ARTICLES

The right to inclusive education in Nigeria: Meeting the needs and challenges of children with disabilities

Bukola Ruth Akinbola

Lecturer, Faculty of Law, University of Ibadan, Nigeria

SUMMARY

The article examines the right to inclusive education in Nigeria. It asserts that the essence of the right to education is that it should be provided to all and without discrimination. It posits that, under Nigerian law, children with disabilities suffer many prejudices, including seclusion and discrimination in terms of education. It argues that such practices amount to a violation of the Nigerian commitments and obligations under international law to provide education for all and without discrimination. The article calls on the Nigerian government to put in place adequate laws and policies advancing the right of children with disabilities within its territory.

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* LLB (Ibadan), LLM (Ife), BL (NLS); brakinbola@gmail.com
1 CV Willie 'Brown v Board of Education: A restoration of equity in public education' in CJ Russo et al (eds) Equal educational opportunities: Comparative perspectives in education law (2005) 79.         [ Links ]
2 In terms of sec 277 of the Child's Rights Act, 2003 (Nigeria), a child means a person under the age of 18.
3 KD Beiter The protection of the right to education by international law (2006) 113-114.         [ Links ]
4 'Fight poverty: Children right issues' http://www.fightpoverty.mmbrico.com/cr/issues.html (accessed 21 September 2010).
5 As above.
6 As above.
7 As above.
8 Fact Sheet 4, Contemporary Forms of Slavery http://www.humanrights.is/the-human-rights-rpoject/humanrightscasesandmaterials/generalcomments/unfactsheets/No14contemporaryformofslave/ (accessed 21 September 2010).
9 UNICEF Reports.
10 http://www.un.org/disabilities/default.asp?id=18 (accessed 21 September 2010).
11 See R Rieser 'Disability equality - Confronting the oppression of the past' in M Cole (ed) Education, equality and human rights: Issues of gender, race, sexuality, disability and social class (2006) 118. Degener submits that more than 600 million people in the world are disabled as a consequence of mental, physical or sensory impairment, out of which two-thirds live in developing countries. See T Degener 'International disability law: A new legal subject on the rise: The interregional experts' meeting in Hong Kong, December 13-17, 1999' (2000) 18 Berkeley Journal of International Law 180 187; see also AM Cotter This ability: An international legal analysis of disability discrimination (2007) 15.
12 Rieser (n 11 above).
13 B Bekink & M Bekink 'Children with disabilities and their right to education: A call for action' (2005) 1 Stellenbosch Law Review 125 126.         [ Links ]
14 Bekink & Bekink (n 13 above) 126-127.
15 See Report of the United Nations High Commissioner for Human Rights to Economic and Social Council: Social and Human Rights Questions: Human Rights UN Doc E/2001/64 (18 May 2001) para 48.
16 UN Web Services Section, Department of Public Information, United Nations 2006; 'Factsheet on persons with disabilities' http://www.un.org/disabilities/default.asp?id=18 (accessed 21 September 2010).
17 Bekink & Bekink (n 13 above ) 127.
18 AM Cotter This ability: An international legal analysis of disability discrimination (2007) 15.         [ Links ]
19 Rieser (n 11 above).
20 Cotter (n 18 above) 15.
21 See arts 28 & 29 of CRC which guarantee the right of the child to education.
22 Art 23(3) of CRC obligates state parties to the Convention to ensure that the disabled child has effective access to education and training.
23 See art 10 of the Convention on the Elimination of Discrimination Against Women (CEDAW) 1979; arts 23, 28 & 29 of CRC; art 17 of the African Charter on Human and Peoples' Rights; art 11 of the African Charter on the Rights and Welfare of the Child; the UNESCO Convention Against Discrimination in Education 1960; the World Declaration on Education for All - Meeting Basic Learning Needs, adopted by the World Conference on Education for All on 9 March 1990; the European Convention 1953; the American Declaration of the Rights and Duties of Man 1948, amongst others.
