisons, policy-making and implementation (Article 31) and support research on disability and related services. (WHO Global Action Plan 2014-2021, p.3, para.12).The Convention does not see PWDs as “objects” of charity but as “subjects” of enforceable rights (WHO World Reports on Disability, p. 10).
- The Unsustainability of the Charity-based Structure of the Nigerian Bar Association (NBA)
4.1 The Objectification of Lawyers with Disabilities
The Constitution of the Nigerian Bar Association, 2015 (the Constitution) is the foundation upon which the NBA strives to further the rights and welfare of lawyers with disabilities in Nigeria. Regrettably, in violation of disability etiquette, the Constitution officially objectified lawyers with disabilities by using such derogatory and outdated words as “[the] incapacitated” (Sections 3(12) & 8(5)(h)(iii))
and “the disabled.” (The NBA Uniform Bye-Law for Branches (the Bye-Law) Article 20(1)(b)) to designate LWDs. In this way, the NBA renders LWDs as objects of charity. But it is a high fallacy to say that lawyers with disabilities are “incapacitated,” without more. In other words, ineffective and/or non-functional. The modern approach is to emphasise the person, the ability, and not the disability.
4.2 The Systematic Exclusion of Lawyers with Disabilities from the NBA’s Leadership Structure
Lawyers with disabilities have been largely disempowered and systematically excluded from the NBA’s leadership structure. This is because the NBA, as presently constituted, does not have any forum or committee specifically for lawyers with disabilities and the various fora within the NBA do not themselves, have subcommittees on lawyers with disabilities. To put this into a vivid context, a combined 1,799 page-document recovered from the NBA Website, reporting the various activities, schemes, and programmes of the NBA for the period of 2018 to 12 March 2020, shows that within this period, the NBA barely discussed any matters specific to lawyers with disabilities, except for once, when it was reported that the NEC was in negotiations with some insurance companies in respect of a life insurance scheme for members that would include “medical expenses, temporary and permanent disabilities, and critical illness benefits,”and two other instances where mentions were made generally to PWDs, in circumstances totally unconnected with the welfare of lawyers with disabilities.
What more, the shadow status of lawyers with disabilities is further consolidated by Section 7(5)(g) of the Constitution which provides that the NEC shall have the power to “appoint one of their members or a suitable member of the Association [that is, a person without a disability] to fill and/or perform the duties pertaining to a vacant office, which said vacancy may occur due to mental or physical infirmity or any other cause”.
4.3 Lawyers with Disabilities and the Nigeria Bar Association’s Welfare System
It must be stated that the NBA has a life insurance scheme for its members which covers death, accidental permanent total disability, and accidental medical expenses (https://nigerianbar.org.ng/life-insurance-scheme [accessed 23/6/2020]). In fact, in recent times, as part of its Covid-19 palliative measures for young lawyers, including lawyers with disabilities, the NBA made a one-year subscription with LawPavilion to provide online legal materials to young lawyers for one year and is in the process of distributing ten thousand Naira (N10,000) each to ten thousand, one hundred and twenty-six(10,126) young lawyers. But one must go beyond this to have a holistic view of the welfare of LWDs within the NBA. This is more so considering that the above measures are not sustainable. The life insurance scheme has been on and off and the palliative cash transfer is highly unlikely to repeat.
At the centre of the NBA’s welfare structure are the Welfare Secretary (Section 8(2)(h))and the Welfare Committee (Section 12(1)(h)). This is also true of the NBA Branches (See the NBA Uniform Bye-Laws for Branches Article 6(2)(1) and Article 10(5) which established the offices of the Branch Welfare Secretary and Welfare Committee respectively). The Welfare Secretary and the Welfare Committee (Welfare Department) are charged with advancing the welfare of lawyers with disabilities,inter alia. However, a critical analysis of the functions of the welfare department shows that there are no specific concrete programmes created for LWDs, and it has no power to initiate or originate any welfare schemes for LWDs in its own right, other than to “manage” or “administer” the programmes initiated (which are far between, if any) by the NBA, that is to say, the President and/or the National Executive Committee (NEC)(NBA Constitution, Section 8(5)(h)(3);12(3)(h)). The combined effect of the above dysfunctionality is that the Welfare Department of the NBA has no lifeof its own, other than the breath breathed into it by the President/NEC. Perhaps this accounts for why very little or nothing is done for LWDs from this department.
- Creation of NBA Lawyers with Disabilities Forum (LDF), whose Chairperson and Secretary shall be lawyers with disabilities and members of the NBA NEC. The LDF shall be responsible for the overall welfare of lawyers with disabilities, including law students with disabilities, and shall have the power to originate, initiate and undertake welfare schemes for lawyers with disabilities in its own right, independent of, but in synergy with, the NBA President and/or National Executive Committee and/or the NBA.
- The NBA should be accountable for lawyers with disabilities by regularly conducting lawyers with disabilities impact analysis, which would be an in-depth analysis of the disability diversity profile of members of the NBA through data collection and statistics. Also, lawyers and law firms should be encouraged and/or made to have a policy on disability diversity, similar to that obtainable at the English Bar. That is, both a written policy statement and a written plan of implementation.
iii. The NBA should amend its Constitution, inter alia, to remove the words “incapacitated” and “the disabled” and replace them with “persons with disabilities” and/or “lawyers with disabilities.” For “The difference between the right word and the almost-right word is the difference between lightning and a lightning bug” (Mark Twain).
- The NBA should activate Section 3(14) of the NBA Constitution in favour of lawyers with disabilities by creating an Endowment Fund specifically for the welfare of lawyers with disabilities, including law students with disabilities.
- The NBA should encourage and/or make the Bar employ lawyers with disabilities by way of incentivising lawyers and law firms that champion the course of lawyers with disabilities. More so, the NBA should influence the amendment of Regulation 15 of the Guidelines for the Conferment of Senior Advocates of Nigeria (SAN) 2017 to the effect that applicants for the rank of SAN should have, at least, one lawyer with a disability on their payroll, by prioritising the applications of applicants who meet this requirement over their counterparts who do not, all other requirements having been satisfied.
- The NBA should encourage lawyers with disabilities under the Association of Lawyers with Disabilities in Nigeria (ALDIN) to organise themselves even better and more effectively. A stronger ALDIN may eventually partner with and/or become an affiliate of the NBA for better and more effective protection of the welfare and rights of lawyers with disabilities.
The ultimate effect of the NBA’s charity-based system in dealing with lawyers with disabilities is that lawyers with disabilities continue to face social and structural barriers within the profession in all areas, including employment, as most employers (lawyers) see disability as a factor that could contribute to less productivity. Yet, hiring a lawyer with a disability squarely out of pity or charity is an ugly relic of the centuries past that should die with them. To put it firmly in the words of Lord Denning MR, such outdated thinking or doctrine is “a by-product of the old forms of action [behaviour]. Now that they are buried, it can be interred with their bones” (Chic Fashions (West Wales) Ltd v Jones (1968) 2 QB 299 at 313). While there is nothing wrong with doing charity, for a sustainable and inclusive legal profession, the NBA must look beyond charity and see the welfare of lawyers with disabilities as a human rights issue which it has an obligation to address.
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