24 See, generally, D Hodgson The human right to education (1998) 155-168.
25 UN General Assembly Resolution 3447 (XXX) of 9 December 1975.
26 UN General Assembly Resolution A/RES/48/96 of 20 December 1993.
27 UN General Assembly Resolution A/RES/61/106 of 24 January 2007.
28 Art 1 Disability Convention.
29 PK Longmore 'Disability policy and politics: Considering consumer influences' (2000) 11 journal of Disability Policy Studies 36; PK Longmore 'Disability policy and politics: Considering consumer influences' in P Blanck (ed) Disability rights (2005) 53.
30 T Shakespeare 'What is a disabled person?' in M Jones & LAB Marks (eds) Disability, divers-ability and legal change (1999) 26.
31 See Standard Rules on the Equalisation of Opportunities for Disabled People, annexed to General Assembly Resolution A/RES/48/96 (1993) para 17.
32 As above.
33 Para (e), Preamble to the Disability Convention.
34 Rieser (n 11 above) 158.
35 See L Lundy 'Schoolchildren and health: The role of international human rights law' in N Harris & P Meredith (eds) Children, education and health (International perspectives on law and policy) (2005) 11.
36 See J Stainback & L Stainback Inclusion: A guide for educators (2002) 3.
37 S Naicker Curriculum 2005: A space for all - An introduction to inclusive education (1999) 53.         [ Links ]
38 P Engelbrecht & L Green Promoting learner development (2001) 6.         [ Links ]
39 See art 28(1) of CRC.
40 See art 23(3) of CRC which recognises the special needs of the disabled child and ensures that the disabled child 'has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development'.
41 See, amongst others, CRC Committee, Concluding Observations: Azerbaijan (UN Doc CRC/C/66, 1997) para 296; CRC Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland-Isle of Man (UN Doc CRC/C/100, 2000), para 195; CRC Committee, Concluding Observations: Niger (UN Doc CRC/C/118, 2002) paras 179-180; CRC Committee, Concluding Observations: New Zealand (UN Doc CRC/C/133, 2004), para 152; CRC Committee, General Comment 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child (UN Doc CRC/GC/2003/4, 2003) para 19.
42 Beiter (n 3 above) 85.
43 Nigeria has ratified some of these conventions. It ratified ICESCR and ICCPR on 29 July 1993; the African Charter on 22 June 1983; the African Children's Charter on 23 July 2001; CEDAW on 23 April 1984; ICERD on 16 October 1967; CRC on 19 April 1991. See, generally, EA Taiwo 'The implementation of the right to education in South Africa and Nigeria' seminar presented at the Faculty of Law, University of Ibadan, Nigeria, 15 February 2010 1-2.
44 See art 26 which provides for the right of everyone to education.
45 Beiter (n 3 above) 90.
46 The provision proceeds to set out the aims of education. It repeats a similar provision as contained in art 26(2) of the Universal Declaration with some modifications.
47 Arts 13(2)(a)-(d).
48 See arts 28, 29, 30 & 31 of CRC. Art 28(1), eg, states: 'States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular (a) make primary education compulsory and available free to all; (b) encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures See also D Fottrell (ed) Revisiting children's rights: 10 years of the UN Convention on the Rights of the Child (2000) 1.
49 The article provides recognition for the right of (1) the mentally and physically disabled child to enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community; and (2) the disabled child to special care and encouragement to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. See also principle 6 of the UN GA Declaration on the Rights of Disabled Persons adopted on 9 December 1975, which provides for the right to 'medical, psychological and functional treatment, including prosthetic and orthetic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and skills to the maximum and will hasten the processes of their social integration or reintegration'. See UNGA Resolution 3447 (XXX) of 9 December 1975. See also principle 2 of the Declaration on the Rights of Mentally-Retarded Persons, adopted by the UNGA Resolution 2856 (XXVI) of 20 December 1971, which also provides for the right of the mentally-retarded person to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
50 It has similar provisions to arts 28 & 29 of CRC.
51 Art 11 African Children's Charter.
52 Art 11(3)(e) African Children's Charter.
53 Ratified on 29 October 1993.
54 See Ratification and Enforcement Act of 17 March 1983.
55 See generally Taiwo (n 43 above) 9.
56 See, however, art 2 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), 1952, which states that no person shall be denied the right to education; art 13 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador Protocol), 1988 also guarantees the right to education.
57 http://www.crin.org/resources/infoDetail.asp?ID=18055&flag=report (accessed 21 September 2010).
58 As above.
59 The Protocol to the African Charter entered into force in 2006.
60 See art 44 of the African Children's Charter.
61 As above.
62 Sec 18(1) Nigerian Constitution 1999.
63 Sec 18(3) Nigerian Constitution 1999.
64  The UBE was backed in 2004 by the UBE Act.
65 See sec 15(1) of the Act.
66 Sec 6(6)(c) of the Constitution provides: 'The judicial powers vested in accordance with the forgoing provisions of this section shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.'
67 [1991] 6 NWLR (pt 200) 708 761-762.
68 See also D Olowu 'Human rights and the avoidance of domestic implementation: The phenomenon of non-justiciable constitutional guarantees' (2006) 69 Saskatchewan Law Review 39 41.
69 See secs 15(1) & (2) of the Child Rights Act which oblige the government of Nigeria, parents and guardians to ensure that their children and wards attend schools up to, at least, junior secondary school.
70 Registered Trustees of the Socio-Economic Rights & Accountability Project (SERAP) v Federal Republic of Nigeria & Universal Basic Education Commission (Suit ECW/CCJ/ App/0808) delivered on 27 October 2009. The court held at para 19: 'It is trite law that this court is empowered to apply the provisions of the African Charter on Human and Peoples' Rights and article 17 thereof guarantees the right to education. It is well established that the rights guaranteed by the African Charter on Human and Peoples' Rights are justiciable before this court. Therefore, since the plaintiff's application was in pursuance of a right guaranteed by the provisions of the African Charter, the contention of second defendant that the right to education is not justiciable as it falls within the directive principles of state policy cannot hold.' See also Attorney-General, Ondo State v Attorney-General, Federation of Nigeria [2002] 9 NWLR (pt 772) 222.
71 [2004] 4 NWLR (pt 864) 580 659.
72 Degener (n 11 above) 180.
73 As above.
74 As above.
75 As above.
76 As above.
77 As above.
78 Degener (n 11 above) 181.
79 General Assembly Resolution 2856 (XXVI) of 20 December 1971.
80 Art 1.
81 General Assembly Resolution 3447 (XXX) of 9 December 1975.
82 Para 4.
83 Para 5.
84 Para 6.
85 Para 8, which requires that their special needs be taken into consideration at all stages of economic and social planning; para 10 on the right to protection against exploitation and treatment of an abusive or degrading nature; and para 12 which states the right of an organisation of persons with disabilities to be 'usefully consulted in all matters regarding the rights of disabled persons'. See also the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities adopted by the United Nations General Assembly by Resolution 48/96 of 20 December 1993.
86 Adopted on 13 December 2006.
87 Art 24(1).
88 Arts 24(1)(a)-(c).
89 Arts 24(2)(a)-(e).
90 Art 24(4).
91 J Addison, as quoted by O Ikejiani Nigerian education (1964) 19.         [ Links ]
92 GE Devenish 'Aspects of the right to education in the Constitution' (1998) 2 De Jure 224-225;         [ Links ] see also M Verheyde Article 28: The right to education (2006) 7; Bekink & Bekink (n 13 above) 125; Beiter (n 3 above) 28.
93 See Taiwo (n 43 above) 12, citing F Coomans 'Content and scope of the right to education as a human right and obstacles to its realisation' in Y Donders & V Volodin (eds) Human rights in education, science and culture: Legal developments and challenges (2007) 183 185.
94 See Taiwo (n 43 above) 12; Beiter (n 3 above) 29.
95 Brown v Board of Education of Topeka 347 US 438 (1954).
96 Taiwo (n 43 above) 12.
97 See Devenish (n 92 above) 225; Taiwo (n 43 above) 12.
98 See G Bekker Compilation of essential documents on the right to education (Part 1) http://www.chr.up.ac.za/centre_projects/socio/compilation2part1.html (accessed 6 February 2010).
99 See K Tomasevski The right to education Report of the Special Rapporteur submitted pursuant to Commission on Human Rights Resolution 2002/23, E/CN4/2003/9.
100 My emphasis.
101 Tomasevski (n 99 above).
102 As above.
103 ESCR Committee in its General Comment 5: Persons with Disabilities (1994) (UN Doc HRI/GEN/1/Rev 7, 2004) para 6.
104 Art 28(1) CRC.
105 See Australian cases of Welsh v Commissioner, Soil Conservation Service of NSW (1991) EOC 92-330; L v Minister for Education (1996) EOC 92-787.
106 LA Basser & M Jones 'Fostering inclusive societal values though law' (2002) 10 The International Journal of Children's Rights 390.         [ Links ]
107 As above.
108 It was only in 1995 that the Discrimination Act finally reached the statute books in Britain. The Act requires that disabled people be afforded genuine equality. The Act established a National Disability Council which was replaced by Disability Rights Commission in April 2000. The Act has been criticised as being dependent on individual enforcement rather than proactive or preventive action, and because of its limited impact. The Act covers only areas, namely employment, the provisions of goods, facilities and services, premises, education, and transport. Discrimination outside of the specified area is not outlawed. Even within these fields there are significant exceptions. See S Fredman Discrimination law (2002) 58-59 83. See the UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities which came into being on 20 December 1993; the Vocational Rehabilitation and Employment (Disabled Persons) Recommendation (No 159) and Rehabilitation and Employment (Disabled Persons) Recommendation (No 186). The Nigerians With Disabilities Decree came into force in 1993, followed by the Disability Discrimination Act of 2001. The Americans with Disabilities Act is also as recent as 1990.
109 Cap E3, Laws of the Federation of Nigeria (LFN) 2004.
110 See sec 25 of the Education Act, Cap E3, LFN 2004.
111 In terms of the National Policy on Education 2004, the term 'disabled' refers to people with impairments, physical or sensory, and who because of this impairment/ disability cannot cope with regular school/class organisation and methods without formal special educational training. In this category are the visually impaired (blind and the partially sighted); hearing impaired (deaf and the partially hearing); physically and health impaired (deformed limbs, asthmatic); mentally retarded (educable, trainable and bed-ridden); emotionally disturbed (hyperactive, hypoactive/the socially maladjusted/behaviour disorder); speech impaired (stutterers); learning disabled (psychological/neurological educational phobia or challenges); and multiply handicapped. See paras 94(i)(a)-(h) of the National Policy on Education 2004.
112 Para 96(b) of the National Policy on Education 2004.
113 Para 96(c) of the National Policy on Education 2004.
114 Paras 96(c)(i)-(v) of the National Policy on Education 2004.
115 Para 96(c)(vi) of the National Policy on Education 2004.
116 Para 97 of the National Policy on Education 2004.
117 Para 96(d) of the National Policy on Education 2004.
118 See sec 25 of the Education Act Cap E3, LFN 2004.
119 Rule 6.
120 See Final Report of the Special Rapporteur of the Commission for Social Development Monitoring the implementation of the standard rules on the equalisation of opportunities for persons with disabilities (Geneva: United Nations, 2003) A/52/56 annex.
121 See, eg, its report on the Solomon Islands: United Nations Committee on the Rights of the Child, Concluding observations: Solomon Islands (2003) CRC/C 15/Add 208 para 38(c).
122 See CESCR Committee, General Comment 5: Persons with Disabilities (1994) (UN Doc HRI/GEN/1/Rev 7, 2004).
123 M Verheyde A commentary on the United Nations Convention on the Rights of the Child: Article 28: The right to education (2006) 44.         [ Links ]
124 Art 23(3) of CRC states: 'Recognising the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.'
125 n 41 above.
126 K Tomasevski Right to education primer 3: Human rights obligations: Making education available, accessible, acceptable and adaptable (2001) 32; see also Rule 6 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, adopted on 20 December 1993 (UN Doc A/RES/48/96).
127 ESCR Committee General Comment 5: Persons with Disabilities 32 para 35.